(dissenting).
I regret that my brothers have not felt impelled to attempt to fill the gaps in. proof and legal principle in their novel *283■decision underscored by the petition for rehearing. But there is no object in parading those difficulties again. The situation is otherwise, however, as to the petitioners’ quite proper request for clarification of the mandate. It is a not unusual practice, followed below, to refer proceedings for accounting to a master to hear and report. Unless the purport and extent of the accounting herein is to be made considerably clearer than it now is, these delaying and expensive proceedings are likely to prove abortive on eventual report to the district court and review by us.
Since my brothers have found Patent No. 2,090,318 valid for the few years of life remaining to it until 1954, it would be consistent to require payment for infringing copying during that period if it can be shown that defendants did copy the weak features of that patent beyond what was already public property. But the accounting for “the damages sustained and profits lost by Amco by reason ■of the fraudulent practices described in this opinion” remains wholly vague. Seemingly the fraudulent practices consisted in the defendants falsely representing themselves as agents of the plaintiff — with what reason or purpose is not ■clear, since they were then legally authorized themselves to produce and market the machines now in the public domain. To avoid obvious confusion I think it should be made clear (a) that defendants may freely copy the machines in the public domain and (b) that damages (beyond the patent infringement noted above) must be limited to commissions on such sales, if any, of defendants’ machines as were effected by the defendants through their false representation of agency. And, if the patent law has any meaning, the injunction should likewise be limited so as not to restrict defendants’ right and privilege to market machines no longer covered by patents and in the public domain. Our unanimous decision in Modern Aids, Inc. v. R. H. Macy & Co., 2 Cir., 264 F.2d 93, 94, still states the law of this circuit; and my brothers do not purport by their mandate to overrule or limit it.