(dissenting).
The present ease shows a difference of view and decision between the Second and Third Circuits as to patent No. 1,258,423 to Fritz Lowenstein for “a variable electrical apparatus.” In the District of Connecticut this patent was considered by Judge Thomas, whose opinion is reported at 21 F.(2d) 630. He held the patent valid and infringed. Thereafter the same patent came before the *499United States District Court for tlie Eastern District of Pennsylvania. The ease was tried by Judge Thompson, then District Judge. After an independent study thereof, for it was against a different defendant, Judge Thompson found himself in accord with, the reasoning and conclusions of Judge Thomas and likewise held the patent valid and infringed. He agreed with, and in his opinion reported at 48 F.(2d) 875, 879, quoted, the view of Judge Thomas, namely, that the device of tho defendant in that ease, as also in the present one, was “the same in kind and effected by the employment of his (the plaintiff’s) mode of operation in substance.” In addition, Judge Thompson found as facts, and ho had evidence from which ho could so find, that
“1. The condenser of the patent in suit is so constructed that given angular displacement of the movable plates produces substantially the same percentage changes in capacity at any point within the range of the instrument.
“2. The condenser of the patent in suit having the logarithmic characteristic is not by its claims limited to a construction where all the capacity is located in the condenser as a single unit.
“3. The patent in suit includes a condenser, the capacity of which may be in series with a fixed capacity, resulting together in a circuit capacity having the logarithmic characteristic.
“4. The logarithmic characteristic of the patented condenser is accomplished by such a distribution of the area, of the movable plates that, by the turning of the shaft, the capacity is introduced more gradually at the high frequency end of the working range of the instrument than at the low frequency end.
“5. The defendant’s gang condenser is so constructed that given angular displacement of its movable plates produces substantially tho same percentage changes in the total circuit capacity at any point within tho range of the instrument.
“6. While the defendant’s gang condenser is not shown to be so constructed that given angular displacement of the movable plates of each unit active between the stationary plates is in accordance with the logarithmic law, the result of the displacement of the movable plates of the units acting together in series with the entire circuit is substantially the same as in the patented condenser, and it is accomplished in the same way.
“7. The patent in suit is not anticipated by the prior art.”
As to the practical working effect of Lo-wenstein’s invention, I regard it as a departure from preceding practice and a notable advance in the art, and I find nothing in the record or in tho discussion of the patent to controvert that view of its original and meritorious character. Without, however, again discussing tlie patent, which has been done by tho two experienced trial judges, I find myself in accord with their conclusions and with the findings of fact of Judge Thompson in the present case. I therefore range myself with them, and while it is unfortunate that I differ from my colleagues, whose views are set forth at length in the scholarly and able opinion of this court, and it is regrettable that diversity of view and decision has arisen between the Second and Third Circuits as to this patent, I am nevertheless, in view of its importance in the working art, constrained to differ with my colleagues in tho present ease and respectfully record my dissent.