McCullough

This causé is here upon appeals from two judgments of the district court holding a patent numbered 1,625,391, hereinafter called the Reilly-Stone patent, owned by appellee Kammerer Corporation of which appellee Baash-Ross Tool Company is sole licensee, valid and infringed by three of appellant’s products. A permanent injunction was granted and a reference ordered for the determination of damages. The devices in question are tools used in the oil industry for cutting and removing frozen or stuck drill pipes from wells. There were two suits below against appellant, the second for a device added to the devices claimed in the first suit as infringing the patent. Upon stipulation the two suits were ordered consolidated for trial and for all other purposes. However, they were treated as if separate cases having common evidence. The opinion of District Judge Yank-wich with accompanying reproductions of a tool described in the patent is reported in 39 F.Supp. 213 . We affirm the judgments of the District Court, considering here only the appellant’s claim of error.

The Reilly-Stone patent specifies and claims an improvement over the device of a prior patent, No. 1,277,600, hereinafter…

(dissenting in part).

*485 Appellees, Kammerer Corporation and Baash-Ross Tool Company, brought two suits against Otis J. McCullough, Ray Andrade and appellant, Ira J. McCullough, for infringement of claims 1-9, 12, 14-18 and 21 of patent No. 1,625,391, 1 of which Kammerer Corporation was the owner and Baash-Ross Tool Company was, in the United States, sole licensee. Defenses were that the claims were invalid, and that, if valid, they were not'infringed. The suits were consolidated and tried by the court. The court held the claims valid and infringed by appellant. If accordingly entered judgments which dismissed the suits as to Otis J. McCullough and Ray Andrade, enjoined appellant 2 from infringing the claims and ordered an accounting of profits and damages. Appellant seeks reversal.

Patent No. 1,625,391 was applied for by John B. Reilly and Charles H. Stone (assignors of Kammerer Corporation) on July 19, 1923, and was issued to them on April 19, 1927. It describes and claims as Reilly and Stone’s invention a tool for cutting and removing pipe from wells. Such tools were in common use long before Reilly and Stone’s claimed invention. Some were described in the following…