(dissenting).
The wealth of detail in the opinion, coupled with its sophisticated employment of such emotive words as “poach,” deceitful,” “fraudulent,” and “cunningly contrived pirating,” without orientation in specific findings, serves to mask the essentially revolutionary character of this decision. For what is happening is that a weak and simple patent, which has already expired, is being parlayed into a perpetual monopoly over an area broader than ever was visualized for the patented device itself. I realize that a dissenting judge should exercise appropriate restraint in stating conclusions which his brothers have rejected; even so I have to say that the broad and devastating result here achieved seems to me quite unique in its variance from the record and the parties’ claims thereto. The all but wholly obscured truth is that the well known concept of unfair competition is bding employed to fashion and shelter a monopoly where, as the record pretty thoroughly demonstrates, the ideas are public and their use is to be encouraged.
The patent here upheld — Voigt No. 2,-090,318, issued in 1937 — is very weak indeed. Voigt’s first application in 1934 contained thirteen claims dealing generally with the pressing machine and primarily with the retractable feature of the thin metal part used to position the collar point between the pressing dies.1 All of these claims were rejected by the examiner primarily on the basis of the Beattie and McAuley contributions to the *278prior art. Thereafter Voigt presented for the first time his ultimately successful claims relating to the double-pivot arrangement by which the pressure on the foot pedal is transmitted to the press. In fact the plaintiff regarded this patent so lightly that it did not even bother to list it on its machines while the McAuley-Beattie patents, under which it had a license, were in force. It took pains, however, to list these earlier patents most carefully — a significant demonstration as to where in its view (and mine, too) invention really lay. The double-pivot arrangement which the patent covers is hardly novel in itself. It is a simple and common adaptation of the lever — the oldest known mechanical device — with one pivot serving as a ^fulcrum, and the other merely as a flexible connection to the pressing die. The device is not dissimilar to the use of the lever in any of its multifold uses in everyday life. Moreover, precisely the same arrangement of pivot points was similarly utilized earlier by McAuley in his collar pressing machine. And the leaf spring, which is claimed in some uncertain manner as part of the patented device, is just that — a common leaf spring.
Conceding all this the majority finds novelty in the “essence of Voigt’s invention,” which “was in conceiving that the application of parallel, pressure to a substantial portion of the collar would produce the most effectively pressed and shaped collar.” The opinion further suggests that this discovery solved a problem which had vexed many other craftsmen in the art and that the commercial success of the plaintiff’s collar pressing machines is in some indefinite way attributable to it. But this will not do. For the patent utterly fails to disclose or even to claim this “novelty,” and hence cannot be upheld on the basis of it. 35 U.S.C. § 112; General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 369, 58 S.Ct. 899, 82 L.Ed. 1402. Moreover, if “parallel pressure” is indeed the essence of plaintiff’s invention, it is difficult to understand why the leaf spring is included in the patented device. As plaintiff itself stresses in its brief: “in the Amco patented construction the actual pressing pressure was effected only by the foot-pedal-operated yoke to which the upper shoes were pivotally connected; and (3) that the Amco leveling springs had nothing to do with applying pressing pressure.” (Emphasis in original.) 2
Most important, however, is the fact that the court’s elevation of “parallel pressure” is without any lower court findings and is not supported by any evidence at all. If by that term my brothers mean that the pressing surfaces of the upper and lower dies are parallel when the pressure is being applied, which is all that the record shows,3 there is no evidence that Voigt considered this fea*279ture the “essence” of his invention. Nowhere in his long and detailed testimony •at the trial was there any reference to a peculiar “parallel pressure”; the references were only to normal and well understood pressures. In the McAuley, the Beattie, and the second Kaplan machines, which all predate Voigt’s efforts, the pressing surfaces are roughly parallel to each other when pressing the collar. While the dies in Voigt’s device may be more precisely parallel than those in Beattie’s or Kaplan’s (but not McAuley’s), there is no hint in the record that this minor difference improves even slightly the pressing of the collar or the efficiency of the machine. Additionally, my brothers’ suggestion that Voigt’s development of “parallel pressure” solved a long existing and vexing industry problem is quite without support. There is no evidence of any problem which was solved by Voigt’s arrangement of two pivots and a spring. From the court’s own opinion it appears that Beattie realized his pressing dies were not precisely parallel throughout the pressing operation, but thought nothing of it, and that McAuley and McTague did utilize “parallel pressure” in their machines and did not consider it of any significance. What manner of well known problem could this have been?
Concerning the plaintiff’s commercial success on which my brothers so heavily rely, they declare: “We need not fix with precision the exact quantity of success attributable to the patentable as distinguished from the non-patentable features.” But commercial success — at best a makeweight relevant only in the closest of cases, Jungersen v. Ostby & Barton Co., 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235, affirming Jungersen v. Baden, 2 Cir., 166 F.2d 807 — up to this time has been wholly ignored where it is not clearly attributable to the patented features of the successful product. Welsh Mfg. Co. v. Sunware Products Co., 2 Cir., 236 F.2d 225, 227; Wilson Athletic Goods Mfg. Co. v. Kennedy Sporting Goods Mfg. Co., 2 Cir., 233 F.2d 280, 283-284. Here, moreover, plaintiff’s commercial success is quite clearly not due to the Voigt patent. It will be recalled that, due to the protection of the McAuley-Beattie patent umbrella, Amco’s only significant competitor was the Beattie machine. Of the two, the plaintiff’s machine had the greater speed, produced a more uniform product, and was safer to operate; and the highly knowledgeable purchasers of such machines quickly recognized its advantages.4 But all these advantages over the Beattie collar-former are attributable entirely to earlier invention and specifically to other features of the plaintiff’s machine than those covered by Voigt’s patent.5 It needs reiterating that on the plaintiff’s complex and precisely engi*280neered piece of machinery the patent in suit covered only two simple pivots and an irrelevant spring, and these parts performed only limited functions. The pivots transmitted to the collar press the pressure of the operator’s foot on the treadle; and the leaf spring facilitated the removal of the pressed collar from the pressing recess by holding the pointed end of the upper pressing die away from the surface of the collar when the upper die was raised, thus fully opening the press. There is no evidence of any significant difference in the Beattie machine’s performance of these simple functions. The pressing pressure seems to have been equally adequate to press the collars. And Beattie’s foot-pedal arrangement worked equally well in fully opening the press, so that the pressed collars could be removed with equal facility. In short, the commercial success of the plaintiff’s collar pressing machine was not caused by Voigt’s patented mechanism; and this “novel” mechanism is in fact as simple and common as it first seems. We have not been in the habit of treating such gadgets so favorably heretofore. For a recent example of our settled approach, see Savoy Leather Mfg. Corp. v. Standard Brief Case Co., 2 Cir., 261 F.2d 136.6
On the other branch of the ease, the court’s reversal of the decision below to hold that the defendants have engaged in unfair competition is even more novel and troublesome. “Fraudulent marketing,” as the court here defines it — or rather declines to define it — seems to amount to no more and no less than the defendants’ unquestionably privileged copying of plaintiff’s machine. Although the court declares that “Problems relating to the extension and development of [“the law of unfair competition”] into areas beyond ‘passing off’ are not within the purview of this case,” as the plaintiff itself concedes,7 this case is not by the wildest stretch of the imagination one of “passing off.” There is no evidence that any or all of defendants’ so-called fraudulent practices created the slightest likelihood that a purchaser would be misled into buying defendants' machine while intending to buy the plaintiff’s ; and I do not understand the court to hold clearly erroneous the trial court’s finding that plaintiff’s machine had not acquired a secondary meaning. Indeed, the court’s opinion seems to hold all these matters irrelevant. It states that “It is not necessary that the source [of plaintiff’s products] be the primary motivation for purchase,” and that it is not *281“disposed to debate in detail the probabilities of confusion”; and it not only finds that defendants sought “to create the impression that while in business for themselves they were authorized to make and sell Amco machines,” but also disapprovingly notes that “On the other hand, if some purchasers did not even realize that Schreiber & Goldberg were manufacturing Amco machines, Schreiber & Goldberg were not averse to benefiting from this misapprehension as well.”
While such vague and inconsistent charges must fall of their own weight, it is useful to note that none of the more specific charges of misconduct which the court levels against the defendants are supported by the record — except, of course, for the copying of the machine itself. As the majority concedes, defendants made no serious attempt to hire away plaintiff’s employees. Moreover, the evil inferences which the majority draws from the fact that defendants sold many machines with used Amco parts on them are conclusively negated by the clear evidence in the record that every one of these machines was sold as a rebuilt, not a new, machine. Indeed, on many occasions the purchaser himself supplied defendants with the secondhand Amco parts and requested that they be used on the machine.
The court also dwells at length on defendants’ so-called fraudulent advertising. But the majority’s own opinion, as well as the fact that the trial court did not think plaintiff’s charges here sufficiently serious to warrant specific findings, amply reveals the state of the record in support of this claim. The principal evidence consists of four advertisements of the collar pressing machine, all prominently featuring the name Schreiber & Goldberg, which included in a list of defendants’ sales representatives two concerns which were then handling only the plaintiff’s collar pressing machine, but selling many other products of the defendants. The contemporary correspondence in the record strongly supports the defendants’ here summarily dismissed claim of honest mistake in linking these distributors also with their collar presser. But even if this claim be rejected, I cannot see how my brothers can be so certain — without findings or mention by the trial judge and as far removed as we are from this equivocal proof- — that these advertisements, which did not mention plaintiff at all, constituted a representation that Schreiber & Goldberg were in some manner connected with the plaintiff. Secondly and finally there is evidence that a southern sales representative of the defendants, not the defendants themselves, once advertised a collar-forming machine in their own catalogue by featuring a picture which could have been either the plaintiff’s or the defendants’ machine and the name of the manufacturer was not stated. Apparently, however, this omission was never repeated. This paltry showing is the sum total of the evidence of defendants’ fraudulent advertising; and there is no other evidence of any kind which lends support to the finding of unfair competition.
Hence the “record of wilful and cunningly contrived pirating” reduces itself to nothing more than the copying of the Amco machine. The majority repeatedly condemns this copying. But as they also concede, it is one of the most well-settled principles in the uncertain law of unfair competition that, absent palming off, secondary meaning, and deceit, competitors are wholly privileged to copy another’s product. See Paramount Industries v. Solar Products Corp., 2 Cir., 186 F.2d 999, 1001-1002, and cases there cited. Indeed, even if defendants were guilty of fraudulent advertising, trademark infringement, or the like — which is patently not the case here — the protection of the public interest in free competition requires that only the fraudulent or illegal activity, and not defendants’ copying of the plaintiff’s machine, be enjoined. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 532, 44 S.Ct. 615, 68 L.Ed. 1161; Estate Stove Co. v. Gray & Dudley Co., 6 Cir., 41 F.2d 462, vacated on other grounds, 6 Cir., 50 F.2d 413. We have *282only recently unequivocally reaffirmed these principles in Modern Aids, Inc. v. R. H. Macy & Co., 2 Cir., 264 F.2d 93, 94, where the court stated Per Curiam: “The plaintiff had no patent, and except for one proviso the defendant was free to imitate its machine as closely as it chose, no matter how much the competition might lessen the plaintiff’s sales. That proviso was that, if the buying public had come to believe that every machine made after the plaintiff’s model was the plaintiff’s product, and had in any degree relied upon the source of the machine, rather than its performance, the plaintiff might have some relief. Even then, however, the relief would go no further than to require the defendant to make plain to buyers that the plaintiff was not the source of the machines sold by it.”
How far this simple and clear-cut statement of heretofore well settled law is now to be confused and confounded is brought into bold relief by the majority’s ambiguous mandate to the district court. I can only hope that that court can understand it more than do I and does not hold itself required to go to the extremes hinted at or implied. For if I read it aright, the direction appears to be that the defendants must pay over all profits derived from copying plaintiff’s machines, despite the law’s authorization and encouragement of this copying once plaintiff’s limited patent monopoly is over. Although my brothers concede that this copying was privileged, I see no narrower rational limit to the accounting they order. For there does not seem to be much else to which a claim for an accounting may attach. Surely no damage to plaintiff or even specific profits of the defendants can be attributed to the meager bits of claimed unfair advertising so played up in the opinion. Additionally, the proposed injunction — to restrain defendants from fraudulent marketing “by advertising and otherwise” — seems intended to buttress plaintiff’s monopoly further by not discriminating between-privileged and non-privileged acts. This result totally blots out all ending of plaintiff’s monopoly when its patent ended! and is quite upsetting to all patent law-It seems to me truly ironical that the-end result of the involved course of reasoning here pursued is that the defendants must account for marketing the-machines now in the public domain. Thus is the constitutional purpose of securing exclusive rights to inventors in their discoveries for limited times (U.S.Const. Art. 1, § 8) frustrated.
I confess I cannot perceive the reason or occasion for this decision. Apparently my brothers have taken offense at defendants’ competitive practices; thus they deem “intolerable” defendants’ efforts to break the plaintiff’s monopoly when its legal term had run. But this reaction constitutes a thorough repudiation of the American doctrine of free competition. In final analysis their decision must be a tribute to the lawyer’s craft, shown here in various aspects,8 in painting a spurious picture of low cunning and sly skulduggery so ineradicable that it does not fade even upon a demonstration of its lack of basis in the evidence and of the legally permissible character of the defendants’ acts. In my view the record in the first action involving patent No. 2,090,318 requires affirmance upon the plaintiff’s appeal and a reversal for dismissal on the defendants’ appeal.
I agree with the reversal and dismissal in the second action.
On Petition for Rehearing.
PER CURIAM.Petition for rehearing denied.
. Thus see the second paragraph of the patent:
“An important feature of my device is the provision of a reciprocating die plate, which is adapted to be located within the plies of the material which form the garment, and which serves to carry the garment into the dies in which pressure is applied to the garment and to be removed before the pressure is applied to the exterior of the garment. In the die plate, I have provided means for gently but firmly locating the garment in accurate *278position within the dies, this means being withdrawn from the dies before the pressure is applied to the garment. It is thus possible to secure a more rapid and accurate finish of the garments operated on than in the devices of the prior art.”
. Concerning this same spring the majority’s dismissal of the prior McTague device is also odd. McTague, my brothers say, did not anticipate Voigt because: “His link arrangement seems to have been intended solely to facilitate the insertion and removal of the collar. A parallel relation between the upper and lower dies is stressed only ‘at the limit of the separating movement,’ and not when the pressure is applied.” But this language could not more accurately describe the differences between the Voigt leaf spring and the defendants’ cross bar wliich, the court holds, infringes plaintiff’s patent. Patentees in this court have not always so easily slipped by the Seylla of anticipation and the Charybdis of noninfringement. See Zoomar, Inc. v. Paillard Products, 2 Cir., 258 F.2d 527, certiorari denied 358 U.S. 908, 79 S.Ct. 237, 3 L.Ed.2d 230.
. The court’s statement that “in the Amco machine the pressure is effected in a direction lengthwise of the center line of the collar” is incorrect and without support in the record. Plaintiff’s machine merely presses down on the collar in a direction perpendicular to its surface in the ordinary manner followed by McAu-ley, Beattie, and McTague in their machines. The only machines in evidence which applied pressure in the described direction were the two Kaplan devices— *279both prior to Voigt’s and both unsuccessful.
. The court’s own statement is:
“The advantages of the Voigt [Amco] double point collar-pressor over the Beat-tie single point machine include not only its simplicity and the greater speed made possible thereby, but the manufacture of a more uniform product, in the words of the patent, 'a more rapid and accurate finish.’ The double point die blades are complementally shaped to receive opposite pointed end portions of the turned collar so that both of the end portions may be pressed simultaneously without reversing them top from bottom as was necessary with the Beattie machine. This means that both sides of the collar receive a uniform sheen from the double point pressing, a result only haphazardly obtained from single point pressing. In addition, the Voigt [Amco] machine produces a smoother product and its pedal actuated internal die-blade makes it safer to use since it is not necessary for the operator’s fingers to come near the heated pressure area.”
. Note that the features specifically mentioned by the majority, note 4 supra, are all outside the Voigt patent — the foot pedal operation of the die blade and the die blade’s double pointed shape. The evidence adduced below strongly suggests that this latter feature, concededly in the public domain, was the most significant single factor in Amco’s commercial success. Not only did the double-point construction produce a more uniform sheen as the majority states, but it greatly increased the speed of the pressing operation; two collar points could be pressed at the same time on the double *280pointed blade (tbe Beattie machine pressed only one at a time), and tbe movements required to fit the collars on the blades were simpler with a double-pointed blade.
. Other examples could of course be multiplied; their character is sufficiently indicated by Jungersen v. Ostby & Barton Co., 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235, affirming Jungersen v. Baden, 2 Cir., 166 F.2d 807; Great Atlantic & Pac. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Bostitch, Inc. v. Precision Staple Corp., 2 Cir., 178 F.2d 332; Lenox v. Landers, 2 Cir., 188 F.2d 744; Kleinman v. Kobler, 2 Cir., 230 E.2d 913, certiorari denied 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51; Welsh Mfg. Co. v. Sunware Products Co., 2 Cir., 236 F.2d 225; Magnus Harmonica Corp. v. Lapin Products, 2 Cir., 236 F.2d 285; Zoomar, Inc. v. Paillard Products, Inc., 2 Cir., 258 F.2d 527, certiorari denied 358 U.S. 908, 79 S.Ct. 237, 3 L.Ed. 2d 230; Savoy Leather Mfg. Corp. v. Standard Brief Case Co., 2 Cir., 261 F.2d 136; Surgitube Products Corp. v. Scholl Mfg. Co., 2 Cir., 262 F.2d 824. The few old cases cited in the opinion to this point are not apposite.
. “In holding that defendants have not unfairly competed with plaintiff in tbe sale of their double point collar forming and shaping machines, the District Court undoubtedly was under the misapprehension that unfair competition could and should be enjoined only if it involved ‘passing off one product as that of another. In view of the record herein no other interpretation can be given for Judge Sugarman’s decision, but this palming off concept is much too limited and certainly does not apply in this case. The fact is that the defendants herein, with deliberate intent, copied the plaintiff’s machines so that they could in effect sell ‘Amco’ machines.” Plaintiff-Appellant’s Brief, pp. 58-59.
. Not least is the wile displayed in bringing two actions instead of one, resulting in wide elaboration of the simple issues and no less than fifteen printed booklets on appeal — a consequence which should have merited a penalty of costs and in fact seems to have led to the confusion of opposing and self-cancelling cost awards.