(concurring):
I place my vote for the defendant on the express license granted it by this contract to practice the invention, and would defer handling the porcupine problem of an implied license. The agreement expressly authorizes the Government “to practice, and cause to be practiced for the Government throughout the world, each Subject Invention,” and then goes on to define “Subject Invention,” as “any invention, improvement or discovery (whether or not patentable) conceived or first actually reduced to practice * * in the performance of the experimental, developmental or research work called for under this contract * * As the court points out, this definition is not linked to a particular patent or patents but, rather, refers to “any invention, improvement or discovery (whether or not patentable)” — to ideas or conceptions, not to patents. The agreement is thus broader than licenses which are explicitly tied to specified patents (as distinguished from discoveries or inventions) and should therefore not be read as if “Subject Invention” meant only the By-rem patent or some other patent resulting from the contract work. For the reasons given by Judge Durfee, the articles bought by the defendant clearly embodied a “Subject Invention” under this contract — if that term is understood as relating to ideas, conceptions, or inventions, and not to the Byrem or any other patent — and in my view were expressly licensed for use by or for the United States as against any patent held by this plaintiff, no matter when or how acquired. I believe too, substantially for the reasons stated in Part II of Judge Durfee’s opinion, that the license provisions of the contract as a whole support, and do not negate, this interpretation of “Subject Invention” and of the express license granted the Government. Even if Mr. Byrem’s discovery could not validly be patented because anticipated by the Vinson patent, the company agreed that, so far as it was concerned, the United States could utilize that idea, wholly free of liability, because it was conceived and reduced to practice in the performance of the contract. The Byrem idea did not change its character or birthright or become different when the plaintiff acquired the Vinson patent which happened to embody the same conception; the idea, as such, remained free to the Government, as against plaintiff, whether it was incorporated in one patent (Byrem) or two patents (Byrem and Vinson) or ten patents.1
. I would invoke the theory of the implied license cases, such as United Printing Machinery Co. v. Cross Paper Feeder Co., 220 F. 322 (D.Mass.1915), only as one basis for reading “Subject Invention” in this contract to cover the idea, conception or invention incorporated into the Byrem patent, not the Byrem patent itself or alone. See, also, Mine Safety Appliances Co. v. United States, 364 F.2d 385, 392, 176 Ct.Cl. 777, 789-790 (1966).