(dissenting). I am constrained to dissent from the reversing decree in this case. The controlling question here is that of infringement. This appears from the elaborate discussion of that question in the opinion expressing the views of the majority. It is true that at the close of the opinion the want of novelty is advanced as good ground of defense; the suggestion being founded upon the decision in Perry v. Rubber Co. (C. C.) 86 Fed. 633, affirmed in 43 C. C. A. 248, 103 Fed. 314. But in that case the suit was for the infringement of the Perry patent, which is junior to the White patent, upon which the present suit wras founded. The White patent was part of the prior art, and clearly, as it seems to me, the remarks of the learned judges of the First circuit in the cited case, quoted and relied on by the majority of this court, have no legitimate bearing upon the case now before us. Upon the question of infringement, the judgment of the majority rests upon the view that there can be no violation of either of the claims of the White patent, except by the use of a nonelastic core extending throughout the entire length of the outer tubular casing. I am not able to read the claims of the patent in such a restricted and destructive sense. The claims are for a packing material composed of specified elements in combination, and, in my judgment, a completed gasket which at any part contains to a beneficial extent the patented combination constitutes use of the invention and infringes the patent. Undoubtedly the defendant uses the article described and claimed in White’s patent. It is no answer to say that the defendant’s use of the patented article is small. The defendant uses the patented article to the extent it desires. The learned judge of the circuit court well said:
“At the joint, which is the most vulnerable place in the packing, and at the point where there are inequalities in the surface, which is the most *838difficult place to seal, the respondent uses the identical elements of White’s combination operating in the same way. If it secure the same result as White by using his device where its use is essential and substantial and discards it where it is non-essential and immaterial, we must still hold, if the patent serves to substantially protect, that the respondent has taken the substance of White’s device. We, therefore, hold the respondent an infringer, for one who appropriates an invention so as to gain imperfectly or to a limited extent the advantages which may be derived therefrom, does not thereby free himself from infringement. Sewall v. Jones, 91 U. S. 171, 23 L. Ed. 275, and cases cited. To the extent the respondent uses White’s combination, to such an extent it acquires the full measure of benefit from it. Celluloid Mfg. Co. v. Crolithion Collar & Cuff Co. (C. C.) 23 Fed. 397, is akin to this case. By using some of the complainant’s packing respondent uses enough to make it an infringer.”
I am in accord with the above views of the circuit court, and would affirm its decree.