Rasmusson

This is an appeal from an interlocutory decree of the District Court adjudging defendants-appellants guilty of infringement of three patents collectively owned by the plaintiffs-appellees.

The patents in suit are: (1) The Burt process patent No. 1,470,524, as to claims 1, 2 and 5; (2) the Epperson patent No. 1,-505,592, as to claims 2 to 7, inclusive; and (3) the Burt product patent No. 1,718,997, as to claims 1, 3, 5, and 7. Of these, only claim 5 of the Burt process patent No. 1,-470.524 and claims 3 and 5 of the Burt product patent No. 1,718,997, were not involved in the adjudication of invalidity in Icyclair, Inc., v. National Popsicle Corp., 9 Cir., 94 F.2d 669 . The decision of the District Court was rendered prior to our decision in that case.

Claim 5 of Burt process patent No. 1,-470.524 is described as: “The process of making a frozen confection which consists in bringing a handle member in contact with a body of edible substance which is fluid at normal temperatures, subjecting the body to refrigeration whereby it is solidified and thereby attached to the handle by congelation, and applying a protective outer coating of a material which is hard at normal temperatures…