(dissenting).
I cannot agree that the fact that these machines as restored wound up operating on five ounce cans instead of one pound cans has, apart from other considerations, resulted in a destruction of their original identity and the creation of new machines. The question to me should be whether the alterations necessary in order to accomplish this result were of such a character as to amount to reconstruction under recognized tests such as those discussed in Aro Manufacturing Company v. Convertible Top Replacement Company, 1961, 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 592.
The district court has not found on these matters. Its consideration was limited to the question, as stated in its opinion, “[WJhether it is infringement for the possessor of a patented combination, designed to pack one pound cans only, to so change essential parts that the machine will pack five ounce cans only.”
Here it would appear that the replacements did not newly create a patented combination, but that they simply bore on the useful capacity of the old combination on which royalty had already been paid — the very combination which by sale had been released from monopoly.
It is apparent from the opinion of the district court that it was concerned with the patentee’s right to refrain from manufacture of • machines to handle other *75sizes or for other purposes. If the patentee has commercial concern with the sort of use to which the machine (or combination) is to be put, he can and should protect himself by the commercial arrangement by which the patent is released. If released by sale, the combination sold should, in my view, be regarded as released in all its full usefulness until that usefulness is spent.
For these reasons, I would reverse.