(dissenting).
In United States v. General Electric Co., 272 U.S. 478, 489, 490, 47 S.Ct. 192, 196, 197, 71 L.Ed. 362, a unanimous Court announced a basic rule clearly applicable to the license agreement in the case at bar and later cases do not appear to have diluted or modified that rule. The Court there said: “The patentee may grant a license to' make, use, and vend articles under the specifications of his patent for any royalty, or upon any condition the performance of which [condition] is reasonably within the reward which the patentee by the grant of the patent is entitled to secure.” (Emphasis supplied.)
Also: “The patentee may make and grant a license to another to make and use the patented articles but withhold his right to sell them. * * * if he [the licensee] sells them he infringes the right of the patentee, and may be held for damages and enjoined.” (Emphasis supplied.) The Court goes even further in this case in declaring that if the patentee licenses the selling of the articles, he may limit the selling by limiting the method of sale. See also comments of a unanimous Court on powers of a patent licensor set forth in first complete paragraph, Ethyl Gasoline Corporation v. United States, 309 U.S. 436, on page 456, 60 S.Ct. 618 on page 625, 84 L.Ed. 852.
In the General Electric case the Court is speaking about, and passing upon, the dominant issue squarely confronting this court in the case at bar; that issue is “the performance” (by a licensee) of a “condition” prescribed in a license agreement. The inescapable logic of its pronouncement upon that aspect of patent law is that if the patentee himself may lawfully do the things sanctioned and authorized by our patent laws, he may (within the limits noted by the court, which “limits” were not transcended by the licensee in the instant case) lawfully grant a patent license which confers upon the licensee the lawful right to engage in precisely the same sort of operations. A license agreement, thus conditioned, does not expand or escape the orbit of the patent and/or the rights which inure to the patentee under his patent grant.
If the General Electric case is still “good law” why doubt the absolute right of Kam-merer to do everything the Baash Company was authorized to do under the instant agreement. In my view of the law of this case, these “authorizations” are, in legal contemplation, but a mere recitation of business operations which licensor Kam-merer, if operating alone, could lawfully “perform.” This view appears to find adequate support in the doctrine announced in the General Electric case, and sanction in the very nature of our contract and patent law. If a patent owner prefers to refrain entirely from exploiting his own patent, as for example by doing and performing the very acts and things which Kam-merer authorized Baash to do, but elects to confer upon a licensee the exclusive right to do and perform these acts and practices, I am unable to see how such practices by a licensee are thereby translated into legal villainies merely because they are permitted by the license agreement. Furthermore, if Kammerer had preferred to manufacture its own device and not make any patent licenses, and thereafter proceeded to do the very same things this agreement purports to authorize Baash to do, the royalty (or rental) payments collected by Kammerer would be “reasonably zvithin the reward” which the patent grant entitled Kammerer to secure.
A license limiting the use of a patented wringer and gear mechanism to certain types of washing machines is a valid exercise of the patent monopoly. Vulcan Mfg. Co. v. Maytag, 8 Cir., 73 F.2d 136, certio-rari dismissed, 294 U.S. 734, 55 S.Ct. 403, 79 L.Ed. 1263.
To avoid irrelevancies it is well at the outset to point out some of the basic conclusions upon which this court rests its opinion in this case. It says:
(1) “These covenants [paragraphs 11 and 12 of the license agreement] extend the monopoly of the patent by preventing competition with the patent of any other pipe cutter * * * used or sold by the licensee”. (Emphasis supplied.)
Also:
(2) “The licensor to procure such extension of the monopoly area of its patent *766* * * binds itself to extend, the area of the monopoly by a similar restrictive •agreement.” (Emphasis supplied.)
Also:
(3) “ * * * the patentee [Kammerer] is a corporaion having as its general manager an inventor of pipe cutters as well as two of its officers also such inventors. Its agreement to extend the patent monopoly by eliminating competition is aided by its agreement not to avail itself of the inventive genius of its employees in creating competitive devices which it can ‘manufacture, sell, rent, license, úse or in any way do business with.’ ”
The first two contentions advanced seem to me to beg the question baldly posed by this case. I prefer to suggest the answer in the general comments in this dissent. As to the third, I think that it finds a satisfactory answer in the very language of the two (cited) paragraphs of the license agreement. Paragraph 12 of the license agreement says in simple English that Kammerer agrees not to “manufacture, sell, rent, license, use or * * * do business” (with the covered device) “or with devices which will come or be in competition with the device or devices covered by the agreement.” The plain purpose of this language was to permit Baash to (thereafter) exclusively use the Kammerer device, i. e., to “do business” with it. Kam-merer simply agreed that it would not “do business” with its own device but preferred to yield the field of use to Baash. This is not a suppression of use. On the contrary, the agreement called for free use by Baash of the patented device in an important field of business activity.
Since this mindless creature of the law (a corporation) can hardly be charged with the offense of violating public policy by agreeing that it will not iwvent something, my associates turn to its employees and charge that Kammerer agreed not to avail itself of the inventive genius of its employees in creating competitive devices.
The language I have quoted above fully answers this unnatural ■ construction of the meaning of the plain provision of Paragraph 12. On its face the license agreement shows that all of the individuals connected with the Kammerer and Baash organizations were left free to invent anything and to freely sell their inventions to any one. The language of the agreement can not be tortured into a “discouragement in invention.” Our opinion is literally a holding that Kammerer was party to an agreement which “stifled invention” — but whose invention did it “stifle”? Certainly the patented device of Kammerer was not (thereby) being stifled —it was being put to the freest sort of use in eleven states. Our opinion accents the fact of what it calls “large operations” by Baash in exploiting the Kammerer patent.
Paragraph 11 applying to the licensee is equally void of language suggestive of such repression of “invention,” or of the “inventive instinct.” As indicated, all agents, officers and employees of both licensor and licensee were left entirely free (under the language of the agreement) to invent and give full play to their inventive instincts (and sell their invention or inventions).
Appellant makes certain specific contentions in his brief which aid materially to narrow the legal issue before us. He says: “Our contention is simply this: that, * * * the parties to a patent license agreement may not disable both of them from selling the patented invention. We believe that such a restraint, created by agreement, * * * is unlawful.” (Emphasis supplied.) This contention is both simple and blunt and permits 'of no misunderstanding of what we are forced to decide. If our opinion gives sanction to it, we part company with the doctrine of the General Electric case, which holds that the patent licensor may [272 U.S. 478, 47 S.Ct. 197] “withhold his right to sell.” Within the orbit of the patent, the patent owner may lawfully license such part of his rights as he chooses. Where in the law do we find sanction for the doctrine that the patent licensor loses this right to withhold some part of his rights, merely because he exercises a recognized legal right to grant a patent license ?
The law does not compel a patent owner to sell his patent. Aside from entering into contracts not to use an invention, *767which are a restraint of trade, the patent owner may refrain from doing anything at all with his patent — its validity is not affected by his non-use. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 28 S.Ct. 748, 52 L.Ed. 1122.
Another contention by appellant is that the use of the patented device (by a licensee) may not lawfully be restricted ("conditioned”) in the license. The General Electric case also answers that contention. Kammerer could lawfully make, use and vend its patented device, and exclude all others from such operations. Or it could part company (by a license) with a part of these exclusive rights and authorize a licensee to use the licensed device “upon any condition the performance of which is reasonably within the reward” which Kammerer is entitled to secure. That “reward” would most certainly be a lawful one when it came in the form of “rentals” received for the use of the patented device.1
It Í9 a significant and interesting fact that no case has been cited to us which is “on all fours” with the case at bar. So in order to plaster this license agreement with badges of illegality, said to clearly appear on its face, this court turns to and lifts quotations from cases dealing with totally different states of fact. Employing this process of analogy, it concludes that the instant agreement, per se, is legal proof that the parties thereto deliberately contracted and agreed to engage in the activities, and commit the various legal sins, found to be present, and constituting the dominant legal issue in, such cases as Mer-coid Corporation v. Mid-Continent Inv. Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363; National Lockwasher Co. v. George K. Garrett Co., 3 Cir., 137 F.2d 255; Pope Mfg. Co. v. Gor-mully, 144 U.S. 224, 12 S.Ct. 632, 36 L.Ed. 414; Transparent-Wrap Machine Corporation v. Stokes & Smith Co., 329 U.S. 637, 67 S.Ct. 610; Carbice Corporation v. American Patents Development Corporation, 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819; United *768States v. Masonite Corporation, 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461.
This oblique process undertakes to prove too much. The facts and the real legal issue in this case are poles apart from those in the cases just referred to, some of which are relied upon in the court’s opinion.2 It does not provide an answer in this case to lift broad statements of general principles from cases dealing directly and specifically with “tie-in” operations and bald attempts to achieve a limited monopoly of unpatented materials, and by analogy make them apply to the limited, peculiar and wholly different facts of this case. The law and the facts in those cases cannot and should not be made into a drag-net which sweeps this case into their various orbits.
I agree with the experienced trial judge in this case whose findings were that the challenged license provisions were lawful ones; that they were not designed and fashioned to accomplish unlawful purposes, and that under them, the parties did not accomplish, or attempt to accomplish, unlawful purposes. I agree with him that the agreement did not authorize or purport to authorize monopolistic practices which transcend the orbit and scope of the Kam-merer patent and the permissible range of “rights” which may lawfully be exercised by the parties to such a patent license.
Other practical matters deserve attention. Kammerer did not “withdraw” from “competition” in its “field.” The admitted fact is before us that Kammerer never had a field of operations and it never competed, or attempted to compete with any one. It was apparently a “paper corporation” expressly created for the one and only purpose of holding the Kammerer patent or patents here involved — it was not, and never was, a manufacturing and/or selling company.
Another aspect of this case presents itself. For all this court knows, there may have been dozens of (patented and un-patented) pipe cutting devices on the market all available to oil well operators all over the world. That this is assumed by the court appears from its conclusion that competitors of the Kammerer tool1 were “discouraged” because the Kammerer tool had supplanted these competitive tools in general use.
Such considerations suggest pertinent inquiries. How does this agreement, on its face, purge, or tend to purge, the market of all such competing devices (as in the Lockwasher case, supra) ? Where in the contract are the provisions, which in themselves, would actually create an unlawful monopoly in a business field? The court postulates the existence of an illegal “monopoly” by an inference arising solely from the face of the agreement — not from the evidence in the case. It has to assume the existence of some competition which was illegally restrained and/or suppressed by means of the Kammerer-Baash agreement. If actual or potential competition was not restrained or suppressed by the Kammerer-Baash agreement, why strike down the agreement? Actual legal restraint or suppression of competition, as a fact in this case, has not been established by evidence. For some reason which I think lacks pertinence, my associates stress the fact that the licensee was described as “a very large company.” In one year it did a service business of $212,700 in eleven states, or an average collection of approximately $19,272 from users of its tool in each of these eleven states. If this is thought to be persuasive of anything, the answer is that unless the facts in this case demonstrate that appellees were operating outside the four comers of our patent and antitrust laws in the securing and enjoyment of this service business, the size of'their business is without legal significance, as I shall endeavor to demonstrate in this dissent.
In its opinion the court comments on one finding of the trial court in the former injunction hearing in this action where the issue presented was that of patent infringement by appellant with an added claim by appellees for damages and an accounting. Speaking of this finding this court says: “The district court found * * * that the licensee had a monopoly of the field *769of pipe cutting in the United States, all other cutters being supplanted by the cutter of which it had the patent monopoly.”
To the foregoing comment this court adds: “Nothing could more discourage inventors or manufacturers of better competitive cutters than to take from them the patronage of the only person then using or cutting with the only device used in cutting broken pipe in all the oil fields * * (Emphasis supplied.)
There is nothing in the foregoing comments of the court which demonstrates in any manner that the sise of appellees’ pipe cutting operations was illegal per se, or was the result of illegal practices of appel-lees which restrained or suppressed competition. Therefore, I conclude that the court is of the view that appellees, as a matter of law became authors and operators of an illegal monopoly merely because their superior tool was so popular with users of such a device that they refused to use other cutters.
The court lays emphasis on the fact that inventors or manufacturers of (other) better competitive cutters became discouraged over this competitive situation since it served to take from them the patronage of persons using such devices. What is legally or morally wrong'in acquiring business in great volume if the process of acquisition is wholly within the law? Since when has popularity of a product become a crime? In this case, the large volume of business flowing to appellees may have “discouraged” the “inventors or manufacturers of better competitive cutters,” but this was the natural and inevitable result of offering a superior tool to users. How does the “discouragement” of these competitors, arising from their inability to retain trade going to a superior product, become a violation of law or involve any aspect of “public policy”?
There is a queer absence of realism in the court’s conclusion despite its reliance on the finding of the district court in the infringement action. In that action the court found:
“There is nothing in the prior art akin to the manner in which the elements are combined in the patent in suit. The outside cutters of the Reilly and Stone Patent No. 1,625,391 is a tool which has, with great commerical success over a long period of years, produced a better result and has achieved results not attained by any prior device know to the art.
“That since the introduction of the device of the patent in suit to the oil industry by plaintiff, Baash-Ross Tool Company, and its predecessor in interest, L. F. Baash Perforating Company, said device has displaced all prior devices in cutting and removing frozen or stuck drill pipe and tubing from wells.”
It is in the second of these findings that my associates find such gloomy significance, but all that can possibly be tortured or squeezed out of its language is the conclusion that (despite the “better competitive cutters”) the superior Kammerer tool so captured public approval that it supplanted and displaced what the using public must have regarded as inferior devices being offered. On the face of the whole record in this case, that is exactly what happened, and such an achievement does not violate either the letter or the spirit of our patent laws. These laws do not deprive men of the right freely to select the things they prefer to use. If we hold that this is the effect of these laws, the results on business in this circuit would be unpredictable. If national advertisers who spend millions of dollars in various forms of advertising to secure universal use of their products (protected by patents or trademarks) succeeded in securing such use by those lawful methods, we would, under the doctrine we announce, be forced to declare them law violators despite the wish and election of the buying public exclusively to use such products.
For the reason just stated, I am unwilling to translate such a legal and perfectly understandable capture of the pipe cutting business by a superior tool into an illegal operation which threatens “public intrest”. Is it the view of the court that it possesses the power to compel oil well operators to use or prefer an inferior device, or that it should try to force inferior and unwanted devices into a favorable competitive position with a superior product? Does it conclude *770that it must deprive appellees of a legal right to an accounting for damages due to infringement, merely because the infringing appellant or others unnamed could not successfully compete with the superior Kammerer tool? Yet that seems to be the objective of the decision in this case.
Our decision says that “the contention is entirely irrelevant that neither party was harmed by the agreement.” For reasons I indicate 'in this dissent I think that absence of 'harm to appellant from the existence of, and operations under, the license agreement, is a matter of supreme importance in this case. The court passes to an issue which I think is not in this case —■ the issue of “public interest” and makes the decision turn on that point. It reads into the term “public interest” a new and very astounding meaning. It concludes that the sweeping popularity of the Kammerer tool and its claimed universal and voluntary use by oil well men is a form of “monopoly” which, ipso facto, is against “public interest;” because these oil well men refused to use other devices, this free and very normal expression of their preference for a superior tool, outrages “public interest.” No case is cited which sustains this astounding theory and a sense of humor, if nothing else, should remind us of the truth of the old saw about a pathway being beaten to the door of the man who invents a better mouse trap.
The patented tool of appellees did not deprive either the public or appellant of anything they enjoyed prior to its invention. It gave something of value to the community by adding to the sum of. human knowledge. It embodied elements (recognized by courts passing on the validity of the patent) entirely unknown to the prior art. Small wonder that oil well operators immediately put it into general use since it provided a satisfactory solution of their vexing mechanical problems.
But this court sees in this universal popularity and wide use of a new and efficient tool, a sinister attack upon “public interest”. It refuses to recognize that this popularity and wide use was a perfectly logical (and legal) reward for inventing a superior and efficient device theretofore unknown in its field of use. The widespread and voluntary use by oil well operators seems to mean nothing to the court — it blinds itself to the obvious fact that the only kind of “public interest” involved in this case was that shown by men seeking a better pipe cutting tool. They found it in the Kammerer tool.
The evidence we face completely fails to demonstrate that (1) the practices of appellees contravened public interest, (2) stifled new competitive invention, (3) suppressed competitive forces which stimulate newer and better products. Since appellant demands that we deny to appellees the relief they seek in this court because their damage claim is tainted with illegality, it is in order to demonstrate by the record that appellees did not “stifle” or “discourage” any real inventive genius of appellant. Reference in the court’s opinion to others whose inventive genius may have been “sti-flled,” is too vague to justify comment.) Appellees did not harm him; he was the author of his own business misfortunes and we should not charge them to appellees by a process of indirection.
How appellant worked his own undoing is an interesting story and it is accurately reported in the opinion and findings of the trial court on the original infringement suit. One finding (now binding on this court) reads as follows: “Defendant, Ira J. McCullough, acquired his knowledge of outside cutters while in the employ of plaintiff, Baash-Ross Tool Company. Defendant left the employ of Baash-Ross Tool Company and commenced working on outside cutters and applied for United States Letters Patent thereon. Defendant knew the Reilly and Stone Patent in suit when he designed and made outside pipe cutters like the devices shown in Defendant’s Exhibit C., and Defendant’s Exhibit D. Both of these devices have all of the elements of the combination in the same cooperative relationship, and accomplish the same result in the same way as does the device of the patent in suit.”
In its Opinion in that case the trial court said:
“* * * The background of the defendant, Ira J. McCullough, shows the *771acquisition of knowledge in the art in the employ of one of the plaintiffs, the Baash-Ross Tool Company. The device manufactured is, in all respects, similar to the device of the plaintiffs.
j*s jj« jfc :Je * sfc
“* * * The defendant, Ira J. McCullough, having learned the art in the employ of one of the plaintiffs, who manufactured this device for many years, both under the patent in suit and the Kammerer patents, cannot escape the penalties of infringement by manufacturing, according to the teachings of the patent, a device which, while containing all the elements of the claims in suit, operates in a manner which, although not used by the plaintiffs in their device, is claimed and taught by the patent.”
So it plainly appears that appellant did not exercise his “inventive genius” — he did not stoutly resist wicked efforts of ap-pellees to crush some “competitive, force” within him which might have inspired and stimulated him to invent a tool far superior to the Kammerer tool. On the contrary he busied himself in the work of preserving and promoting his own special brand of “free enterprise” by calmly appropriating another man’s original and patented idea.
No wonder the court hastens to assure us that the fact that “neither party was harmed” by the Kammerer-Baash license agreement is “irrelevant.” On this record it faced an impossible task in trying to show that appellees had harmed appellant. The shoe was on the other foot. I suggest that “public interest” would have been served in an admirable manner had appellant found in the Kammerer tool a great inspiration to invent a much superior device and then succeeded in doing it. In that event he would surely have placed himself firmly in the favorable business position occupied by appellees. I resist the temptation to speculate on what our attitude might be if that sort of a reversed situation had developed and appellant’s present contentions were then presented to us by appellees.
At this point I emphasize the fact that the cases cited in the court’s opinion do not justify the conclusion it reaches. One of these is Pope v. Gormully, supra, which was characterized by the court as “rare and unique,” and difficult to assign to a proper place among legal obligations. Obligations there imposed upon a licensee appear to have been projected beyond the term of the license. The court narrowed the justiciable issue by this language [144 U.S. 224, 12 S. Ct. 636]: “ * * * the real question is whether the defendant [licensee] can estop himself from disputing patents which may be wholly void, or to which the plaintiff [licensor] may have no shadow of title.” In this case the court was considering an abuse of the licensee — a situation not factually or legally comparable to, or even claimed to exist, in the case at bar. While some language is dredged up from the Pope case to justify this court’s opinion, the Court there was dealing with a license agreement (declared to be) so oppressive to the licensee that a court of equity was justified in refusing relief to the licensor plaintiff. The Court indicated that the agreement would probably foreclose the licensee from ability to earn an honest living in his chosen calling. Much of the Court’s comment deals with fundamental rights of a licensee which, as a matter of public policy, may not lawfully be bartered away; The case did nor decide the issue we face and its force as authority is not apparent.
The logic of the Blount case, 1909, C.C., 166 F. 555 does not weaken appellees’ case. There two manufacturers, each with a patented invention, agreed not to compete — a factual situation absent in the case at bar. It lacks pertinence in a case such as we face. The issues we confront are within the orbit of the General Electric case. See Daniels v. Brown Shoe Co., 77 F.2d 899 and Bement & Sons v. National Harrow Co., 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058.
The distinction between the facts in this case and those in the Lockwasher case, supra, is very marked. That case involved a contractual combination embracing at least six manufacturing concerns all coldly bent upon the creation of a stifling monopoly in an entire field which (under the facts disclosed at trial) was deliberately fashioned and designed to purge the entire market of competition. No such design, purpose, ability or attempt to monopolize *772and to “purge” the market of all or any competitors was shown in this case. Here the findings of the trial court indicate the exact contrary to be true. In fact, the findings and conclusions (supported by the evidence) repel the charge and the conclusion that the business operations of ap-pellees were monopolistic in character, or were designed to, or achieved results of that nature.
It is easy to marshal an imposing array of cases which proclaim the mournful fact that the “monopoly” of the patent grant was abused by business practices shown in those cases. The cases cited by the instant opinion generally fall into this category. I think that they lend no weight to the conclusion we reach since they deal with factual situations not even distantly related to the facts in this case. In the instant case, the facts are shunted into the de minimis class. I think that it will be found that in practically all of these cases, the courts immediately came to grips with the facts, and the logic of this sort of approach is apparent. One excellent reason lies in the fact that no rule has yet been devised by the wit of courts which could be applied to all factual situations. Obviously this calls for a careful delineation of the facts against which even a well recognized rule should be applied.
In the instant case appellees first vigorously denied that their agreement reveals an intent to proj ect their business practices beyond the lawful orbit of the patent grant, a contention I approve and to which the trial court agreed after a full hearing on the merits. The trial court also inquired into the practices of appellees under their agreement and determined that these did not circumvent anti-trust and/or patent laws.
This courts says that the language in two or more provisions of the Kammerer-Baash license agreement is sufficient in itself to void the agreement as “contrary to public policy.” Our opinion portrays “public policy” as a legal principle which necessarily calls for condemnation of the license agreement despite the absence of proof therein that the business practices of ap-pellees harmed the business practices of appellant. This sort of condemnation, without any showing of actual injury, resulting from illegal practices, is a novel application of a wholesome principle of law designed by society to prevent the doing of legal injury to others.
Since reference has been made to the findings of the trial court, I call attention to the fact that our court rules require that specifications of error in findings and conclusions “shall state” wherein they are alleged to be erroneous. Appellant presents no such specifications o-f error nor does he make reference to the findings in the statement of points he relies upon. All we have from appellant is the (here summarized) assertion that the district court erred: (1) in holding that license agreement does not contain restrictive covenants which are against public policy, in restraint of trade and illegal; (2) in holding that plaintiffs are not barred from using a court of equity to enforce the patent grant; (3) in holding that plaintiffs are entitled to an accounting and a recovery of profits and damages-; and (4) in denying all plaintiff’s motions and entering the Order of June 5, 1945 appealed from herein. On the record before us McCullough does not attack the findings as being erroneous or contrary to or not fully supported by the record.
The trial court Correctly disposed of the issues presented on the accounting and its judgment should be affirmed.
Another contention further revealing the real basis of appellant’s case is as follows: “Where the patent owner, as here, attaches to its license agreement any terms or conditions whereby the licensee is obliged not to do something which it [licensee] would have a free right to do, but for the license, it is evident that the restraint on the licensee is outside the patent monopoly and results from the agreement. The fact [here relying on the Mercoid case] that the patentee has the power to refuse a license does not enable him [patentee] to enlarge the monopoly of the patent by the expedient of attaching conditions to its use.”
The foregoing argument of appellant cannot be sustained (on the theory that the restraint on Baash “enlarges” the monopoly of the Kammerer patent) unless this court completely ignores the holding in the General Electric case which is absolutely to the contrary.
McCullough insists that the license agreement in this case is objectionable, when measured by the Mercoid case, even though the royalty in that case was based on an unpatented part.
One of the major complaints of appellant in this case is that the license agreement is illegal because Kammerer and Baash never sold the patented tool. Oases condemning price restrictions and/or resale prices are not applicable here.
The system of renting the use of “fishing tools” when they are needed has long been the recognized method by which oil well drilling operators have economically availed themselves of the use of sundry “fishing tools” — a practice which made it unnecessary for these drillers to purchase a large stock of various sized tools which would probably be very expensive. Appellees maintained a service operation and a corps of expert operators who could take care of emergency requirements of the oil industry at any time, day or night.
Scott Paper Co. v. Marcalus Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47, is cited as supporting the views expressed in the prevailing opinion. Its bearing upon the issue we face is not apparent,