concurring in result.
I agree with A.B. Dick that the trial court misconstrued Judge Rice’s ruling in the Mead case and that the grant of summary judgment based on giving collateral estoppel effect to that erroneous interpretation was improper. Hence, I join in the majority’s decision to reverse. On this ground alone the appeal is resolved. I do not agree that we must also decide “whether the Mead court’s holding on the Sweet patent has collateral estoppel effect in this case.” Such an analysis would be necessary only if we agreed that Judge Rice had made the broad ruling urged by Burroughs.
I
Judge Shadur translated Judge Rice’s holding that “the Sweet patent is limited in scope to oscillographic recording ” to mean that only devices which were “oscillographic recorders ” could infringe. That was error. Judge Rice made a number of specific findings which shows that he did not intend to rule on what type of device was an infringement.
Finding of fact No. 124, quoted by the majority, stated unequivocally that it is *705“deflection transverse of the time-axis relative movement between the record member and nozzle” that “define[s] ... oscillography.” Finding of fact No. 143 states: “Sweet’s patent claims invention of means for practicing one of the number of devices for the purpose of oscillographic recording.” 521 F.Supp. at 182, 213 USPQ at 342. When the expression “oscillographic recording” as used by Judge Rice is read in the context of his entire opinion, I understand that he used the term as a summary description of a method of recording a wave form by “deflection of ink droplets transversely of the deflection of relative movement between the nozzle and the record member.” of
In view of the trial court’s error in construing “oscillographic recording” to mean specific devices rather than a particular mode of operation, the grant of summary judgment is clearly unsupportable.*
II
Whether collateral estoppel effect is to be given to the limited holding as to the mode of operation of appellee’s invention is not an issue between the parties. Indeed, A.B. Dick concedes that so long as Judge Rice’s opinion stands, its claims are so limited, and the Burroughs’ device admittedly involves deflection transverse of the relative movement between the nozzle and the record member. Whether A.B. Dick can assert no broader scope to their claims because of general principles of collateral estoppel is irrelevant.
III
Finally, as with collateral estoppel, the discussion of adding elements to avoid infringement is a non-issue. The trial court concluded only that the Burroughs device was not an oscillographic recorder. The error below resides in the court’s failing to consider that the accused device may operate by oscillographic recording, not in some confusion over what is accused of infringement. To answer the contention not raised, the majority erects a hypothesis and then strikes it down with an assumption that the result is patently correct. I do not know that the conclusion is correct and am content to await the day when the issue is raised.
I also note that there is a problem, not addressed by the trial court, in giving collateral estoppel effect against independent claims 4, 10, 11,13, 24, 25, and 30 which were not before the Mead court.