Full opinion text
WATKINS, District Judge. GENERAL STATEMENT 1. The Parties and Jurisdictional Aspects This is an action for patent infringement brought by plaintiff Blohm & Voss AG, a German company having its principal place of business and shipyard at Hamburg-Steinwerder, West Germany. Plaintiff designs and constructs ships and equipment for ships at its yard. The defendant, Prudential-Grace Lines, Inc. (Grace) is a corporation of Delaware having its principal place of business in New York, N. Y. It operates a shipping fleet, including six ships known as the Santa Lucia class which periodically load and discharge cargo at the Port of Baltimore. Plaintiff asserts that the heavy lift cargo gear installed on such ships infringes its patent in suit. Sun Shipbuilding & Dry Dock Company of Chester, Pennsylvania (Sun), constructed the Santa Lucia class of ships and the heavy lift cargo gear installed on them. Sun is obligated to defend, indemnify, and hold Grace harmless on account of any charge of infringement by such cargo gear, including the expenses of litigation, and is paying for the services of defendant’s counsel. The action for infringement is based upon 35 U.S.C. sections 271 and 281. The jurisdiction of this Court is grounded on 28 U.S.C. section 1338(a). Venue is grounded on 28 U.S.C. section 1400(b). Jurisdiction in respect of defendant’s counterclaim for a declaration of invalidity of the patent in suit is grounded on 28 U.S.C. sections 2201 and 2202 as well as 28 U.S.C. section 1338(a). 2. The Patent in Suit The patent in suit is U. S. Letters Patent No. 3,236,390 (’390) granted February 22, 1966, based upon patent application Serial No. 403,441 filed October 2. 1964 by H. F. J. Sprengel (Sprengel). Such patent application was a continuation-in-part of Sprengel’s then co-pending U. S. patent application Serial No. 361,422 filed April 21, 1964, now abandoned. The patent relates to ship’s loading apparatus broadly referred to as cargo gear. The patent discloses gear comprising a long boom, pivotally mounted on the deck on the centerline of the ship, having boom head fitting(s) carried by the upper (or outer) end of the boom. The upper cargo blocks are carried by such fittings. The gear may be constructed in two variations—one using a single upper cargo block mounted on the fitting to swing in pendulum movement along one side of the boom, and a double pendulum variation having two upper cargo blocks located on opposite sides of the boom, pendulumly mounted on the fittings. The patent is entitled to the April 17, 1964 filing date of German patent application St 21,981 in respect of the double pendulum type of the heavy lift cargo gear. The patent is entitled to the October 12, 1963 filing date of German application St 21,185 in respect of the single pendulum type of gear. The above mentioned United States patent applications were assigned, and the patent was originally granted, to H. C. Stulcken Sohn, also a company of Germany. In early 1966, plaintiff acquired the business and assets of Stuleken, including the then-pending application S.N. 403,441, upon which the patent in suit was about to be granted. Plaintiffs ownership of the patent has been recorded in the Patent Office. There is no controversy regarding ownership of the patent. 3. The Contentions of the Parties A. By Plaintiff, Regarding Infringement Plaintiff contends that claims 1-3, 14, 15 and 18 of the patent are infringed by the heavy lift cargo gear installed and used on the Santa Lucia class of ships. To the extent that defendant contends that there is no literal infringement of such claims by its cargo gear, plaintiff contends that the structure of such gear achieves the same result in the same way by the same means as the patented invention, and that any structural differences are obvious mechanical equivalents. Plaintiff contends that the invention has been a commercial success based upon its technological merits. The gear is capable of handling exceptionally heavy loads, up to 250-300 tons. Two hatches (fore and aft) can be served by the gear alternately without dis-mantling or re-rigging the gear. By virtue of mounting the upper cargo block(s) to swing in pendulum fashion on one side of the upper end of the boom, in the case of the single pendulum, or on opposite sides in the case of the double pendulum, the movement of the boom from one hatch to another is simplified, thereby saving time and permitting the use of less skilled workmen. In the double pendulum construction, as is here in suit, two upper cargo blocks are mounted on fitti,ngs on opposite sides of the boom head. This additionally and optionally permits using only one upper cargo block to handle light loads (not exceeding 50% of normal capacity) at twice the normal lifting speed, although this is not disclosed in the specification nor claimed in the patent in suit. Plaintiff contends that Sun is a real party in interest. B. By Defendant, Regarding Invalidity Defendant contends that the claims of patent ’390 in suit are invalid on the following grounds: 1. The differences between the claimed subject matter and the prior art are such that the claimed subject matter as a whole would have been obvious at the time the alleged inventions were made to a person having ordinary skill in the art to which said subject matter pertains (35 U.S.C. section 103). 2. The claims in suit are invalid because the specification of the patent in suit does not contain a written description of the alleged invention, and of the manner of making and using it in the full, clear, concise and exact terms required by 35 U.S.C. section 112. 3. The claims in suit are invalid because they fail to particularly point out and distinctly claim the subject matter of the alleged invention (35 U.S.C. section 112); the claims call for structures incapable of performing their purported functions and call for inoperative structures. C. By Defendant, Regarding Non-infringement. Defendant contends that none of the patent claims in suit is infringed because each of said claims contains claimed structure which is not found in any of defendant’s devices which are alleged to infringe. D. By Defendant, Regarding The Estoppel Defense Defendant contends that plaintiff knew that the claims in suit were too limited to cover the rigging configuration of defendant’s allegedly infringing devices long prior to the allowance of the patent in suit, but failed to seek claims broad enough to read on said rigging configuration and only sought limited claims to implement its efforts to obtain the patent in suit and, therefore, is not entitled to any equitable assistance in construing the claims in suit to read on the allegedly infringing devices and is es-topped from asserting said claims against said devices. E. By Defendant, Regarding Patent Misuse Defendant contends that plaintiff has misused its United States patent in suit by means of the license agreement with its exclusive United States licensee, MacGregor-Comarain Co., Inc. (“MacGregor”), both viewed alone, and as a part of a worldwide scheme by plaintiff to divide and allocate markets and suppress competition through similar licensing arrangements, all in violation of the anti-trust laws of the United States, in that plaintiff has: 1. Used the patent in suit to require MacGregor to pay royalties on various STULCKEN MASTS which are unpatentable in this country. 2. Used the patent in suit to tie in procurement of services and goods from plaintiff outside the scope of the patent monopoly. 3. Used the patent in suit to impose improper restrictions on the activity of MacGregor outside the scope of patent monopoly. 4. Used the patent in suit to improperly control unpatented products. 5. Imposed territorial and customer restrictions on MacGregor pursuant to a scheme, furthered by the MacGregor license and its other licenses worldwide, to divide and allocate markets for all two-hatch cargo boom equipment, patented and unpatented, and to monopolize the world market for such gear. 6. Bound MacGregor not to question the validity of plaintiff’s patents. 4. Damages and Relief Sought Plaintiff sought an adjudication that the patent is infringed, and an injunction permanently enjoining defendant from further infringement, by either the use of the heavy, lift cargo booms installed on the Santa Lucia class of ships and/or future installations, and damages for past infringement. The amount of damages is not liquidated. Plaintiff has, however, agreed that the dismantling of Grace’s ships would impose an inequitable hardship, and if it is successful in this case will be content with money damages for past infringement, and an injunction only against new infringing installations. Defendant seeks an adjudication that the patent in suit is not infringed and is invalid and void. Defendant further seeks a decree that the patent is unenforceable because of plaintiff's alleged acts of misuse and violations of the Federal antitrust laws and that plaintiff is estopped from asserting the patent against the defendant. Both parties seek an assessment of costs and an award of reasonable attorneys fees. VALIDITY Statutory Provisions United States Code, Article 35, Section 282. “Presumption of Validity” “A patent shall be presumed to be valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.” The burden is a heavy one. Copease Mfg. Co. v. American Photocopy Equipment Co., 298 F.2d 772, 777 (7 Cir. 1961); Diamond International Corporation v. Walterhoefer, 289 F.Supp. 550, 554 (D.Md.1968); Grinnell Corp. v. American Monorail Co., 285 F.Supp. 219 (D.S.C.1967). This presumption is strengthened where two of the three patents relied upon by defendant were made of record by the Examiner, and where the remaining art relied upon by defendant was long known and is less pertinent. Chesapeake & Ohio Railway Co. v. Kaltenbach, 95 F.2d 801, 804 (4 Cir. 1938); Bowser, Inc. v. Richmond Engineering Co., 166 F.Supp. 68, 75 (E. D.Va.1958), modified on other grounds, 264 F.2d 595 (4 Cir. 1959). Defendant’s contention that the patent “slipped through” the Patent Office “like a greased pig”, is picturesque but indecisive. Whether a tortuous process before the Examiner, who at last yields without explaining why, strengthens or weakens the presumption, has been questioned. Cook Engineering & Electronics, Inc. v. Hickory Foundry and Machine Co., 231 F.Supp. 271, 273 (W.D. N.C.1964); Aghnides v. F. W. Woolworth Company, 335 F.Supp. 370, 377 (D.Md.1971). The “easy course” certainly eliminates any problem of file wrapper estoppel in connection with infringement. Section 103: “Conditions for patentability; non-obvious subject matter” reads as follows: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner ip which the invention was made. Section 112: “Specification” reads as follows: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set set forth the best mode contemplated by the inventor of carrying out his invention. The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. A claim may be written in independent or dependent form, and if in dependent form, it shall be construed to include all the limitations of the claim incorporated by reference into the dependent claim. An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The Factual Determination of Obviousness The criteria for the determination of obviousness under Section 103 have recently been reviewed by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1965) where the Court said (pages 17-18, 86 S.Ct. page 694): While the ultimate question of patent validity is one of law . . . the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the pripr art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. See Note, Sub-tests of “Nonobviousness”: A Nontechnical Approach to Patent Validity, 112 U.Pa.L.Rev. 1169 (1964). HISTORY OF TWO HATCH GEAR From at least the end of World War II, many efforts were devoted to the development of gear that would permit one boom to serve two hatches, fore and aft, without re-rigging. Sprengel has certainly been in the forefront of this work. About 1953, Sprengel developed so-called rotary-type gears, in one of which the boom was rotated by hand, and in another of which the head of the boom was mounted for rotation, and the lifting apparatus was hung from the boom head. At about the same time, he designed the so-called Falkenstein gear, which successfully served a fore and an aft hatch, but which required some re-rigging. After reading an article on the Falkenstein, the owner of the Hansa line contacted Stulcken about the construction of gear of the capacity of at least 120 tons to service two hatches without re-rigging. In return for such an undertaking, Hansa placed with Stulcken an order for an entire ship, contrary to its previously unbroken practice of having its ships built at another yard. Sprengel worked on this project, first projecting a rotary-type gear, but he did not consider that it could handle loads as heavy as 120 tons. He then conceived the design of the fork-type gear installed on Hansa’s M/S Lichtenfels (PX 28; 9C; United States Patent No. 2,914,193, issued November 24, 1959). This gear had the top of the boom formed in a “Y” or “fork” configuration, and the upper and lower cargo blocks were suspended from the crotch of the fork. When it was desired to swing the boom through the vertical plane to service a different hatch, the cargo blocks were brought together, a wedge on the top of the lower block fitting into a wedge-shaped claw in the bottom of the upper block, and the “composite block” swung as an “inverted pendulum” through the fork over the top of the boom. The fork gear was an immediate commercial success, about 120 having been built prior to 1965 (PX 52, 52A); and defendant concedes that this design was a substantial contribution to the art (Tr. 184). In fact, defendant is rather fulsome in its praise of the fork-type gear—so that it may argue that the patent in suit is inferior to it; or at least no better. There were and are, however, some deficiencies in the fork design. Care had to be taken that the upper and lower blocks were brought snugly together but that this was not overdone; the height and size of the blocks made visibility poor at night; and it was extremely difficult to swing the gear to an opposite hatch under list, or under open sea conditions. Lehmann United States Patent No. 3,042,222 issued in July 1962, on an apparatus referred to during the trial as a “gallows” rig. It is heavily relied upon by defendant and will later be considered in detail. Lehmann United States Patent No. 3,107,790 issued in October 1963, for gear having a rotatable boom head. Although cited in the statutory notice, it is not now relied upon in the argument on obviousness. Sparrow (Newport News) United States Patent No. 3,110,-403, issued November 12, 1963, also involves the use of a rotary sleeve, and likewise is not being pressed by defendant. Some eight years later, while on a trip, Sprengel turned his mind to a consideration of possible designs that would be better than the fork-type gear in speed and ease of operation and safety. The concept of the pendulum block of the patent in suit occurred over a period of five to ten minutes (Tr. 1011) and he completed substantially final drawings of the concept of the single pendulum in two days. The general concept, now apparently simple, was to hang the cargo blocks, pendulum fashion, from the upper end of the boom so that in every position of the boom the cargo blocks would be vertical, whether the boom was swung fore and aft, or laterally. The initial concept was that.of hanging the cargo blocks from only one side of the boom. Such a single pendulum— block gear was successfully installed on the Westphalia. Shortly thereafter, in an endeavor to increase the lifting capacity of the boom, he hung cargo blocks on opposite sides of the boom—the double pendulum. Despite the commercial success of the Fork-Type construction, it was immediately superseded by the Pendulum-Block design. In the specification- of ’390, the general nature of the invention is stated: “This invention relates to a ship’s loading apparatus. It relates particularly to a cargo boom for a ship. It relates more particularly to a cargo boom intended to be installed in through-swinging manner between uprights on a ship’s deck to serve hatches both forward and aft of the boom mounting, and it relates still more particularly to a cargo boom of the kind described which has a pendulum purchase block fitting adapted to swing or be swung past the boom in either direction depending upon whether the boom is serving a forward or an aft hatch.” There follows a reference to the fork-type gear and to its “operational shortcomings.” The specification then continues: “For the accomplishment of the foregoing objects the present invention provides a cargo boom having at least one purchase block fitting at its upper end which is mounted to swing from side to side of the boom, that is, from forward to aft of the boom and vice versa, as a normal rather than an inverted pendulum, and which is provided with two turning heads each of which carries a guide sheave above the upper end of the boom proper. Specific embodiments of this invention include one in which the purchase block fitting is overhung on its pivot pin alongside the boom, another in which the boom is forked at its upper end with the purchase block fitting being pivotally mounted within the fork structure and thus adapted to swing through the boom, and another in which a pair of purchase block fittings are rotatively overhung along opposite sides of the boom. “In the utilization of the present invention the hauling parts of a purchase tackle are led from a lower purchase block through passages in a novel fitting from which the purchase tackle and purchase block are suspended, to and over guide sheaves on this fitting, and from there either directly to guide sheaves in hollow rotating heads on top of the uprights between which the boom is mounted and between which it swings, or intermediately to another fitting, tackle, and block arrangement similar to the first. From the guide sheaves in the heads on top of the uprights, the hauling parts are led to guide sheaves within the uprights and thence out through slots in the walls of the uprights, going finally to the drums of two cargo winches. “When the boom is swung back or forth between the adjacent uprights to serve an aft or a forward hatch, the hauling parts are carried over the top of the boom throughout its whole movement as the purchase block fitting is at all tipies oriented substantially vertically downwardly as a normal pendulum from its pivot point at or very close to the boom’s upper end. Thus the hauling parts of the purchase tackle, led over the guide sheaves on the inventive pendulum purchase block fitting as aforesaid, do not interfere at all with the swinging through maneuver.” Figures 1-12 set forth various embodiments of the invention. Claims 1-3, and 14, 15 and 18 are in suit. Claims 1 and 14, set out below, will, in general, suffice. “What is claimed is: 1) “The combination comprising (1) a ship’s deck, (2) a cargo boom disposed above said deck, said cargo boom having an upper end and a lower end, (3) pivot mounting means for said cargo boom disposed between the lower end thereof and said deck, said mounting means permitting rotation of said cargo boom in a vertical plane to swing through between uprights, and (4) a purchase block fitting adapted to have an upper and a lower purchase block and associated purchase tackle suspended from i,t, said fitting being pivotally mounted on said boom near the upper end thereof in a manner permitting it to swing from side to side thereof as a normal pendulum in the direction of motion of said boom between uprights, and sai,d fitting including guide means extending above the upper end of the boom which is adapted to receive the hauling parts of the purchase tackle and direct each of the same toward an upright. 14) “The combination comprising (1) a cargo boom having an upper end and a lower end, (2) a head pin extending transversely from opposite sides of said cargo boom near the upper end thereof, and (3) a pair of purchase block fittings, each fitting adapted to have an upper and a lower purchase block and associated purchase tackle suspended from it, each fitting being pivotally mounted closely adjacent said cargo boom to swing from side to side of said cargo boom as a normal pendulum with said boom in substantially upright position, one fitting being so mounted on one extension of said head pin and the other fitting being so mounted on the opposite extension of said head pip, and each fitting including guide means extending above the upper end of said boom in upright position which is adapted to receive the hauling parts of the purchase tackle, and direct the same away from said boom.” Defendant challenges validity on grounds of obviousness and failure to claim an operative structure. OBVIOUSNESS In its claim of obviousness, defendant relies upon shear legs, a boat davit, Sprengel’s fork-type gear, and Lehmann’s gallows-type design as prior art. The patents on the fork-type gear and gallows-type gear were cited of record in the prosecution of the patent in suit. The Lehmann gallows-type gear has never been installed in any vessel. a. Old fork-type Defendant expends a substantial portion of the section of its brief relating to obviousness to an argument that the fork-like structures embodied in Figures 10 and 11 of ’390 are inferior to the older fork-type structure embodied in patent 2,914,193. Sprengel candidly admitted that it was the patent attorney who suggested that “we take in every variation” (Tr. 1410) and that the new fork rig while not impractical was approaching it. (Tr. 2696-7). However, in the ’390 specifications it was asserted that the new fork rig was better than the single pendulum rig “for handling loads in the very high weight ranges”, but not as suitable when there would be frequent alternations between fore and aft hatches. One other advantage of the “new fork” is that it is not necessary to remove the Flemish (cargo) hook for a swing through maneuver of the cargo boom, and that the cargo purchase can be employed to swing the boom through against an unfavorable trim. In any event, this “new fork” gear has never been built or installed, and no claim for infringement has been made. Defendant also strenuously argues that the double pendulum rig is not superior to the old fork rig. Defendant cites no authority to support the proposition that a new, different and satisfactory way to accomplish a result is not inventive, because a different way had previously existed. Under this approach, if waste had previously been removed from gutters by manual sweeping into shovels, no invention would exist in mechanical removal, by sweepers and/or blowers or vacuum. The old fork gear did a commercially satisfactory job in view of devices then available. It was, however, superseded by the pendulum gear. Were it now, however, necessary, to establish the superiority of the pendulum gear over the old fork, the Court is of the opinion that this has clearly been done. Defendant’s main reliance, over public response, as to the equivalence or superiority of the old fork over the pendulum gear, is upon literature of plaintiff extolling the virtues of all of its gear; rotary, fork or pendulum. Surely defendant would have been unwilling to accept as proof of superiority of the pendulum gear the self-adulatory praise of plaintiff. The pragmatic supersedure of the pendulum over all other gears is the most persuasive proof possible, since it is related to business advantages, not advocacy. The advantages of a simple swing through as contrasted with lifting and coupling the upper and lower blocks, and eliminating the Flemish hook, is obvious. Defendant contends that the “modification” of the inverted pendulum in the old fork-type gear to a normal pendulum in ’390 is obvious. However, in its brief on infringement (p. 28), defendant argues that a reversal of rotational elements is not an equivalent, citing Blaw-Knox v. Hartsville Oil Mill, 394 F.2d 877, 883, 884 (4 Cir.1968). b. “Shear legs”—Knight’s Modern Seamanship Defendant relies upon plate 44 of Knight’s Modern Seamanship (PX 14, PX 16). This old rigging system includes a pair of shear legs supporting a cargo purchase having a pair of upper and lower cargo blocks and an equalizing block between the upper cargo blocks. Fore and aft movement was not contemplated because there are no calculations to show the related stresses. There is no pendulum, block fitting because there is no boom. Bebler, an expert, whose deposition was taken by plaintiff, but who was not employed by plaintiff or its counsel testified to some similarity in approach, the shear legs being the “simplest of elements—a pulley—known from the earliest time of man, to a rather sophisticated bearing-mounted assembly . . . He further testified: “A. Most of us live on past experience, and while just for example this PX 14 may be used on shear legs, I personally had never seen it. To the best of my knowledge, we had never used a split load center line system with two winches hauling on it in any of our previous conventional heavy-lift rigging. I have no doubt somebody else thought of it but never developed the hardware to make it a completely useful thing. Once it is accomplished you can say, ‘Oh, yes, the Egyptions used this same sort of rig with pulley and block and fall back in the mid-centuries,’ so when you are saying it is something obvious, yes, it could have been, but apparently i+ was not, because it was not generally or well-accepted prior to that time, nor does it fall within my own experience to say that I have seen it tried with good, bad or indifferent results. “Q. You had seen it tried? “A. No. * * * “It is a case of hindsight instead of foresight.” Defendant’s expert, Stiglich, admitted that the shear legs device was not directed to cargo handling as such; that the drawing was in error; that he had never seen shear legs used for as much as 80 tons, and that additional blocks would be needed; that the structure was not intended for repeated operation; and that he would not specify its use on ships. c. Boat davit—Ashe Patent 1,257,664 (PX 2). Davits may loosely be considered as “devices in the nature of booms or cranes from which a life craft is lowered by means of cables, or other added lowering means, to the water.” Note the emphasis on “lowering”. A cargo boom must, however, lower, raise, and transfer. Sprengel would not characterize Ashe’s davit arm as a boom; a cargo boom must not only move up and down, but to port and starboard. Bebler felt that Ashe’s davit had no bearing on the invention in suit. It was designed for special purposes not applicable to heavy lift cargo gear Although Stiglich testified that he thought that the pendulum was obvious in view of Ashe, the old fork, and Lehmann ’222, he admitted that Ashe was primarily related to lowering; that if the cleat were placed as shown in the patent drawing, it would cause the line to wrap around the “boom”; and that a “fair lead” would be required. After some apparent evasion, he finally admitted that the hauling parts of the tackle in the Ashe patent were guided from the top of the davit arm down to another portion of the davit arm, and not guided away from the davit arm. Claim 14 of ’390 calls for guide means for directing the hauling parts of the purchase tackle “away from” the boom. While Stiglich referred to having seen one arm of the equivalent of the Ashe davit used, it was only to lift an undescribed load, which was pulled by a tag line to an open lower deck—a far cry from a cargo boom lifting cargo out of or lowering it into, a hold, and capable of swinging through to service another hatch. If Knight plus Ashe taught all that was necessary to know to develop a cargo boom to service two holds, no patents for rotary, fork, pendulum or other gears for the same purpose should ever have issued. d. Lehmann Patent 3,042,222 (PX 36). This patent, issued on July 3, 1962, on application filed April 13, 1959, relates to the “gallows” boom previously mentioned. It is worthy of more than footnote emphasis that while the preferred structure is mounted on a turntable, Claims 1, 2 and 5 do not refer to a turntable. Compare this with the criticism of Figures 10 and 11 of the patent in suit. The Court would be inclined summarily to dispose of citation of Lehmann ’222 on the contention of obviousness, since at the trial and in argument and briefing it was treated by defendant as a two-legged “boom” mounted on a turntable. The upper cargo block “is pivot-ally mounted at the head of the boom to permit the cargo purchase to swing from one side of the boom when shifting from one hatch to another . . ,” It has been shown that efforts to meet the problem of shifting a cargo boom to serve two hatches without rerigging had been attempted by rotating heads on the tops of booms; by rotating the boom on a pivoted base; and Lehmann ’222 adds a turntable to rotate the boom and winches. But the arrangement of Lehmann ’222 by which the boom and winches are rotated, pivotal mountings being provided to permit the cargo purchase to swing from one side of the boom to the other side in this process, is completely different from the patent in suit, where the boom does not rotate, but moves fore and aft, and the cargo purchase does not pivot or swing from one side of the boom to the other, but pendulates with the fore and aft swing of the boom, always remaining on the same side(s) of the boom. The processes and concepts are completely different; and while Lehmann ’222 may well have been anticipated or at least made obvious by the prior art, this is not true of Sprengel ’390. Defendant seems to be properly sensitive as to the practicality of Lehmann ’222, which has never been pragmatically demonstrated. The Court is fully aware of the rule that the issuance of a patent creates a “presumption” that the structure disclosed is operative. Simmons Company v. A. Brandwein & Co., 250 F.2d 440, 447 (7 Cir. 1957). Even if Lehmann ’222 were practical, the Court would still be clearly of the opinion that it did not make Sprengel ’390 obvious. Despite its reliance on the presumption of operability from the mere issuance of a patent, defendant devotes approximately one-third of its total argument on obviousness to an effort to show that Lehmann '222 is operable. First, it is argued that skepticism as to the attack on operability of the Lehmann ’222 patent “should be particularly great” since the patentee was a naval architect “and is known to have actually designed the successful rotary two hatch cargo gear” of United States Patent No. 3,107,790 “which was actually placed on operating vessels of Prudential Lines . ” However: (1) The fact that an inventor has one practical invention does not necessarily mean that another patent of the same inventor is operable. (2) The “successful two hatch rotary gear” is covered by a patent in which the filing date is after the filing date of ’222, and its date of issuance is after that of ’222. It might just as plausibly (or implausibly) be argued that Lehmann realized the impracticability of the device ultimately covered by '222, an*’ went to a different rig in ’790. (3) The “successful rotary two hatch cargo gear” of ’790 was installed on only two ships on a “two for the price of one” deal. A rather modest success. (4) The Lehmann ’222 gear has never been installed on any ship. Second, the gallows rig was listed in a “Cargo Handling Study” prepared by George G. Sharp, Inc., for the Maritime Administration. Although Stiglich had been associated with the Sharp organization, he was not familiar with the calculations, if any, made by Sharp and made no attempt to familiarize himself with them before testifying; and had never discussed the usefulness or feasibility of the gallows-type design prior to his contact with this suit. Third, defendant discusses at length the testimony as to the practicality, or impracticality, of the Lehmann ’222 rig. In this connection some language difficulties were apparent in Sprengel’s testimony, in which he stated that he first faced the English word “impractical” in this Court. The Court believes it fair to say that his final conclusion was that while an operative gallows-type gear could be constructed, the cost of construction and maintenance of Lehmann ’222, as compared with the pendulum rigs, would make the Lehmann ’222 impractical from a business or economic standpoint. Admittedly, rotating platforms can be and have been used for the support of cargo blocks secured to a cross-piece at th upper end of the two parallel sides of a “boom”, which do not swing over center. There is no evidence that they have ever been, or could be, used for a 120 ton load. Sprengel took the position that the boom of Lehmann ’222 is deficient due to torque caused by the topping lifts when the boom is trained out and the force in the shorter of the topping lifts has gone to zero. Despite Stiglich’s denial that zero force does exist in the Lehmann gear, Sprengel demonstrated its possibility on the electric model of the ’390 gear. Although Stiglich offered detailed computations relating to the gallows design, they did not include many elements, such as three-dimensional forces, torque, deflection, or calculation of the gooseneck design. The model of Lehmann ’222 was built from a sketch prepared by Stiglich, who checked it, and had the wiring changed. As rigged, the gear could be used for light cargo only. Moreover, because of the rotating platform, Lehmann ’222 would require the use of separate winches for auxiliary, or lighter cargo, booms. Were it necessary to choose, the Court would hold that, while at great expense Lehmann ’222 could be made workable, it would be definitely inferior to the Sprengel ’390 pendulum; a conclusion which it shares with (or is shared by) the shipping industry. (5) Patent as valid reference irrespective of actual use. While admitting that the gallows rig of Lehmann ’222 has never been used, defendant argues that this does not detract from the effectiveness of the teaching of that patent. The short answer is that the use of a rotary table, requiring the turning of the boom by 180° does not teach the use of pendulum gear, and a raising and lowering of the boom fore and aft on a gooseneck. The cases cited by defendant do support the proposition that a paper patent is relevant on obviousness, but the primary thrust has been where the paper patent was an anticipation. National Filters, Inc. v. Research Products Corp., 384 F.2d 516, 518 (5 Cir. 1967); Morton v. Ladd, 218 F.Supp. 824 (D.C.D.C. 1963); B. F. Goodrich Co. v. United States Rubber Co., 147 F.Supp. 40, 63 (D.Md.1956) affirmed 244 F.2d 468 (4 Cir. 1957). The Goodrich case at page 63 and the therein cited cases of Western States Machine Co. v. S. S. Hepworth Co., 147 F.2d 345, 350 (2 Cir. 1945) and Zephyr American Corporation v. Bates Manufacturing Co., 128 F.2d 380, 385 (3 Cir. 1942), dealt only with the use of paper patents for the Section 102 defense of anticipation. (6) Manner of conceiving the rig. Defendant argues that “it is evident that the conception of the rig of the patent in suit was not in response to any serious and long unsolved problem”, on the ground that the problem of swing through without re-rigging had been “solved” by a number of earlier rigs such as the old fork, and rotary gear. It certainly had not been completely satisfactorily solved, as shown by the fact that the old fork, although highly successful commercially, was immediately superseded by the pendulum gear. The lack of complete satisfaction is shown by the Sperg patent by an employee of Sun, No. 3,286,851, issued November 22, 1966 on application filed November 6, 1964. Defendant again adverts to the short period involved in the conception and birth of the pendulum rig. While the period of gestation may vary from two years in elephants to nine months in humans to days with fruit flies, this Court has been cited to no authority, and is aware of none, that equates novelty and usefulness with length, or shortness of time. As Sprengel aptly put it, “You either have it, or you don’t have it.” He had it. (7) Independent development of three separate rigs. Defendant contends that “three separate pendulum swing through rigs were developed independent of plaintiff and Mr. Sprengel.” This appears to be inconsistent with defendant’s immediately preceding contention, noted above, that Sprengel’s conception was not in response to any serious and long unsolved problem. If this were a correct appraisal, at least four persons wasted a very substantial amount of time and money on a nonexistent problem. The three rigs mentioned by defendant are: (a) A double pendulum gear developed by the East German Warnowwerft yard. This resembled the double pendulum rig in some respects but the method of fixing the span or topping tackle to the boom differed. The pendulum principle may well have been derived from Sprengel, since Warnowwerft’s patent application was not filed until October 1964, while Sprengel’s invention was conceived, and the first single pendulum block was sold by Blohm & Voss, in 1963. Moreover, at the request of Warnowwerft, Sprengel discussed the double pendulum in 1967 or 1968. “They asked us if we could have some agreement.” Warnowwerft took a license (DX 25). (b) Sperg patent No. 3,286,851. Sperg, a Sun employee, in June of 1964, prepared a sketch of a double pendulum rig. This was abandoned, and the patent issued to Sperg does not have a pendulum fitting. This would seem to the Court clearly to negative obviousness. Sperg’s first sketch of double pendulum fitting, and his abandonment thereof, and the securing of a patent for a different gear, show that he did not regard the .pendulum device as the “obvious” solution to the swing-through problem. Sprengel did. Moreover, Sun did not install the Sperg patented gear on the Santa Lucia class, or any other vessel constructed by it. (c) Stiglich. Defendant states: “Mr. Stiglich is the third independent person to come up with the basic concept of the Sprengel invention. He conceived a heavy lift rig with sheaves mounted at the head of the boom which was in principle identical to the Sperg rig as shown in plaintiff’s Exhibit 68 (R. 2241-6). Mr. Stiglich’s independent conception was approximately the second quarter of 1964 (R. 2241-A)”. What Stiglich in fact said was that in the latter part of 1963 in considering heavy lift gear for an American President Lines, ship, he had experienced difficulty with the Stulcken fork-type boom; the engineering manager for American President Lines was quite disturbed at the forks, which he felt “were ridiculous in some respects”. Stiglich did a little study, and “came up with an idea of putting a pin through the head of the boom, and mounting sheaves on it and providing tackle on each side of the boom in the form of a split hoist.” He showed the model he had made to Klewsaat of MacGregor in the second quarter of 1964, and showed him “a couple of sketches of the solution to the fork, who then showed drawings for a patent application for the single pendulum rig”. Stiglich then testified that the “idea of the principle” in the Sperg patent was identical to one he had, “in that it had the cross pin through the head of the boom with multiple sheaves and the split cargo hoist” but he had not worked the idea out in as much detail as shown in the Sperg patent. The importance Stiglich attached to this “idea of the principle” is shown by the fact that he did not retain the sketch, or a copy of it; he thought he might have left it with Klewsaat. Klewsaat categorically denied ever receiving any such sketch from Stiglich. Notably, there is no claim by Stiglich that his sketch showed any pendulum gear. By way of summary, despite shear legs and Ashe, no one (including the designers of rotary heads, rotary booms and rotary platforms) prior to Sprengel came up with pendulum gear for a boom handling 120 ton or heavier loads, capable of servicing two hatches without re-rigging. Unobviousness is further demonstrated by the reaction of those skilled in the art when they learned of Sprengel’s invention. Bebler thought the invention was “new and novel”. Hamburg America Line, the purchaser of the first pendulum-block gear, was so skeptical that Sprengel was forced to agree that if the pendulum boom did not operate as represented, he would replace it with a fork-type gear. No replacement was made or demanded If the pendulum were so obvious, Sperg’s “invention” would have been even more so. Yet Sperg obtained a patent, in the prosecution of which defendant’s counsel did not direct the attention of the Patent Office to shear legs and davits—now so heavily relied upon. (Defendant’s counsel deny then knowledge of shear legs and davits now relied upon. Defendant’s Reply Brief, p. 11). The case is one in which all the data urged in support of obviousness were available to every one; but only Sprengel came up with a pendulum. Simple as that device may seem in the light of hindsight, it escaped all others. Simplicity, instead of an objection to invention, may constitute its great excellence and value. “It only remains now for the wisdom which comes after the fact to teach us that . . . [Sprengel] discovered nothing, invented nothing, accomplished nothing.” Carnegie Steel Co. v. Cambria Ivan Co., 185 U.S. 403, 446, 22 S.Ct. 698, 715, 46 L.Ed. 968. See also Diamond International Corp v. Walterhoefer, 289 F.Supp. 550, 552-553, 563-554 (D.Md.1968) and cases cited. The Court unhesitatingly holds that even apart from commercial success, Sprengel’s Patent ’390 is valid under the requirements of United States Code, Title 35, Section 103. FAILURE OF CLAIMS TO RECITE AN OPERABLE STRUCTURE This contention, that the claims of ’390 fail to meet the specificity of United States Code, Title 35, Section 112, involves a logical inconsistency with the contention that the patent is invalid on the ground of obviousness. Certainly one “having ordinary skill in the art” would find it obvious not to develop an inoperative structure. If the pendulum gear were obvious, it must be operative. Further, the argument advanced that Lehmann '222 is presumed to be operative merely because the patent issued, even although it had never been used, would apply with even greater force to ’390, on which not only has a patent issued, but substantial commercial success has been achieved. With the authorities cited by defendant that a claim to be valid must recite a structure that is capable of performing its purported function there can be no quarrel. No purpose would be served by citing them, or supplementing them. Apparently the charge of inoperativeness is limited to claims 14, 15 and 18 which are in terms directed to a double pendulum rig. The charge is primarily directed to the failure of the claims to call for (a) a single runner, and to define the structure for transferring the runner from one purchase block fitting to the other purchase block fitting by an equalizing sheave arrangement. To this there are several replies. (i) Perhaps ad hominem, as drafted and filed by Sun’s counsel, Claim 1 of Sperg’s application did not claim an endless rope or cross-over sheave; and as allowed does not refer to a cross-over sheave. (ii) The double pendulum can be operated without an endless rope and crossover sheave, although it is doubtful if this would be satisfactory in ordinary use. (iii) Knight clearly shows an equalizing sheave. Old and well-known elements need not be included in claims. Rohm & Haas Co. v. Roberts Chemicals, 245 F.2d 693, 697 (4 Cir. 1957). (iv) This element is adequately disclosed in the specifications and drawings. Failure to recite: (b) A structure permitting the upper purchase cargo blocks to move transversely. Admittedly, although the patent discloses a pin fitting permitting this movement, the claims contain no specific reference thereto. In addition to Rohm & Haas, supra, see Proctor & Gamble Manufacturing Co. v. Refining, Inc., 135 F.2d 900, 906 (4 Cir. 1943). This particular element is not part of the invention and should not (and probably could not properly) have been incorporated in the claims. SPRENGEL AS PATENTEE AND EMPLOYEE Defendant contends that the weight-of Sprengel’s testimony is greatly lessened by the fact that he is not only the patentee of ’390, but also is an employee of plaintiff. The Court observed Sprengel over extended periods of time as a witness. He impressed the Court as one of the most forthright and honest witnesses the Court has seen as a judge or in private practice. Of the rather nit-picking items cited by Defendant, only one justifies a specific examination. This is the assertion that Sprengel was less than candid in stating the inventors of the old fork patent. In fact, he offered a completely satisfactory explanation of how the patent as issued happened to include the names of three inventors. (Tr. 1437-9). Application was made in Germany for a patent on a rotary rig, of which patent Kohnenkampf, Sprengel and Tietgen were co-inventors. Later an addendum was filed, apparently properly under German law, to add the old fork, the invention of Sprengel only. The combined application was filed in the United States. Later the rotary part was withdrawn, leaving only the fork. By oversight, the names of Kohnenkampf and Tietgen were not stricken. Application was filed in the Patent Office for a certificate under 35 U.S.C. § 256 and Rule 324 deleting the names Johann Dietrich Kohnenkampf and Hans Peter Tietgen as joint inventors in Patent No. 2,914,193. Counsel for plaintiff have been advised by the Patent Office that the certificate of correction has been approved and will be issued in due course. The change in priority date from February 11, 1954 to April 5, 1954, is clearly non-prejudicial to defendant. It is unnecessary to consider whether the change could have been made in this Court, under Iowa State University Research Foundation v. Sperry Rand Corp., 444 F.2d 406 (4 Cir. 1971). The Court finds as fact and concludes as a matter of law that Patent No. 3,-236,390, and Claims 1-3, 14, 15 and 18 are valid. ALLEGED MISUSE OF PATENT Having found Patent ’390 to be valid, normally the Court would proceed to the question of infringement. However, defendant with more than ordinary vigor and earnestness, urges that the patent is unenforceable because of misuse—conduct with regard to the patent that is beyond the scope of the patent monopoly. If this be true, the patent is unenforceable, however egregious the infringement, until the misuse is purged. Defendant has standing to raise the misuse defense, even though it is not a licensee. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 493-494, 62 S.Ct. 402, 86 L.Ed. 363 (1942); Rocform Corp. v. Acitelli-Standard Concrete Wall, Inc., 367 F.2d 678 (6 Cir. 1966); Berlenbach v. Anderson and Thompson Ski Co., 329 F.2d 782 (9 Cir. 1964); Baldwin-Lima Hamilton Corp. v. Tatnall Measuring Systems Co., 169 F.Supp. 1 (E.D.Pa.1958), aff’d per curiam, 268 F.2d 395 (3 Cir. 1959). The alleged misuses are claimed to be: 1. International patent agreements, violating the anti-trust laws, resulting in an unlawful division and allocation of markets, restraining the foreign commerce of the United States. 2. Requiring MacGregor to pay royalties on unpatented masts. 3. Tying unpatented material and services to the patent. 4. Precluding the licensee from challenging the validity of plaintiff’s patents. Of course, the burden of proof is on the defendant, the proponent of the issue. White Motor Co. v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 699, 700, 9 L.Ed.2d 738 (1963). United States v. Grinnell Corp., 236 F.Supp. 244, 248 (D.R.I.1964); aff’d, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Sperry Products, Inc. v. Aluminum Company of America, 171 F.Supp. 901, 936-938 (N.D.Ohio 1959), mod. and aff’d, 285 F.2d 911 (6 Cir. 1960), cert. den. 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87 (1961). 1. Plaintiff’s International Agreements in Violation of the Antitrust Laws Result in an Unlawful Division and Allocation of Markets, Restrain the Foreign Commerce of the United States and Illegally Insure Plaintiff’s Monopoly Position. In support of these propositions, defendant asserts: (a) Plaintiff dominates the market. Confining itself to two-hatch rigs, defendant points out that of the 272 installations of two hatch gear (excluding defendant’s gear in issue) 221 have been plaintiff’s, or 81%. Of the remaining 51 rigs, 23 are Newport News (Sparrow) rigs, 2 are Lehmann rotary rigs, 20-25 are German gears, and one a Japanese rig. The Lehmann gallows rig has not been installed anywhere. Of the 79 two-hatch rigs installed in the United States, plaintiff accounts for 54, or 68%, with Newport News (Sparrow) accounting for 23 of the remaining 25. Several comments are in order: (i) Two-hatch gear is not the relevant market. United States v. Charles Pfizer & Co., 246 F.Supp. 464, 468-470 (E.D. N.Y.1965); United States v. Charles Pfizer & Co., 245 F.Supp. 737, 739 (E.D. N.Y.1965); United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); United States v. Grinnell Corp., 236 F. Supp. 244, 250 (D.R.I.1964); Diamond International Corp. v. Walterhoefer, 289 F.Supp. 550, 576-577 (D.Md.1968). In fact, the revelant market is heavy lift cargo gear for ships. This includes conventional gear, as well as the rotary head, rotary mast, turntable, bipod, fork and pendulum gears. The owner who contemplates building a ship has an extensive choice. Probably cost and serviceability are the determining factors. (ii) Sprengel (Stulcken, Blohm & Voss) have been in the forefront of the development of heavy lift gear. It is a reasonable inference that their gear has been selected for its performance. In fact, a pendulum gear was installed on the Transcolorado to serve a single hatch. (iii) The Buy American requirements as to American subsidized ships (46 U.S. C. section 1155) certainly make the various gears, such as the German Stulcken, truly competitive. (iv) Conventional and more advanced and specialized gear are alternatives in designing a ship. The differences between their characteristics are less than between cellophane, foil, wax paper, glassine and polyethylene; or between citric, tartaric, fumaric, lactic and phosphoric acids, lemon juice and vinegar; or paper board and molded pulp egg cartons. Even assuming that two-hatch gear is the relevant market, plaintiff’s 68% share of the domestic market is not surprising or improper; plaintiff literally created the market, providing (especially in the fork and pendulum devices) superior gears. Plaintiff lawfully acquired United States patents on the only gear (fork and pendulum types) its licenses ever sold. Both its design and manufacturing quality are superior. Shipowners have specified such gear; e. g. Hansa, Hudson Waterways. The defendant itself specified plaintiff’s gear (then the fork-type.). Somewhat remarkably, defendant in its 26 page reply brief on validity and misuse, devotes two and one-half pages, but not under the topic of misuse, to the argument that commercial success is not such as to support patentability. While admitting that no sales of the old fork-type have been made since the introduction of the pendulum rig, defendant asserts that the single pendulum is already obsolete, and that no sales have been made of the rigs covered by the ’390 patent since May 1967. This is ascribed primarily to the present trend toward containerships; and “orders for other types of gear not covered by the patent .” (Defendant’s Reply Brief, p. 14). It would be hard to make a stronger argument that the gear of the patent in suit does not have monopolistic control, or the possibilities thereof. Defendant’s argument in this respect also seems inconsistent with the contention that two-hatch gear is the “relevant market”. Defendant cites the “web” of agreements covering the major ship building countries of the world, including agreements with: MacGregor—Comarian, Inc. (DX 17 and DX 19) Nissho Company, Ltd. and Lateno Seisakusho and Company Limited of Japan (DX 23) Warnowwerft Warnemunde of East Germany (DX 25) Constantine and Co. Ltd. of England (DX 27) Delta of Yugoslavia (DX 28) and International MacGregor (IMGO) (DX 29 and DX 30—expired in 1969). Defendant contends that these agreements unlawfully divide and allocate the world-wide market for two-hatch cargo gear, by the insulation of each licensee in its own territory from competition with each other licensee with respect to any mast structure covered in any country by a patent held by plaintiff or one of its licensees. This allegedly eliminates price competition, sustains plaintiff’s royalty structure, and restrains the foreign commerce of the United States. So broadly stated, defendant would seem to attack the validity of more than one territorially restricted exclusive license. Obviously, if plaintiff were large enough,' it could operate worldwide independently. Defendant seeks generally to group these together, as if their contexts, contents and scope were similar. They will be considered in the order listed. As defendant places principal emphasis on the MacGregor agreement, the only one with a United States corporation, it is interesting to note the origin of this relationship. The plaintiff builds ships in its yard at Hamburg, and manufactures and installs equipment for such ships, including heavy lift cargo gear of several kinds. It has entered into agreements with various non-German companies for the manufacture, and/or representation as its agents for the sale, of heavy lift cargo gear of its design. MacGregor is a small company having 25 employees which supplies equipment to the maritime industry. Its primary business is in hatch covers, but it also supplies cargo gear of the conventional type, the bipod type and the fork and pendulum-block types of two-hatch gear of plaintiff’s design. MacGregor has no manufacturing facilities of its own. It sub-contracts the manufacture of specially fabricated items and buys standardized parts from others (Klewsaat, Tr. 1613, 1642, 1694; Sprengel, Tr. 841). Plaintiff’s first contact with the United States market for cargo gear was in supplying in 1959 the fork-type gear for the Del Rio class of ships built in the Avondale yard for the Delta Line (Sprengel, Tr. 1443). MacGregor acted as a sales agent (Sprengel, Tr. 1444). Plaintiff then learned of the “Buy American” Act whereby not only must a ship built under subsidy from the Maritime Administration be constructed in a shipyard of the United States, but the equipment installed on it must be produced or manufactured here (46 U.S.C. Section 1155). In fact, the gear supplied to the Delta Line was permitted under a special waiver, and with the knowledge that such practice could not be continued (Sprengel, Tr. 1442-3; 1446; Klewsaat, Tr. 1621-23, 1627; Bebler, PX 123, p. 147). Later, when the Challenger class was to be built for the United States Lines, MacGregor requested a manufacturing license from plaintiff in order to be able to offer gear of plaintiff’s design to shipyards in the United States in view of the Buy American Act (Zeitlin, DX 81, p. 72). The arrangement between plaintiff and MacGregor started out informally, but was formalized in a 1962 agreement (DX 14, 16; Sprengel, Tr. 1431-2). After plaintiff acquired Stulcken and in view of the expiration by its terms of the 1962 agreement, the current agreement (DX 17, 19) was executed in 1967. Defendant examined Zeitlin and Klewsaat at great length during their depositions regarding the negotiations underlying the 1962 and 1967 agreements, respectively, but did not adduce any testimony of plaintiff conditioning a license on MacGregor’s paying money on, or being required to purchase, unpatented goods or services (Zeitlin, DX 81, e. g., pp. 52, 56, 77, 92-93, 117-20, 113-4, 146-9). (1) The MacGregor agreement (DX 17) grants MacGregor the exclusive right to manufacture and sell, and with plaintiff’s prior written approval to cause to be manufactured and sold, cargo handling gear covered by patents owned by plaintiff and listed in Exhibit A to the agreement. It also grants the right to use any improvements, modifications and new inventions controlled by plaintiff; to make, use or sell in its Territory any patented or unpatented inventions, processes or devices owned or controlled by plaintiff; and to acquire from plaintiff all parts and ancillary equipment required by MacGregor. MacGregor’s “Territory” is defined as the United States of America and its territories and possessions, and Canada and Mexico. This is the area as to which Klewsaat testified that MacGregor could compete effectively. (Tr. 1692). Defendant contends that these grants illegally preclude MacGregor from exporting structures of patents not patented in the United States to another country in which they are not patented. Elliott Co. v. Lagonda Manufacturing Co., 205 F. 152, 157 (W.D.Pa.1913), aff’d 214 F. 578, 580 (3 Cir. 1914). There the courts held that language in a settlement agreement between competitors operating in foreign countries that one of the parties licensed “to make, use, and sell to others for use throughout the United States” limited its activities to the United States. The grant of an exclusive license to make and sell a device under patents, trademarks and know-how within a defined area does not of itself constitute a prohibition from selling on a non-exclusive basis outside that area. United States v. L. D. Caulk Company, 126 F.Supp. 693, 707 (D.Del.1954). Where such prohibition is intended, it can be expressly stated, as in Brownell v. Ketc