(concurring in part and dissenting in part).
Of the opinion that the judgment should be affirmed as written, I dissent from its modification so as to provide that appellant “has intervening rights and is entitled to the continued use of the accused machine”.
Because, aside from this, I find myself in complete agreement with the excellent opinion of the majority, I think it desirable to precisely state the point of difference between us and to briefly give my reasons therefor.
I agree with the view of the majority that “the question of intervening rights should and must be resolved under Section 252 of the 1952 Patent Act”. I agree, too, with its view that the district judge erred in reading the word “or” in the provision “to continue the use of the specific thing so made, purchased, or used”, as “and”, as I agree with its view that “Claim 19 of the original patent does not constitute a barrier to defendant’s claim of intervening rights.”
I nevertheless disagree with the ultimate conclusion that “Section 252 gives appellant an absolute right to continue using [the accused machine] without regard to the extent of its use prior to reissue”. This is so because it is my view that the statute, in line with deci-sional law under Sec. 64 of the earlier statute remits the matter to the discretion of the court “before which such matter is in question”, for determination by it upon equitable considerations, and the undisputed evidence, particularly the testimony of Anderson, defendant’s president, establishes conclusively that there is no basis here for the claim of equitable rights.