(dissenting).
As I see it, the patentee did no more than take the well-known armored cable already in wide use commercially and substitute for the customary braided fabric next the armor compressible material spirally wound. In practice, that means that he used paper laid in spirals instead of the braided fabric. Though Daram dealt with a conduit instead of a cable and his product ma,y well be said to have been in many respects dissimilar to that of the patent, he did disclose spirally wound paper in the same place relatively. To be sure, his paper so wound was stuck to a cardboard casing and not meant to be pulled off j yet the thought that paper was usable there was hardly a new one after Daram. That paper so used without adhesive could be pulled out to some extent depending upon the closeness of the winding of the outside metal sheath seems obvious enough. And equally obvious is the fact that when pulled out and broken off some space would be provided for the insertion of a bushing. Bushings were old.
Nor can I believe that extensive use in this instance should be considered to have any effect on the patentee’s disclosure as the basis of a patent. The opportunity was seized upon to fix prices by moans of licenses under the patent, and apparently made it advantageous to become a licensee on that score alone, since flexible armored cable as a whole which the patent touched only in a very minor degree from the standpoint of cost of manufacture, and probably only to make production actually cheaper, was included in the price fixing.
Furthermore, the defendant’s bushing is to be put over the paper without pulling any out to provide added space for its insertion, and its cable is made so that this can be done. Its product is sold with instructions to put the bushing over the paper. By so doing, the wires at the cut end are better protected to the extent that the paper affords any pi'otection at all, and so the defendant, it seems to mo, not only does not infringe, but actually pro-vides what is a better product by making a *1000cable that, can be busbed without destroying any insulation at the cut end. Only by assuming that the user will put in the bushing in the way of the patent, notwithstanding the instructions of the defendant and sacrifice whatever protection the paper, under the bushing will give to the wires can infringement, even contributory, be made out.
Though deference to the opinion of my brothers is not without its appeal, I would affirm the decree of the District Court.