(dissenting).
The evidence in the present record is substantially the same as was that in the ease whieh went to the Supreme Court on appeal from the Third Circuit. So Judge Campbell found, and the appellant does not really dispute it. Upon such evidence the Circuit Court off Appeals for the Third Circuit awarded De Forest priority of invention over Armstrong, and the Supreme Court, in affirming, necessarily adopted that finding. Armstrong is financing the defense of the present suit and is obviously trying to obtain from us a decision that the De Forest patents are invalid in order that he may again argue before the Supreme Court the issue upon whieh he was previously defeated. No new evidence has been presented and no new arguments are advanced; the argument is merely that the Third Circuit decision was wrong. It is true that Armstrong is not the defendant so that no principle of res judicata is applicable; but since the Supreme Court accepted that decision as correct, I think we should do likewise on the same record. Even patent litigation should some time reach an end, and on the issue of priority between Armstrong and De Forest I would hold that the end was reached, in the absence of new evidence, when the Supreme Court rendered its judgment in Westinghouse Electric & Mfg. Co. v. De Forest Radio Tel. & Tel. Co., 278 U. S. 562, 49 S. Ct. 34, 73 L. Ed. 507. Compare Rousso v. Barber, 3 F.(2d) 740 (C. C. A. 3), and Rousso v. First Nat. Bank, 37 F.(2d) 281, 284 (C. C. A. 6). In my opinion the decree should be affirmed.