(dissenting in part).
*485Appellees, 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 appellant2 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 patents: Luther, No. 111,221, January 24, 1871; Kellogg, No. 657,777, September 11, 1900; Kammerer, No. 1,277,600, September 3, 1918; Hill, No. 1,338,773, May 4, 1920.3
Each of the four tools last above mentioned (Luther’s, Kellogg’s, Kammerer’s and Hill’s) comprised, inter alia, cutter blades and means for actuating such blades —making them engage and cut the pipe. Luther’s and Kellogg’s cutter blades were pivoted. Kammerer’s and Hill’s were not pivoted, but were slidable. Kellogg’s and Hill’s actuating means included a coil spring. Luther’s and Kammerer’s did not. To restrain the action of the spring until it was desired to cut the pipe, Kellogg and Hill provided a shear pin.4 No shear pin was needed or provided by Luther or Kammerer.
Reilly and Stone’s tool is a copy of Kammerer’s, except that Reilly and Stone (1) substitute pivoted blades for slidable blades, thus following Luther and Kellogg instead of Kammerer and Hill, and (2) include a spring and shear pin, thus following Kellogg and Hill instead of Luther and Kammerer. If, as their specification states, Reilly and Stone’s tool is an improvement over Kammerer’s, such improvement required nothing beyond the skill of the art and obviously did not constitute invention. Mantle Lamp Co. v. Aluminum Products Co., 301 U.S. 544, 547, 57 S.Ct. 837, 81 L.Ed. 1277; Textile Machine Works v. Louis Hirsch Textile Machines, 302 U.S. 490, 497, 58 S.Ct. 291, 82 L.Ed. 382; Toledo Pressed Steel Co. v. Standard Parts, 307 U.S. 350, 356, 59 S.Ct. 897, 83 L.Ed. 1334; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 89, 62 S.Ct. 37, 86 L.Ed. 58; Kugelman v. Sketchley, 9 Cir., 133 F.2d 426, 427; Grayson Heat Control v. Los Angeles Gas Appliance Co., 9 Cir., 134 F.2d 478, 481. Therefore the claims in suit are invalid.
Lack of invention being clearly shown, no significance attaches to the fact, if it be a fact, that commercial success followed the claimed improvement. Toledo Pressed Steel Co. v. Standard Parts, supra; Pacific Marine Supply Co. v. A. S. Boyle Co., 9 Cir., 103 F.2d 288, 292; Bramlett v. Na*486tional Unit Corp., 9 Cir., 104 F.2d 17, 19; Kugelman v. Sketchley, supra; Grayson Heat Control v. Los Angeles Gas Appliance Co., supra.
The judgments should he affirmed as to Otis J. McCullough and Ray Andrade and reversed as to appellant.
The complaints charged infringement of three patents, No. 1,277,600, No. 1,-625,391 and No. 1,625,414. At the trial, however, patent No. 1,277,600, patent No. 1,625,414 and claims 10, 11, 13, 19 and 20 of patent No. 1,625,391 were withdrawn from suit. There remained in suit claims 1-9, 12, 14-18 and 21 of patent No. 1,625,391.
The court filed an opinion expressing the view that appellees were “entitled to a permanent injunction against the defendants” (Otis J. McCullough, Ray And-rade and appellant). Kammerer Corporation v. McCullough, D.C., 39 P.Supp. 213, 214. However, instead of enjoining Otis J. McCullough and Ray Andrade, the judgments entered by the court dismissed the suits as to them.
Others were described in the following patents: Lawrence, No. 105,156, July 5, 1870 (reissue No. 5,092, October 8, 1872); Lawrence, No. 126,403, May 7, 1872; Palm, No. 543,265, July 23, 1895; Eastwood, No. 682,180, September 10, 1901; Cushing, No. 935,467, September 28, 1909; Nelson, No. 1,138,395, May 4, 1915; Driscoll, No. 1,258,015, January 8, 1918; Carmichael, No. 1,324,303, December 9, 1919; Beatty, No. 1,328,940, January 27, 1920; Lonsdale, No. 1,403,-612, January 17, 1922; Hinderliter, No. 1,433,722, October 31, 1922; Jones, No. 1,454,819, May 8, 1923; Plante, No. 1,-458,118, June 5, 1923.
Kellogg called his shear pin a fastening-wire. Hill called his a shearing pin.