(concurring in part and dissenting in part).
I concur in that part of the result reached by Judge KNOCH in his opinion which, affirms the judgment of the District Court. However, I am compelled to respectfully dissent to that portion of the opinion reversing for failure to include attorney fees and expenses incurred by counsel for Original in the defense of the patent infringement phase of the case as an element of treble damages in the antitrust action under the counterclaim.
The District Court made the award under authority of 35 U.S.C.A. § 285 by reason of the exceptional circumstances involved in the case concerning the validity of the patent and its use by Clapper and his licensees but specifically declined to include the award as an element of damages in the antitrust action under the counterclaim.
15 U.S.C.A. § 15 provides that one who shall be injured in his business or property by reason of anything forbidden in the antitrust laws shall recover threefold the damages sustained by him, plus the cost of suit including a reasonable attorney’s fee.
It is a well settled rule of construction that language used in a statute which has a settled and well known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body, Kepner v. United States, 1904, 195 U.S. 100, 124, 24 S.Ct. 797, 49 L.Ed. 114, or, as stated by the Supreme Court in another way, “where words are employed in an act which had at the time a well known meaning in the law, they are used in that sense unless the context requires the contrary.” Case v. Los Angeles Lumber Co., 1939, 308 U.S. 106, 115, 60 S.Ct. 1, 7, 84 L.Ed. 110.
When 15 U.S.C.A. § 15 was enacted by Congress, the word “damages” had acquired, through judicial interpretation, a well understood legislative meaning and it did not include attorney fees incurred in defending civil actions. Oelrichs v. Spain, 1872, 15 Wall. 211, 82 U.S. 211, 231, 21 L.Ed. 43; Flanders v. Tweed, 1872, 15 Wall. 450, 82 U.S. 450, 453, 21 L.Ed. 203; Tullock v. Mulvane, 1902, 184 U.S. 497, 511, 22 S.Ct. 372, 46 L.Ed. 657; Missouri, Kansas & Texas R. Co. v. Elliott, 1902, 184 U.S. 530, 539-540, 22 S.Ct. 446, 46 L.Ed. 673; Straus v. Victor Talking Mach. Co., 2 Cir., 1924, 297 F. 791, 797. There is nothing in the Act to the contrary, and, in my opinion, any legal basis for an attorney fee allowance in the successful defense of the patent infringement phase of this action could emanate from and find its source only in 35 U.S.C.A. § 285.
As I read the case of Kobe, Inc. v. Dempsey Pump Co., 10 Cir., 1952, 198 F.2d 416, I am impressed with the thought that the question of the right to include counsel fees incurred in the successful defense of a patent infringement suit as an element of damage in an antitrust action wás not squarely raised and decided by the Tenth Circuit, although the District Court so held. However, if the Tenth Circuit did so decide, I am constrained to disagree and am of the opinion that the Second Circuit was correct in its decision in Straus v. Victor Talking Mach. Co., 297 F. 791.
*635The District Court made an award of $25,000 for the services of counsel for Original in the antitrust action under its counterclaim pursuant to 15 U.S.C.A. § 15 and made an award of $28,244.31 for the services and expenses of counsel for Original in the defense of the patent infringement action under the complaint pursuant to 35 U.S.C.A. § 285. I am convinced the refusal of the District Court to include the latter award as an element of treble antitrust damages is not erroneous under the circumstances here.
I would affirm the judgment of the District Court in its entirety.