(dissenting).
I do not believe that this court lacks the power to remedy an apparent fraud perpetrated on it eleven years ago. On December 29, 1941, we filed a per curiam opinion in the instant cases, 125 F.2d 976, 977, declaring that this court would “ * * * pass upon the question of whether the mandates of this court should be recalled and the cases reopened * * * ”, rather than grant the prayers of the original petitions which were for leave to file bills of review in the district court.
The petitions in their present form are in substance bills for relief against decrees on the ground of fraud. As was stated in Taylor v. Easton, 8 Cir., 180 F. 363, 368, the time within which such bills must be filed is governed by the general equitable rule of laches and is not limited by the end of the term at which the decrees were entered. Technicalities of form have not been insisted upon in respect to such bills, and a bill not sustainable as a bill of review, may be treated as a bill to set aside a decree for fraud if it contains the necessary allegations. Cyclopedia of Federal Procedure, Vol. IV, p. 347, citing Dunlevy v. Dunlevy, C.C., 38 F. 459. Concededly, with the exception of the two decisions by the Circuit Court of Appeals for the Second Circuit, which are discussed more at length hereafter, I can find no authority for the proposition that bills or petitions seeking the relief sought here may be filed to a circuit court of appeals, but under the peculiar circumstances of this case (particularly in view of the fact that this is the court upon which the fraud was perpetrated), I can perceive no valid reason why, despite the end of the terms, we should not act to preserve our appellate jurisdiction. The word “bill” of course connotes an original action precisely as the *771word “petition” connotes an action ancillary to a proceeding already pending but this distinction, which is at best a technical one, affords little support for the position of the respondent in the cases at bar.
The majority opinion is based upon two grounds. The first is an alleged lack of power in this court to set aside the decrees of this court after the end of the terms at which our mandates were dispatched. The second ground is the belief that the fraud worked upon this court did not effect the entry of the decrees complained of. I think that we do possess the power to set aside the two decrees in question if the evidence warrants. I think also that the fraud which was apparently practiced upon this tribunal did serve to effect the decisions óf this court. Whether we should act upon the petitions depends, in my opinion, on whether the facts alleged in them tend to show sufficiently the nature and extent of the fraud that was perpetrated upon this court and whether the petitioners were diligent in presenting the facts relating to the fraud to this court as soon as those facts became pertinent.
As to our jurisdiction to receive these petitions and to pass upon the matters raised by them, I am not unmindful of the fact, as I have indicated, that such bills or petitions are ordinarily presented to the court below upon grant of leave to do so by the appellate tribunal, but the apparent facts in the cases at bar bear an analogy to the circumstances which were before the Circuit Court of Appeals for the Second Circuit in Art Metal Works v. Abraham & Straus, 107 F.2d 940, and Id., 107 F.2d 944, certiorari denied 308 U.S. 621, 60 S.Ct. 293, 84 L.Ed. 518.
The pertinent facts in the Art Metal Works cases are as follows. One of the members of that court had been corrupted. The tribunal thereupon reconstituted itself, and after applications similar in form to those before us had been filed with it, itself reheard the cases. The fraud was practiced upon the circuit court of appeals and therefore that court heard the matters raised by the petitions and disposed of them. The court acted to protect the integrity of its appellate jurisdiction. The majority of this court take the position that by reason of the corruption of one of the judges of the Circuit Court of Appeals for the Second Circuit that tribunal never decided the appeals before it and the appeals were coram non judice and that therefore the jurisdiction of the circuit court of appeals could not have come to an end despite the fact that five years and as many terms had elapsed since the original decrees had been filed and the mandates dispatched. There is no indication, however, in the opinions of the court that jurisdiction was predicated upon any such theory. The question of jurisdiction after the end of the term was not even discussed. Though there is a great distinction between a corrupt judge and one who may be disqualified in a case because he has a pecuniary interest, a legal analogy is presented by the two situations. It is the law that judgments rendered by a pecuniarily interested judge are not void but are merely voidable. Utz & Dunn Co. v. Regulator Co., 8 Cir., 213 F. 315; Owens v. Dancy, 8 Cir., 36 F.2d 882; In re Fox West Coast Theaters, D. C., 25 F.Supp. 250; Crites v. Radtke, D. C., 29 F.Supp. 970. In my opinion the decrees in the Art Metal Works cases were valid until the circuit court of appeals itself set them aside. Certainly the mandates were honored in the court to which they were dispatched. I think that it is more probable that the circuit court of appeals treated the petitions in the Art Metal Works cases as if they were bills to relieve from decrees on the ground of fraud and granted relief and rehearings because that fraud was glaringly apparent. The difference between the Art Metal Works cases and those at bar seems to me to be only one of degree. In the former cases a litigant had corrupted the court. In the cases at bar, if the allegations of the petitions and the supporting affidavits are correct, a litigant has corrupted the record by knowingly inserting fraudulent matter therein and calling the corrupt matter to the attention of this tribunal. In neither the Art Metal Works cases nor in the cases at bar was the fraud perpetrated upon the lower courts. The significant fact is that the fraud was worked upon the appellate tribunals.
In No. 4414 the fraud was perpetrated upon this court. That fraud was perpetuated in No. 5203 because the court followed the ruling established in No. 4414. In the case at our No. 4414, the Clarke article was not referred to in the briefs of counsel in the court below and it was not mentioned in the opinion of the trial judge. It came into the record as a part of the file wrapper history of the Peiler patent and *772it had been fabricated for the purpose of deluding the Patent Office.1 The fraud had no effect upon the district court which gave the Peiler claims in issue a narrow construction. The Clarke article, under the title “Introduction of Automatic Glass Working Machinery; How Received by Organized Labor”, was served up to this court upon Hartford-Empire’s brief and a majority of this court did eat thereof. The fraud, therefore, was upon this court and affected its appellate jurisdiction. In view of these facts should we not ourselves dispose of the matters raised by the petitions? We have at our disposal every writ necessary to protect and maintain our jurisdiction. See Section 262 of the Judicial Code, 28 U.S.C.A. § 377.
The majority’s answer to this argument is that at the end of each term our jurisdiction over appeals in which valid mandates have gone down at that term is at an end; that otherwise there would never be an end to litigation; and that by filing an original bill in the district court that court might set aside or enjoin the enforcement of its decrees entered in these causes upon our respective mandates. Precisely the same arguments could have been made to the Circuit Court of Appeals for the Second Circuit in the Art Metal Works cases but that court did not proceed upon such a theory. The fraud on this court cannot be relieved by way of proceedings on bills for review or original bills filed in the district court.
The fraudulent matter, the Clarke article, was offered in the court below for no other purpose than to prove what had taken place in the Patent Office in respect to Peiler’s application. The court below was not in error in admitting it for such a purpose. It did not use the Clarke article as proof that Peiler had made a basic contribution to the art of glass bottle blowing. Quite erroneously, as a matter of law, this court did make use of it for that very purpose. What then would be before the court below on bills for review or original bills to set aside the decree entered in the lower tribunal on our mandate ? The court below could not take the position which it took at the trial of the cause on appeal at our No. 4414, viz., that the Clarke article, as part of file wrapper history, could be employed only to prove what had taken place in the Patent Office in respect to the Peiler application. This court settled the law of the case in that respect in our decision at No. 4414. The district court on original bills or bills for review would receive evidence as to the fraud practiced on this court in respect to the Clarke article. If it made a finding of fraud and as a result of that finding ordered the decrees entered on our mandates to be set aside, this court, on appeal, would be compelled to hold that the very fraud found was immaterial because file wrapper history is not competent evidence to prove the basic position of a patent in the art. The result would be farcical and the fraud which effected our decree would stand unimpaired.
I think' there is a reasonable answer to these questions. The fraud is one which was worked, as I have stated, upon our appellate jurisdiction. It came within the ambit of this court on appeal. That fraud can be relieved of only by the exercise of our appellate jurisdiction precisely as the fraud worked upon the Circuit Court of Appeals for the Second Circuit could be cured only by that tribunal. If we do not exercise our jurisdiction the petitioners will be without relief from the fraud practiced upon this court. If fraud effected our decree at No. 4414, this court as a matter of justice should grant rehearings both at No. 4414 and at No. 5203.
Turning now to the petition at No. 4414, I cannot agree with the majority that it does not appear that the Clarke article was “ * * * so basic to this court’s decision in the Hazel-Atlas case that, upon the showing of fraud in the article’s authorship, we would be justified in setting aside the orders in the Hazel-Atlas and Shawkee cases * * Judge Buffington’s numerous and extensive quotations from the Clarke article indicate its importance to his decision. But one need not seek to deduce the court’s mental processes. At an early point in the opinion, after tracing the *773development of mechanical glass blowing, and referring to the Clarke article, Judge Buffington stated: “As we have indicated, the labor organizations were vitally interested in the supplanting of hand blowing by mechanical blowers, and we naturally look to the proceedings of their several organizations to find what machine blowers were of practical working capacity and ones which they regarded as supplanting lung blowing. We can therefore, and do, rely on their opinion in that regard, for successful machine blowers largely spelled ending of the supremacy of lung blowing.” 59 F.2d 399, at page 401. Judge Buffington also stated, 59 F.2d at page 404, “This new machine and its new and differentiating elements were tersely stated in such [the Clarke] article as follows: ‘Instead of envploying a stream of glass which collected in the mold until the desired mold charge had accumvulated, these new feeders cut off a suspended chunk or gob of glass which was pre-formed during suspension to correspond, to some extent, at least, to the shape of the mold cavity in which it was to be received.’ We shall later see that in these few words this practical glass blower official summarized the novel characteristics of the machine which is the subject-matter of this suit. And be it observed, he notes the exact differences between Owens and this new machine.”
Believing that the Clarke article actually represented the words “of a practical glass blower official”,2 the majority of this court brushed aside most pertinent evidence as to plunger-shear feeders of the prior art, saying, “We may safely assume these futile devices did not enter into the situation then and should not now, * * 59 F.2d at page 412.
Bear in mind that an important question before this court on the Hartford-Empire appeal was whether the claims in issue of the Peiler patent were entitled to a broad construction or whether they were to be construed narrowly.3 If they were construed broadly they were infringed; but, if their scope was held to be narrow, they were not infringed. If Peiler’s disclosures constituted a basic contribution to the art of glass blowing and bottle making, his patent was entitled to be treated as a basic patent in the art and his claims construed accordingly. The alleged dominant position of Peiler’s device, supposedly conceded even by the president of a labor union antipathetic to such devices, was a most important factor in this court’s decision. The court thought that the Clarke article represented the opinion of members of a labor union in respect to a labor saving device and said, “We can therefore, and do, rely on their opinion in that regard * * *
Can it be believed that Judge Buffington would have quoted from or accredited the contents of this article if he had been aware that it had emanated from certain of Hartford-Empire’s counsel who had employed it to perpetrate a fraud on the United States Patent Office? The answer must certainly be in the negative.
The majority state, “No substantial complaint has yet been made that what the [Clarke] article contained in material part, namely, the ascendency of gob-feeders over stream feeders, was factually false.” But the alleged basic position and the asserted commercial success of the Peiler device were the important items which, in my opinion, caused this court to give the claims in issue a very broad interpretation. Moreover, whether the statement of the majority which I have quoted, be correct or not, seems to me to be immaterial in view of the fraudulent authorship of the asserted fact. The deception practiced in *774the Clarke article was pertinent in effecting the judgment of the majority of this court and therefore the lack of truth or the inaccuracies of the article, published under what is alleged to be a false authorship, also becomes pertinent.
A chart showing the “Relative Bottle Production on Machines and Gob Feeders” was attached to the Clarke article and was a part of it. This chart purports to demonstrate by two so-called “production” curves, the commercial success of the gob-feeder such as Peiler’s. In a letter sent by Henry W. Carter, who was then the treasurer of The Owens Bottle Company, to Hatch, Carter stated, “Am not sure that I quite understand your ‘increase’ line. The falling off for Owens in 1921 was entirely due, I take it, to the general collapse of business during that year, and I should expect it to be more or less paralleled by a falling off in feeder production.” Hatch wrote to Carter in reply, and stated in part, “I appreciate your comments very much indeed and I think there is but one point on which you failed to appreciate my exact position. That is, I prepared this article so far as possible with reference only to the proceedings of The Bottle Blowers Association and knowingly and intentionally I reproduced some of the errors found therein. For example, in any statement as to the number of Owens machines in use, I have used the numbers given in the proceedings, even when I knew this was not correct. The point I have in mind is that if I can get the President of the Association to publish this I thought that he should base all of his statements on their printed records except where such statements had a direct bearing on the particular point which we wished to bring out. I fully appreciate your remarks on the ‘Brooke Flow’, but I thought it necessary to go into this because page after page of the proceedings is taken up with the discussion of this device. In fact, it came close to causing as much discussion as did the Owens machine. Another reason for considering the Brooke Flow is the fact that the name which they have used throughout all of their proceedings, even up to date, comes from the Brooke device. That is they call all feeders ‘Pouring’ or ‘Flow’ devices. As I recall it the expression ‘Gob Feeders’ does not occur anywhere in the entire report.”
Though the words last quoted show a deliberate intention to avoid truthfulness, the most important element of the fraud must be pointed out. It consists of nothing less than this. Apparently, at no place in the proceedings of the Bottle Blowers Association, to which Hatch referred, was any reference made to gob-feeders; viz., to devices such as Peiler’s. The assimilation of gob-feeders such as Peiler’s to the proceedings of the Bottle Blowers Association, when those proceedings in fact make no reference to them, is the heart and essence of the fraud. The fabrication was necessary to tie the Peiler device into the proceedings of the Bottle Blowers Association and thus, to deceive the Patent Office. I think that Judge Buffington and this court were deceived in precisely the fashion that Hartford-Empire intended.
As I have stated, the nature of the contents ' of the Clarke article and the chart attached to it was emphasized on the brief of Hartford-Empire.4 The facts relating to the Clarke article were not before this court at the time the case was argued. It is true, as the majority state, that counsel for Nivison-Weiskopf Co. informed counsel for Hazel-Atlas that Hatch had written the Clarke article at the time of the trial of the suit of Hartford-Empire v. *775Hazel-Atlas in the court below. But it must be borne in mind as I have repeatedly stated that the file wrapper history of the Peiler patent which contained the Clarke article was offered in the court below only to show what had been before the Patent Office and was competent evidence for no other purpose. I think that counsel for Hazel-Atlas could not have kept the file wrapper history out of the record for the purpose for which it was offered and I doubt that proof of the Clarke article’s authorship would have been pertinent or admissible at the trial. Counsel for Hazel-Atlas were not negligent at the time of the trial in not endeavoring to prove that Hatch had written the Clarke article. It was not until the appeal came before this court that counsel for Hartford-Empire brought the article forward as proof of the dominant position of the Peiler device in the art. As already stated this court accepted the article not to show what had transpired in the Patent Office but as proof of dominant position and commercial success. That a circuit court of appeals should treat matter contained in the file wrapper history of the patent in issue as offering proof of dominant position in the art is so extraordinary, that, in my opinion, counsel for Hazel-Atlas could scarcely be expected to endeavor to adduce evidence that Hatch had written the Clarke article when their opponents offered it as such proof to this court. It was not until this court had pursued the extraordinary course of accepting the Clarke article as proof of Peiler’s position and had demonstrated this in its opinion, that Hazel-Atlas attempted to find proof to present to this court that Hatch had written the Clarke article.
An affidavit was procured from counsel for the Nivison-Weiskopf Company on or about May 17, 1932, and Hazel-Atlas engaged a firm of private detectives to make an investigation. An employee of this firm, McCarthy, promptly proceeded to try to get the essential information from Clarke. Clarke refused to give McCarthy the facts concerning the fraud and informed him that he, Clarke, had in fact written the article and had done so for the public good.5 Clarke even refused to furnish Hazel-Atlas with a photostatic copy of the article. At about this time, May 20, 1932, Clarke demanded of Hatch or Hartford-Empire the sum of $10,000. Hatch or Hartford-Empire shortly thereafter paid Clarke $8,000 in cash and Hartford-Empire- gave him a retainer contract to endure for a period of five years. In connection with the payment to Clarke, Hatch wrote Carter a letter dated May 28, 1932, and stated in part, “We are quite indebted to Mr. Clarke. While it is true that he has done nothing beyond what would be expected of any reputable man, nevertheless, without violating any confidence or doing anything of a questionable nature, he might easily have caused us a lot of trouble. This should not be forgotten * * These words are cloaked to the teeth. The payment of $8,000 in cash under the circumstances was peculiar indeed. The retainer agreement so suddenly effected between Hartford-Empire and Clarke seems to possess similar characteristics. I shall not set out in this dissenting opinion the other letters written by Hatch to officers of Hartford-Empire and Owens Illinois Glass Company at this time, but an examination of this correspondence will lead, I think, to the conclusion that Clarke was being taken care of lest he tell the truth. Under these circumstances, I think that the conclusion is inevitable that Hazel-Atlas could not possibly have brought competent proof of the facts to this court following the argument of the cause, or any time thereafter, until the United States Government brought out the truth from witnesses under oath at the time of the trial of the cause of United States against Hartford-Empire Company, Hazel-Atlas Glass Company, Owens Illinois Glass Company, and others, No. 4426, in the Northern District of Ohio in 1941. [See 46 F.Supp. 541] Knowing that something is the fact and possessing the ability to prove it are two very different things. Hazel-Atlas was in the position of “knowing” or vehemently suspecting the truth but was not in a position to be able to prove the facts to this court.
The majority opinion lays emphasis upon the fact that after the decision of this court on May 5, 1932, Hazel-Atlas failed to file a petition for rehearing. In the majority view the petition for rehearing should have included two items: first, the fraud embraced by the Clarke article; and, second, the fact that file wrapper history had been considered as evidence of the Peiler patent’s alleged dominant position in the art. The majority imply that the reason that a peti*776tion for rehearing was not filed was because of the settlement effected between the litigants on July 21, 1932. I do not doubt that this is the reason. But emphasis should be laid upon the fact that Hazel-Atlas by five separate stipulations approved by this court, kept the way open to file a petition for rehearing while an investigation of the Clarke article was being made. The majority treat this investigation as not having been made strenuously, but I think that the affidavits filed with us indicate the contrary. The contents of the Clarke article was the thing upon which this court placed its primary reliance in effecting a broad interpretation of the Peiler claims in issue. Had Hazel-Atlas been able to produce substantial evidence to prove the fraud, it is very probable that a petition for rehearing would have been filed. It should be noted, however, that McCarthy was unable to get any useful information from Clarke in the two interviews he had with him. The majority suggest that Hazel-Atlas did not exercise diligence because its representatives did not interview Hatch who might have stated the facts in respect to his authorship of the Clarke article if given the opportunity to do so at this time. This is a suggestion scarcely justified by the record for Hartford-Empire or Hatch paid Clarke $8,000 within a short time after McCarthy’s final interview with him. It was not necessary for Hazel-Atlas to have taken such a vain step in order to be able now to prove its diligence. If I am correct in my conclusions, Hazel-Atlas, lacking competent proof of the fraud, in its petition for rehearing would have had to have made serious charges against Hartford-Empire and three of its counsel basing its allegations on hearsay evidence which it had been unable to substantiate. This is a course upon which a prudent litigant should and would embark with great reluctance. It should be observed also that when Shawkee’s counsel in 1933 brought proof, substantially similar in nature to that which Hazel-Atlas could have offered in 1932 to this court, the court did not act upon it, presumably because it was not evidence of such a kind or of such weight as would justify action.
As to the failure of Hazel-Atlas to file a petition for rehearing on the legal ground that this court had treated a part of a file wrapper history as evidence of the dominant position of the Peiler patent in the art, I agree with the majority that Hazel-Atlas should have done so, but to say this is not to concede that the failure of Hazel-Atlas to call this court’s attention to its error of law is sufficient now to debar it from relief. We are dealing with a matter of great substance, with a fraud perpetrated upon this court. The failure to file a petition for rehearing in respect to a matter of law after an adverse decision should scarcely be considered as a matter of great substance under the circumstances. As to the settlement effected on July 21, 1932, it is a matter of speculation as to why ■ Hazel-Atlas made it. Hazel-Atlas probably made the best of a bad position and settled the litigation because it had lost its case, but that settlement scarcely included waiver of or acquiescence in a fraud.
As has already been indicated, the Shawkee case, No. 5203, came before this court after the disposition of the Hazel-Atlas case, No. 4414. It was ruled by the decision in the Hartford-Empire case.6 On October 30, 1933, before the decision, counsel for Shawkee having first written to counsel for Hartford-Empire, wrote to Judge Buffington and made the direct allegation that Hatch had written the Clarke article. He submitted with his letter eight papers, the titles of which are set out in the margin.7 *777On. November 17, 1933, counsel for Hartford-Empire wrote a letter to Judge Buffington and stated “ * * * the fact that the Clarke article was transmitted to the Glass Budget by Mr. Hatch of the Hartford-Empire Company was known both to the Hazel-Atlas Company and the Nivison-Weiskopf Company counsel prior to the trial of the latter case and at least during the trial of the Hazel-Atlas case.” It will be observed that counsel for Hartford-Empire made use of the word “transmitted” in respect to the Clarke article and that he did not admit that the Clarke article had been prepared for The Glass Budget by Hatch.
Following the letters between counsel for Hartford-Empire and Shawkee, this court had before it allegations which cast doubt upon the source of the Clarke article. The documents accompanying Shawkee’s counsel’s letter, which I have set out in note, 7, supra, do not prove that Clarke’s article was written by Hatch or that Clarke was not a disinterested person. The contents of the documents are consistent with the theory that Clarke himself had written the article and had done so as a matter of public interest. The statements contained in Shawkee’s counsel’s letter to Judge Buffington, as I have already stated, did make a direct charge of fraud. So far as this court was concerned, however, they were hearsay twice or thrice removed from the source and were made by an interested person acting on behalf of a litigant. Under the circumstances this court might not have been justified in embarking upon a full-scale investigation in determining the truth or falsity of the charges. It was not until the suit of United States v. Hartford-Empire and others, which I have mentioned, came to trial in the United States District Court for the Northern District of Ohio, Western Division, and the Government had completed its proof on October 22, 1941, that the facts relating to the Clarke article came out of the land of hearsay and Hazel-Atlas and Shawkee could prove what they had theretofore known or suspected. Both acted promptly immediately thereafter and filed their petitions in this court. I think that we should give the petitioners full opportunity to prove the nature of the fraud which was practiced upon this court and that that fraud caused this court to give a broad instead of a narrow construction to the claims of the Peiler patent in issue resulting in the decrees complained of. If such proof is made I think we have the power to set aside our decrees and our mandates and grant rehearings and that we should do so.
In saying this I am not unmindful of the statements made in the majority opinion that Owens Bottle Company, later Owens Illinois Bottle Company, and Hazel-Atlas made their peace with Hartford-Empire by cross-licensing settlements and thenceforth became interested in sustaining Hartford-Empire’s patents.8 But as was stated by this court in Cridlebaugh v. Rudolph, 133. F.2d 795, 800, citing Densmore v. Scofield, 102 U.S. 375, 378, 26 L.Ed. 214, there is a duty to protect the public from an unwarranted monopoly imposed by a patent. Quite aside from this, however, we have the duty to preserve the integrity of our appellate jurisdiction against fraud. As I see the facts, action upon that duty is clearly imposed upon us by the petitions at bar.
For these reasons I must respectfully dissent from the majority opinion. We should act on the petitions as the facts and the law require.
In a letter dated May 25, 1926, from Henry W. Carter, then the secretary of Owens Bottling Company, to one W. H. Boshart, Carter stated in part, “He [Hatch] has prepared * * * [the Clarke article] * * * with the idea of getting it printed under the name of some apparently unprejudiced authority, and then calling the attention of the Patent Office Examiner to the article as published, in the belief that the Examiner will thereby be influenced to a more favorable consideration of Hartford’s broad claims.”
I have set out immediately below a number of other quotations from Judge Buffington’s opinion which indipate his reliance upon the Olarke article.
“It is interesting to note that in that connection the trade, these labor organizations of practical workmen, recognized the fact that both the Owens and the Brooke devices were of the same character * * * A quotation from the Olarke article follows. 59 F.2d 399, at page 403.
“In the practical work of that part of the glass-blowing art here involved, we regard Owens and Brooke as the only devices which caused any concern to the Glass Blowers’ Union.” 59 F.2d at page 406.
“The periodic, separated, individualized mold forms or gobs discharged by this current-intercepted process and its contrast with the continuous feed stream of the earlier art are described by the union official just referred to in language we now repeat and whose keen accuracy will be better appreciated from what has been shown in the intervening part of this opinion.” 59 F.2d at page 407.
The District Court had held the claims in issue to be not infringed even if valid. This court held the claims to be valid and infringed.
The brief stated:
“2. It broke the Owens Domination. The article by Mr. William Glarke, former President of the Glass Workers’ Union (Rec. Y, 592, et seq.), gives an admirable outline of the effect of the Peiler plunger feeder on the Owens machine business. His chart reproduced opposite this page (Rec. V, 602), showing the production curves of the two types of machine, speaks for itself. The Owens reproduction line begins at zero in 1905 and goes to its high point of 12 million gross in 1919. Alongside of it the ‘gob feed’ (suspended charge feed) production curve begins at zero in 1917 and goes to 9 million gross in 1925. The Owens curve practically ceases to rise after 1919, that is, as soon as there was substantially competitive production by the suspended charge or ‘gob’ feeders.
“In fact, the Owens Company itself began the use of the reciprocating plunger feeder in 1920 (Rec. I, 289). It is now an important licensee of the plaintiffs plunger feeders (Rec. I, 237, 289). The Owens Company, the largest glass producer in the country, was forced ‘by the hard facts of actual commercial competition’ to recognize Peiler’s system as a radical advance (Rec. V, 682, 603).”
According to McCarthy’s report, Clarke stated: “I wrote that article in the interest of the general public, and I’ll stick to that.”
The fact that Judge Woolley, who dissented sharply from the majority opinion in the Hazel-Atlas case did not do so in the Shawkee case, 68 F.2d 726, indicates only that he followed the principle of stare decisis. Judge Woolley in his concurring opinion stated, 68 F.2d 727, “Regarding myself bound by that deci1 sion of the court [the decision in the Hazel-Atlas case], I concur in the findings of validity and infringement of the claims here in suit.”
1. Letter from Hartford-Empire Company, by R. F. Hatch, to National Glass Budget, dated July 9, 1926.
2. Letter from National Glass Budget, by A. W. Kimes, to R. F. Hatch, dated July 12, 1926.
3. Letter from Budget Publishing Company to William P. Clarke, dated July 13, 1926.
4. Letter from Hartford-Empire Company, by R. F. Hatch, to A. W. Kimes of National Glass Budget, dated July 14, 1926.
5. Certified copy from Patent Office in the matter of Peiler patent No. 1,655,-391, including certificate dated October 10, 1933, six typewritten pages, the first of which contains the Patent Office stamp *777“Piled Oct. 12, 1926.”, and front cover page of National Glass Budget for July 17, 1926.
6. Typed manuscript of Olarke article.
7. Copy of letter from Mr. Barnett to Hon. Thomas G. Haight, dated October 20, 1933.
8. Copy of letter to Hon. Thomas G. Haight to Mr. Barnett, dated October 24, 1933.
It should be noted in this connection that paragraph 9 of the petition filed on behalf of the United States as Amicus Curias makes the following allegations:
“9. Immediately following the decision of the Court in the Hazel-Atlas Suit (No. 4414) representatives of Hartford communicated with the President of Hazel, and it was suggested that an arrangement could be worked out whereby Hazel could have a license under the Peiler patent here involved with a share in Hartford’s royalties from other licensees, if Hazel would agree (1) not to file a petition for a rehearing in this Court and (2) not to file a petition for certiorari to the Supreme Court. Hazel accepted these conditions, paid a million dollars damages, and took a license under the Hartford patent.”
The facts in respect to the relations of Hartford-Empire to Hazel-Atlas and other companies are referred to rather fully in the opinion of Judge Kloeb in United States v. Hartford-Empire Co., D.C., 46 F.Supp. 541, 545, 547 et seq.