(dissenting in part).
I think the majority opinion ably demonstrates the correctness of the trial court’s decree in denying plaintiff additional royalties over those already paid, and in fastening responsibility for the contract royalties upon Pure Carbonic, Inc., but it appears to me that there is no liability for unpaid royalties on account of the dry ice furnished to the users of the Harrisburg liquefiers. The buying out of the American Dry Ice Corporation extended the market for gas made exclusively in Rudd liquefiers and so increased the royalties to be paid. Supplying dry ice to those customers who were already in established possession of Harrisburg liquefiers evidences no evasion of the licensee’s obligation to use its best efforts to promote the use of the apparatus of the Rudd inventions. It seems to me the licensee defendant should have the .right to adjudication whether or not Harrisburg infringes. Eclipse Bicycle Co. v. Farrow, 199 U.S. 581, 26 S.Ct. 150, 50 L.Ed. 317, where the licensee, obligated like defendant, originated devices similar to the licensed ones and manufactured and sold his own instead of his licensor’s, seems to me without application.
*226The Rudd invention is claimed to lie in the elements that close up the opening at the top of the cylinder where the dry ice is fed in, and as I compare the two liquefiers they seem to me to effect the closure on different principles. They both have stoppers to close the cylinder opening, but Rudd’s stopper is “held in container closing position by (gas) pressure exerted thereon from'the interior of the container.” The stopper is tapered so the stronger the gas pressure, the tighter it is wedged into closure. There is a gasket to prevent leakage. When not in use the stopper dangles inside the cylinder by a little chain passed through the opening and fastened on the outside wall. The stopper of the Harrisburg apparatus remain's outside the cylinder and is held in container closing position by the mechanical force of a screw clamp, also on the outside of the cylinder, and the gas pressure inside the cylinder has nothing to do with holding the stopper in closing position. Harrisburg’s also has a gasket to prevent leakage and the gasket may be affected by the gas pressure, but as I can see neither infringement of nor substantial similarity to Rudd, I would not assess any more royalty in respect to gas for the Harrisburg cylinders. Neither would I restore the .royalty money already paid.