Full opinion text
JENNEY, District Judge. I shall be most informal in giving this memorandum opinion. This case took seven weeks to try, and there have been pre-trial discussions and motions at one time and another, since the 21st day of October, 1941. Many hundreds of pages of pleadings and briefs have been filed, and literally hundreds of decisions have been cited. My objective will be to indicate, as briefly as is possible after such a lengthy trial, my views on some of the many points which have been raised by counsel; and to give to counsel the reasoning behind my conclusions on these various points. The original Complaint, filed on October 21, 1941, was amended by an Amended and Supplemental Complaint filed on February 28, 1944, and by a Further Amended and Supplemental Complaint filed on the same day. The First and Amended Answer to Further. Amended Complaint filed by defendants Natural Carbonic Products, Inc., L. H. Polderman,- W. L. Benson, C. B. Benson and Natural Carbonic Products, a copartnership, and the answer of the George Pepperdine Foundation, were both slightly amended during the trial. The Answer of Natural Carbonic contains a counterclaim against the plaintiffs, alleging unfair trade practices and violation of the anti-trust laws of the United States. The Pepperdine answer contains a similar counterclaim couched in somewhat different language but containing" substantially the same general allegations. You are all familiar with these allegations in these counterclaims, and I shall not take the time here even to paraphrase them. Counsel for plaintiffs herein have contended that the counterclaim does not plead special damages to defendant, and, therefore, that it should be dismissed. This court felt that it should be governed by the decision of the Second Circuit on April 3, 1944, in Package Closure Corp. v. Sealright Co., Inc., et al., 141 F.2d 972, 978. In that case Judge Frank said in effect that in an action for treble damages for violation of the anti-trust laws, no unusual degree of “definiteness and particularity” is required in pleading the causal relationship between defendant’s violation of the act and plaintiff’s injury; and that particulars can be obtained under the discovery procedure. Similarly, he said, that exactness and precision in pleading damages is not required, especially where the defendant was responsible for creating a situation in which damages could not be measured with precision. In Hancock Oil Co. v. Universal Oil Products Co., 9 Cir., 115 F.2d 45, at page 47, the court said: “The transactions or occurrences that are the subject matter of the complaint need not describe the new and separate cause of action in violation of the Clayton Act in order to secure relief by way of counterclaim. Their true character may be disclosed by a counterclaim supplementing the facts, showing the entire transaction of the plaintiff to constitute such a violation.” Supplementing opinion, 9 Cir., 120 F.2d 959, certiorari denied 314 U.S. 666, 62 S.Ct. 127, 86 L.Ed. 533. See Lynch v. Magnavox Co., 94 F.2d 883, a Ninth Circuit Court of Appeals case; cf. C. E. Stevens Co. v. Foster & Kleiser Co., 9 Cir., 109 F.2d 764, reversed 311 U.S. 255, 61 S.Ct. 210, 85 L.Ed. 173. This court therefore refused to dismiss the counterclaim and granted permission to defendants to introduce evidence in support thereof. We felt, and feel now, that the criterion above indicated by which the counterclaim is to be tested, as a pleading, is quite different from the criterion to be applied to proof. I do not propose to analyze the evidence introduced in support of the counterclaim, sketchy as it was. Suffice it to say that early in the course of the trial the court called defendants’ counsel’s attention to the foregoing decisions and warned them that they must be prepared to put on specific proof, not only of alleged illegal acts, but of the damage suffered by defendants. Defendants have relied to a great extent upon the theory that where there is so much smoke there must be some fire. They cite the large number of patents owned or controlled by plaintiffs or their associates; the licensing by the parent corporation to wholly-owned subsidiaries; the great wealth of plaintiffs; their highly specialized patent lawyers and well-trained engineers; their shrewdness in business organization and operations; the fact that so-called victims cannot ordinarily afford to fight, and must therefore agree to pay a royalty; the suppression and abandonment of certain inventions and patent applications to extend the ostensible monopoly afforded by the patent in suit, etc. The counterclaim asks for an injunction and for damages not only because of violation of the anti-trust laws, but also because of the committing of acts by plaintiffs which it is alleged amount to unfair competition. The evidence in support of these allegations of the counterclaim is commingled with the evidence offered in support of the allegations of the answer that plaintiffs do not come into court with clean hands, and should therefore be denied relief. The allegations in the pleadings are somewhat confused in that regard also. In this connection defendants contend, in effect, among other things, the following: 1. That plaintiffs have formed a patent pool, having garnered some 40 patents for the purpose of attempting to intimidate, overwhelm and coerce the entire solid carbon dioxide industry to deal exclusively with plaintiffs. 2. That plaintiffs have granted licenses to wholly-owned or partially-owned subsidiaries with interlocking directorates in order that these companies might act as bellwethers and induce other small or independent units in the industry to believe that plaintiffs’ patents were sound and that they should take licenses rather than fight. 3. That plaintiffs have offered and granted to others, and subsequent to the filing of the complaint, offered to one of the defendants a license contract under plaintiffs’ patents obligating the licensee to pay to plaintiffs royalty upon all solid carbon dioxide (an unpatented commodity) sold by the licensee, whether or not such products were produced by the apparatus subject to or in accordance with the method of the patents involved. 4. That plaintiffs have made false representations as to the scope of their patents in order to induce the taking of licenses. 5. That plaintiffs have suppressed and abandoned certain applications in an attempt to extend unjustly the asserted monopoly of the patent in suit until December 24, 1952. 6. That plaintiffs have suppressed the so-called Martin application for United States patent. 7. That defendants have been forced by plaintiff to either (a) discontinue the manufacture of solid carbon dioxide and lose their large investment in plant and wells, or (b) take a license from plaintiffs, or (c) bear the tremendously heavy expense of litigation. These are but illustrations of the contentions of defendants on this point, which must necessarily be given careful consideration. Charges of fraud or of over-reaching should be established by clear and convincing proof. Just because one is proved to be clever, adroit, resourceful and successful does not mean that he has been proved to be dishonest — that he is guilty of more than being mistaken as to the law or the fact. If illegality, fraud or dishonesty, and legal damage therefrom, exist, that must be shown by the evidence to the satisfaction of the court. If a court of equity is to close its doors to a litigant, the facts upon which such action is predicated must be established by the alleging party, and the quantum of proof is well known to all of you and need not be repeated. Only one of these contentions of defendants (3 above) requires additional consideration in connection with this matter of the position of the plaintiffs in this litigation. Plaintiffs admit that they offered a license to defendant, which license provides for payment to plaintiffs of a royalty, “whether or not such solid carbon dioxide has been manufactured in accordance with the methods, processes and apparatus of any one of the licensed patents.” That a court of equity may refuse aid to a patentee when it has been shown to be using the patent contrary to public policy is well established. As said by the Supreme Court in Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, at page 492, 62 S.Ct. 402, at page 405, 86 L.Ed. 363: “It is a principle of general application that courts, and especially courts of equity, may appropriately withhold their aid where the plaintiff is using the right asserted contrary to the public interest. Virginian Ry. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789; Central Kentucky Co. v. Railroad Commission, 290 U.S. 264, 270, 273, 54 S.Ct: 154, 156, 157, 78 L.Ed. 307; [City of] Harrisonville v. Dickey Clay Co., 289 U.S. 334, 337, 338, 53 S.Ct. 602, 603, 77 L.Ed. 1208; Beasley v. Texas & P. R. Co., 191 U.S. 492, 497, 24 S.Ct. 164,165, 48 L.Ed. 274; Securities & Exchange Commission v. United States Realty Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293; United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 801, 83 L.Ed. 1211. Respondent argues that this doctrine is limited in its application to those cases where the patentee seeks to restrain contributory infringement by the sale to licensees of a competing unpatented article, while here respondent seeks to restrain petitioner from a direct infringement, the manufacture and sale of the salt tablet depositor. It is said that the equitable maxim that a party seeking the aid of a court of equity must come into court with clean hands applies only to the plaintiff’s wrongful conduct in the particular act or transaction which raises the equity, enforcement of which is sought; that where, as here, the patentee seeks to restrain the manufacture or use of the patented device, his conduct in using the patent to restrict competition in the sale of salt tablets does not foreclose him from seeking relief limited to an injunction against the manufacture and sale of the infringing machine alone. * * * “It is the adverse effect upon the public interest of a successful infringement suit in conjunction with the patentee’s course of conduct which disqualifies him to maintain the suit, regardless of whether the particular defendant has suffered from the misuse of the patent.” (Citing a large number of cases.) See also Barber-Colman Co. v. National Tool Co., 6 Cir., 136 F.2d 339; Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 64 S.Ct. 268; B. B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S.Ct. 406, 86 L.Ed. 367; Carbice Corp. v. American Patents Corp., 283 U.S. 27, 33, 51 S.Ct. 334, 75 L.Ed. 819; Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371; Dehydrators, Ltd., v. Petrolite Corp., 9 Cir., 117 F.2d 183 (Judge Wilbur); Sylvania Industrial Corp. v. Visking Corp., 4 Cir., 132 F.2d 947, petition for writ of certiorari dismissed on motion of counsel for petitioner, Sylvania Industrial Corp. v. Visking Corp., 319 U.S. 777, 63 S.Ct. 1033, 87 L.Ed. 1723. These general principles of business conduct in connection with the exercise of patent monopolies are now well recognized in our jurisprudence. We have, however» been unable to find any case holding specifically that the precise language of the license agreement, above quoted, constitutes an unjust and unfair use of patent rights, used under the circumstances here established, and is, therefore, contrary to public policy. It is noted that the challenged clause is a part of the formula for determining, under the license agreement, the amount of royalty to be paid by licensees. It should be noted also that the evidence shows that this form of license agreement was amended as of April 1, 1942 (Ex. 48) as to Mathieson, on February 4, 1944, as to Pure Carbonic, Inc., and shortly thereafter as to other licensees. Plaintiffs contend also that the clause in question was never at any time used to collect royalties from licensees, even though it appeared in the contract. This court does not feel that the alleged violations of the anti-trust acts and the alleged acts of unfair competition have been satisfactorily proved, nor does it feel that defendants' proof of damage has been satisfactory. Judgment therefore will be for plaintiffs on the counterclaim. Plaintiffs objected to the admission in evidence of certain admissions made by them in response to requests for admissions under Federal Rules of Civil Procedure, Rule 36(a), 28 U.S.C.A. following section 723c. Prior to the filing of the counterclaims, defendants requested plaintiffs to make certain admissions. Plaintiffs felt that the matter covered by certain of these requests for admissions was irrelevant, but state that they answered them under the provisions of Rule 36 rather than suffer a possible penalty for not answering, intending to make objection to admission at the time of trial. Some of these may have been, and undoubtedly were, irrelevant at the time the answers were made, but many of them became relevant after the filing of the counterclaim. Plaintiffs contend that these admissions should be rejected; that they had no way of protecting themselves at the time the answers were made; and that the rules do not provide for objections, as is the case with interrogatories under Rule 33. See Commentary, 5 Federal Rules Service 835. Some of our courts have held that Rule 36 operates extrajudicially and that the court should not consider an application for relief from compliance with the rule. They place upon the party called upon to respond the burden of deciding for himself whether there are good reasons for refusing either to admit or deny and take the risk of having to pay the costs incurred in proving them, instead of having the court advise him in advance as to what course he ought to take. Penmac Corp. v. Falcon Pencil Corp., D.C.S.D.N.Y., 2 F.R.D. 492; In re Stein, D.C., 43 F.Supp. 845; Walsh v. Connecticut Mutual Life Ins. Co., D.C., 26 F.Supp. 566; Modern Food Process Co. v. Chester Packing & Provision Co., D.C., 30 F.Supp. 520; Momand v. Paramount Pictures Distributing Co., D.C., 36 F.Supp. 568. This court has always permitted attorneys to appear on law and motion day and make objection to any request for admission. The rules provide that the admission must be made “within a period designated in the request, not less than 10 days after service thereof or zmthin such further time as the court may alloza on motion and notice." (Italics supplied.) This court has heard these motions and has at times extended the period for answer until the time of trial. Thus, what seems like an unfortunate omission in the Rules of Civil Procedure is avoided. We trust that the new proposed amendments will cover the point satisfactorily. The court feels also that the plaintiffs were estopped to deny the truth of the answers or to object to their admissibility, even though they have become relevant only after they were originally filed. The objection to the admission was overruled at the time of the trial, subject to motion to strike or subject to being stricken by action of the court sua sponte. As to each item the action of the court at the time of the trial will stand. As I have said, closely associated with the allegations of the counterclaim are these allegations in the answer that plaintiffs do not come into court with clean hands. Except as to that point which I have heretofore indicated, the proof of the other contentions of unclean hands is commingled with the evidence offered in support of the allegations of the counterclaim, and we have sufficiently discussed that general matter. The court does not feel that the proof on the subject of unclean hands meets the well-recognized requirements of equity jurisprudence. A detailed analysis of the items of proof seems unnecesssary. You are all familiar with the evidence. Suffice it to say that the charge has not been, in the judgment of the court, satisfactorily proved. On that point, therefore, the decision of the court is against the defendants’ contention. The issue primarily raised by the amended complaint is one of infringement. It is fundamental that there can be no infringement of an invalid patent. It has been suggested that if the court finds noninfringement, it is unnecessary or even improper for the court to consider the question of validity. I do not so interpret either the decisions of the Ninth Circuit Court of Appeals or of the Supreme Court of the United States. There are manifestly many cases in which after a finding of non-infringement it would be improper for the trial court to proceed to make a decree upholding the validity of the patent. If there is no infringement, the question of validity might be moot, as indicated by the courts in the recent cases of Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263; Altvater v. Freeman, 319 U.S. 359, 363, 63 S.Ct. 1115, 87 L.Ed. 1450; Danforth v. Northill Co., 9 Cir., 142 F.2d 51; L. McBrine Co. v. Silverman, 9 Cir., 121 F.2d 181; Leishman v. Associated Wholesale Electric Co., 9 Cir., 137 F.2d 722; Schnitzel v. California Corrugated Culvert Co., 9 Cir., 140 F.2d 275; Richard Irvin & Co. v. Westinghouse Air Brake Co., 2 Cir., 121 F.2d 429; Aero Spark Plug Co. v. B. G. Corp., 2 Cir., 130 F.2d 290. We do not believe, however, that the Supreme Court of the United States or the Circuit Court of Appeals for this Circuit ever intended to prevent a trial court, in circumstances such as those presented in the case at bar, from finding or decreeing noninfringement because of invalidity; otherwise, as part of its campaign to control an industry, or even a small part of it, a patentee or his successors might, conceivably, file and try infringement suits in many District Courts over the country— even though, as a matter of fact and of law, the patent was invalid. Thus, the time of all but one of these District Courts would be wasted, with a resultant expense to the government and congestion of court calendars. The federal courts, by putting this unnecessary and large expense upon litigants, would be thus encouraging and assisting those who sought to maintain an illegal monopoly and to stifle competition. See Muncie Gear Works, Inc., v. Outboard, etc., Co., March 30, 1942, 315 U.S. 759, 768, 62 S.Ct. 865, 86 L.Ed. 1171, by Mr. Justice Jackson; United Carbon Co. v. Binney & Smith Co., December 7, 1942, 317 U.S. 228, 233, 237, 63 S.Ct. 165, 87 L.Ed. 232, by the same Justice; Universal Oil Products Co. v. Globe Oil & Refining Co., 64 S.Ct. 1110, by Mr. Justice Reed. See also the following Supreme Court cases decided before the case of Electrical Fittings Corp. v. Thomas & Betts Co., supra: Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 454, 44 S.Ct. 533, 68 L.Ed. 1098; Smith v. Hall, 301 U.S. 216, 57 S.Ct. 711, 81 L.Ed. 1049; General Electric Co. v. Wabash Co., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. See also the decision of the Ninth Circuit Court of Appeals, speaking through Judge Stephens, in Marchus v. Druge, 136 F.2d 602; Aero Spark Plug Co. v. B. G. Corp., 2 Cir., 130 F.2d 290; and Dixie-Vortex Co. v. Paper Container Mfg. Co., 7 Cir., 130 F.2d 569, certiorari denied 317 U. S. 686, 63 S.Ct. 260, 87 L.Ed. 550. The application for the patent in suit was filed May 22, 1928. The patent was issued December 24, 1935, about seven years and seven months thereafter. The only claims here involved are apparatus claims 4, 31, 32, 33, 34 and 36, and method claims 38 and 39. The patent describes two forms of apparatus for making blocks of solidified carbon dioxide and a liquefying system. One form, with its associated equipment, is illustrated in Figs. 1, 2 and 3, and the modified form is shown in Fig. 5. According to the wording of the patent itself, the apparatus of Fig. 5 is operated in the manner previously described, therein, that is, the machine of Fig. 5 may be used in place of that of Figs. 2 and 3 in the system illustrated in Fig. 1. There is apparently no fundamental difference between the machine of Fig. 2 and that of Fig. 5. The machines of Figs. 2 and 5 are, respectively, horizontal and vertical forms of machines which include the same structural elements and the same relationship between those elements. They perform the same function and they produce the same result. Both of these machines include a chamber, a closure, a piston in the chamber, an inlet for liquid carbon dioxide and an outlet for unsolidified gas. Both machines are adapted to form solidified carbon dioxide and press it into blocks. Both forms of machine are to be used with the pressure-controlling and liquid-supply means of Fig. 1. The only means of maintaining a “definite” pressure in the chamber, 'as shown in the patent, is an exhauster, 81, and a by-pass or diaphragm valve, 84. Process claims were not solicited in the application as filed. About seven years later the two method claims were added by amendment dated November 18, 1935 (Ex. PP). During prosecution, applicants amended their claims to refer to a “closed chamber,” apparently to avoid Elworthy No. 579,866. Every claim in suit indicates specifically that the chamber is sealed or closed, viz.: Claim 4 — “closed compression chamber.” Claim 31 — “normally closed and gas-tight.” Claim 32 — closure to “seal the chamber gas-tight.” Claim 33 — closure in “chamber closing position” is “to seal the chamber from the atmosphere.” Claim 34 — “closed top” and “closing * * * and sealing the chamber.” Claim 36 — “closing * * * to seal the chamber.” Claim 38 — “closed chamber that is sealed from the atmosphere.” Claim 39 — “chamber that is closed to atmosphere.” The application, as originally filed, was entitled “Snow Machine” and references were numerous to “snow.” By subsequent amendment the words “solidified gas” were substituted for the word “snow.” There is apparently nowhere in the application any reference specifically to “triple point” ice. Many amendments were made, as shown by the file wrapper, during the years the patent was being prosecuted in the Patent Office, and interference was encountered. There were many objections entered by the Patent Office, and that- undoubtedly accounted for many of the amendments. There was some confusion in the Patent Office as to just what was intended to be covered by the claims, and there seemed to be confusion in the contentions and proof of plaintiffs both at that time and during the trial. The patent, as finally worded, in its first two lines, states: “This, invention relates to improvements in gas solidifying apparatus * * In a Bill of Particulars filed herein, plaintiffs, admit that they “do not assert in this case that any element of any of said claims is in and of itself new and patentable apart from the combination defined in the claims.” In argument counsel said: “We are not contending and have not contended that any element of the combination of the patent in suit is new and novel in and of itself.” “We are not claiming here that we have any great basic invention. The patent defines it as an improvement.” Judge Morris, one of plaintiffs’ counsel, refers to the patent as covering a “universal” machine and process — which is a broad coverage, and one “devoutly to be wished” in the patent field. In their briefs plaintiffs give a very broad conception to the applicants and to the patent a broad interpretation. At page 11 of what is described as their “Main Brief” they state: “Cole and McLaren conceived the idea that a large part of the liquefied CO charged into a closed chamber, having properly controlled inlets for the compressed gas and properly controlled exit openings therefrom, could be solidified and pressed without tamping in that chamber into a block of really dense solid CO2 of substantially uniform quality and texture, which would not have imprisoned and highly compressed therein any substantial amount of air or even of the CO2 gas into which part of the liquid CO2 would be converted during the charging and solidifying operation, and that such solid block of CO2 so formed would be so dense and structurally sound and strong that it could be released and discharged from that chamber, handled, transported long distances, and used, without tendency of the block to explode from internal pressure of the imprisoned gases or even to fracture or disintegrate. “Cole and McLaren set to work to discover and develop means and methods to accomplish that purpose. They succeeded. The result of their efforts is found in the apparatus and the process of the patent and claims in suit.” Defendants argue that plaintiffs are not, in that explanation, talking about the patent in suit, but about matters unrevealed by the patent and unknown to the evidence. Much of the testimony offered at the trial related not to the claims of the patent in suit as worded, but to plaintiffs’ experts’ conception, Exhibit 7, and to commercial operations which plaintiffs’ expert had observed in the industry and which he did not even attempt, in some instances, to tie into the claims of the patent in suit. Much of Jones’ testimony related to changes which he would suggest in prior art devices in order to build what he personally would consider a satisfactory commercial device — not those changes which would be necessary or required to meet the terms of the claims in issue. Jones also testified that if the patent claims in suit involved invention in the apparatus of Fig. 1, that invention was in the exhauster, 81, and the diaphragm valve, 84. After much testimonial verbiage, the court finally asked Mr. Jones this specific question: “What do you consider to be new and in the nature of an invention about this patent in suit, as you understand the prior art which has been discussed here, and as you understand the information and knowledge to which fhe man skilled in the art had access at that time?” Jones answered: “As to the diagram in Fig. 1, there are several structural elements which I believe have novelty. One is the use of the diaphragm valve and ex-hauster in connection with the solidifying apparatus, and which, without discussing the sufficiency of what the specification says, shows an apparatus which works to produce what, so far as I know, is a new and useful result; that is, it automatically took care of the regulation of the pressure in the chamber, and of the functions of a vent to atmosphere.” (Italics supplied.) The invention was apparently then, according to Jones, in the ability to maintain a “definite” pressure within the chamber. Jones defined “definite” as “constant” or “uniform.” He testified that these two devices, 81 and 84, maintained a pressure of one pound to less than zero gauge, in the solidification chamber during the entire cycle of operation of the machine. The exhauster, 81, functions to withdraw gas from the chamber and drive it into storage for re-use. Apparatus claims 31, 32, 34 and 36 refer specifically to “means for withdrawing the unsolidified gas from the chamber.” Method claim 39 refers to the maintaining of a definite pressure in the closed chamber. This exhauster and valve were represented to the Patent Office, during the prosecution of the patent, as essential elements. Plaintiffs’ witnesses testified that certain experiences of Cole and McLaren, the patentees, had caused them to devise the exhauster and the diaphragm valve. Blocks of solidified carbon dioxide had blown up in their faces. The blocks which they were manufacturing were not stable and frequently disintegrated, due to gas and air content. So they decided to keep the pressure down during manufacture to one pound or less cand avoid those difficulties and imperfections. There is, however, some confusion in Jones’ testimony because he spent a good deal of his time describing the making of solidified carbon dioxide in a chamber designed to withstand pressures of 50 pounds or more. Triple point ice is made at a pressure of about 60.4 pounds, or higher. Commercially, that was the frequent practice in the use of the Cole and McLaren apparatus. In that operation it would be necessary to have a closed chamber. Otherwise, the exhauster, 81, would operate to reduce the pressure down to around zero gauge, and only snow ice could be made. One could not use the ex-hauster and diaphragm valve on an apparatus with an open vent to atmosphere because both air and gas would be sucked into the system, thus interfering with successful operation. To make triple point ice, the vent would have to be closed and 81 and 84 cut off, wholly or partially, by a valve (No. 80A) on the conduit line leading from the chamber to the exhauster (No. 80 of Fig. 1). Jones in referring to Fig. 5 of the patent in suit said: “As to structural elements in the apparatus of Fig. 5, I see two elements there peculiar to its use with carbon dioxide; the double jacket, 102, and the dividing or separating members, 110. But with those minor exceptions, I see no novel mechanical element in the apparatus itself whatsoever.” It must be noticed in this connection, however, that the claims do not refer to a double jacketed wall or chamber and do not include the separating members, 110. If those two items (81 and 84 on the one hand and 102 and 110 on the other) are all there is to the invention of Cole and McLaren and to the claims of the patent in suit, then, manifestly, defendants do not infringe because they have no exhauster or diaphragm valve to suck gas out of the chamber. They use a vent open to the air. Nor do they use the double jacket or the separating members in the pressing chamber. See: Black Diamond Coal-Mining Co. v. Excelsior Coal Co., 156 U.S. 611, 15 S.Ct. 482, 39 L.Ed. 553; Wright v. Yuengling, 155 U.S. 47, 15 S.Ct. 1, 39 L.Ed. 64; Derby v. Thompson, 146 U.S. 476, 13 S.Ct. 181, 36 L.Ed. 1051. Likewise, if all Cole and McLaren did by their invention was to improve the wall construction or the gas withdrawing means of an old combination, they claimed more than they invented in the patent in suit. See Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U.S. 545, 549, 550, 58 S.Ct. 662, 82 L.Ed. 1008, and cases there cited. But counsel for plaintiffs do not seem to follow Jones and are unwilling to accept any such narrow construction or limited interpretation of the patent claims. Judge Morris says that the exhauster, 81, and the valve, 84, are not part of Fig. 5 or its claim, or requisite thereto. He says that the statute required them to give one example or way in which Fig. 5 could be made to function, and the patentee merely gave an example. Mr. Caughey, of plaintiffs’ counsel, when asked by the court to state “Just exactly what you claim was invention, just exactly what were the improvements to the apparatus, just what were the method claims which were secured, properly secured, by Cole and McLaren through this patent,” said in substance: The invention resided in envisioning that you could form carbon dioxide in a closed machine; then constructing a closed machine to do it in, which closed machine consisted of a closed chamber, closed in the respect that it would not come in contact with the atmosphere which would have a deteriorating effect on the product; that, without tamping, you could so distribute carbon dioxide solid so that it could be pressed in the same machine and could be pressed sufficiently so that it would give a commercial product in a closed machine; and the means used being hydraulic plungers to compress it, an hydraulically-operated platen below to hold against the pressure so that the machine could be thereafter opened so that the block could be removed. Mr. Caughey said that he was referring specifically to Fig. 5 and to the fact that it did away with the necessity of tamping, which was inherent in prior art operations. He further said that the elimination of the tamping and the making and pressing in a closed machine, away from the atmosphere, in combination, was the invention. He felt that by a proper interpretation the claims were sufficiently broad to define the invention, making use of the knowledge of the prior art and the skill of those trained in the art. Counsel for defendants feel that plaintiffs are very adroit in shifting their position to meet every objection; that they are extremely resourceful. However, defendants strongly urge — in fact, insist— that the claims of the patent in suit are all clearly invalid because of many fatal defects. They maintain that if one were completely to ignore the broad construction of the claims placed upon them by plaintiffs and were to place a limited interpretation thereon, to the end that some, at least, of those claims could be held valid, they, the defendants, cannot be held to infringe. Defendants contend that in their H.P.M. and Frick presses they do not use a closed chamber; that they do not use an exhauster and diaphragm valve; that they do not use a definite constant pressure during their cycle of operations. They say their chamber is opened to atmosphere during the formation of the block and before pressing, and that in triple point operations in the two presses the supply of liquid carbon dioxide is not shut off after a desired amount of solid is accumulated. But defendants urge emphatically that the claims are all invalid and that those units of the industry — not yet owned or controlled by plaintiffs and their associates —should be relieved, once and for all, of the necessity of paying tribute to plaintiff’s virtual monopoly predicated upon licensing under an invalid patent. Defendants quote as being pertinent to the case at bar the statement of the distinguished Judge Learned Hand in Kalamazoo Loose Leaf Binder Co. v. Wilson Jones Loose Leaf Co., D.C., 286 F. 715, at page 720: “It is strange that 32 claims should be solemnly argued in 250 pages of brief, seeking to monopolize a substantial business, with such a puny support behind them. The power of words is great, greater, I sometimes think, in patent cases than in any others; but the result must depend upon the machines devised, and here nothing of consequence was devised. The whole paraphernalia of patents and claims, with their endless mutation of clause, stands in the end upon no addition to the art which the art did not inevitably bear in its bosom. It is merely a tribute to the instinct of salesmanship, and to the ingenuity, not of the supposed inventors, but of their able solicitors.” The eight claims of the patent in suit seem to the defendants to hang by eight purely imaginary threads of inventive genius; but they are each firmly bolstered, artistically buttressed and elaborately supported by a structure of skilled representatives, patent experts, mechanical engineers, super salesmen, persuaders, business organizers and executives and geniuses of monopoly and protection. One of these contentions of defendants requires particular and preferential treatment, and I think should be taken up first in order. It strikes at the heart of plaintiffs’ case. It is admittedly a fundamental principle of patent law that a valid patent may only issue to the first and original inventor. It is the contention of defendants that the patentees of the patent in suit were not the first inventors, and that, therefore, the patent in suit is invalid. Manifestly, there can be no infringement of an invalid patent. It seems to the court that we should carefully analyze this contention of defendants that James W. Martin was the first inventor and that he not only made the invention, but built the apparatus and subjected it to prior commercial use. To do this properly will take some time, but it seems to the court necessary because of the importance of the law involved and the application of the facts to the law. It is the contention of defendants that the structure of this Martin machine answers every requirement of the claims of the patent in suit; that the elements function in the same way'; that they perform the same operation and that they obtain the same result as the Cole and McLaren machine. The testimony on this question of prior invention and use by Martin is conflicting. We have, on the one hand, the oral testimony, at the trial, of James W. Martin and Walter Lee Hood. Supplementing this testimony is the testimony of Edwin G. Eppenbach, taken by deposition in New York on June 5, 1944, during the course of this trial, and partially supported by records. This testimony produced by defendants supports the prior public and commercial use of the unitary machine described. Present and testifying at the trial were two witnesses for plaintiffs, Harry W. Cole and Malcolm W. McLaren, patentees of the patent in suit. Each of these witnesses contradicted to some extent the testimony of defendants’ witnesses, particularly as this testimony related to conversations with Martin, Hood, et al. about the prior use of the Martin unitary machine. Each denied any knowledge of Martin’s machine, either through oral conversations or by seeing the machine in operation, or otherwise. Plaintiffs, relying upon the decision in the Barbed Wire Patent case, Washburn & Moen Mfg. Co. v. Beat ’Em All Barbed-Wire Co., 143 U.S. 275, 12 S.Ct. 443, 36 L.Ed. 154, and cases prior and subsequent thereto, contend that the evidence produced by defendants should be distrusted and discarded because it is merely oral testimony, not corroborated by documentary or real evidence. The decision of the Supreme Court in the Barbed Wire Patent case is classic; and it has been explained by the Supreme Court and followed by the other federal courts through a long line of decisions. Before we consider the evidence, let us briefly review this line of authorities. In the Barbed Wire Patent case, 143 U.S. at page 284, 12 S.Ct. at page 447, 36 L.Ed. 154, the court said: “We have now to deal with certain unpatented devices, claimed to be complete anticipations of this patent, the existence and use of which are proven only by oral testimony. In view of the unsatisfactory character of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt. Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information. The very fact which courts as well as the public have not failed to recognize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of witnesses who imagined they had made similar discoveries long before the patentee had claimed to have invented his device, has tended to throw a certain amount of discredit upon all that class of„ evidence, and to demand that it be subjected'to the closest scrutiny. Indeed, the frequency with which testimony is tortured, or fabricated outright, to build up the defense of a prior use of the thing patented, goes far to justify the popular impression that the inventor may be treated as the lawful prey of the infringer.” See also Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Radio Corp. of America v. Radio Engineering Laboratories, 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163; Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5, 20, 59 S.Ct. 675, 83 L.Ed. 1071; Deering v. Winona Harvester Works, 155 U.S. 286, 15 S.Ct. 118, 39 L.Ed. 153; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523; T. H. Symington Co. v. National Castings Co., 250 U.S. 383, 39 S.Ct. 542, 63 L.Ed. 1045; Smith v. Hall, 301 U.S. 216, 57 S.Ct. 711, 81 L.Ed. 1049; Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 48 S.Ct. 380, 72 L.Ed. 610; Coffin v. Ogden, 85 U.S. 120, 21 L.Ed. 821. This question has been before the Circuit Court of Appeals for the Ninth Circuit and has been most carefully considered in a number of cases. See, among others: Waterloo Register Co. v. Atherton, 38 F.2d 75; Rown v. Brake Testing Equipment Corp., 38 F.2d 220, 224; Baker v. Dean, 80 F.2d 658; Paraffine Cos., Inc. v. McEverlast, Inc., 84 F.2d 335. It has also been before the Circuit Courts of other Circuits. For example: Becker v. Electric Service Supplies Co., 7 Cir., 98 F.2d 366. You gentlemen are all familiar with these cases and they have, many of them, been the subject of discussion during the progress of this case. Judge Denman, speaking for the Ninth Circuit in the case of Paraffine Cos., Inc., v. McEverlast, Inc., 84 F.2d 335, at page 339, has stated the general rule governing this matter in an exemplary manner as follows: The burden of proof on the issue of prior public use rests heavily upon the party seeking to show such use. Of such a defense the Supreme Court has said: ‘Courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt.’ Washburn, etc., Co. v. Beat ’Em All Barbed-Wire Co., 143 U.S. 275, 284, 12 S.Ct. 443, 447, 36 L.Ed. 154. “To the same effect are Deering v. Winona Harvester Works, 155 U.S. 286, 300, 301, 15 S.Ct. 118, 39 L.Ed. 153; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 60, 43 S.Ct. 322, 67 L.Ed. 523; Rown v. Brake Testing Equip. Corp., 9 Cir., 38 F.2d 220, 223. The rule has been recently restated, perhaps modified, in Radio Corporation [of America] v. Radio Engineering Laboratories, 293 U.S. 1, 7, 55 S.Ct. 928, 931, 79 L.Ed. 163, where the Supreme Court, speaking through Mr. Justice Cardozo, said: ‘Sometimes it is said that in a suit for infringement, when the defense is a prior invention, “the burden of proof to make good this defense” is “upon the party setting it up,” and “every reasonable doubt should be resolved against him.” (Citing cases.) Again it is said that “the presumption of the validity of the patent is such that the defense of invention by another must be established by the clearest proof — perhaps beyond reasonable doubt.” (Citation.) The context suggests that in these' and like phrases the courts were not defining a standard in terms of scientific accuracy or literal precision, but were offering counsel and suggestion to guide the course of judgment. Through all the verbal variances, however, there runs this common core of thought and truth, that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.’ “We think the defendant’s evidence in this case discharges ‘a heavy burden of persuasion,’ that it ‘has more than a dubious preponderance,’ and, in so far as evidence consisting entirely of depositions can do so, that it proves anticipation ‘beyond a reasonable doubt.’ * * * “What this court has previously said of a defense of prior public use, based entirely upon depositions, is .applicable here: ‘If his story is substantially untrue, it is willfully false, and constitutes perjury of the most flagrant type; it cannot be accounted for upon the theory of trick of memory or innocent mistake. * * * To reject such testimony taken as a whole, or to decline to believe it, would, in effect, be to nullify the provision of the statute, by exacting an impossible standard of evidence. The testimony is not contradicted, is not inherently improbable, and would, we think, be accepted as satisfactory and convincing, if not wholly conclusive, in any other kind of case, criminal or civil. Rown v. Brake Testing Equipment Corp., 9 Cir., 38 F.2d 220, 224.” Without attempting to analyze at this time each of these cases and the many others in federal courts which have followed these general principles, suffice it to say that the responsibility seems to rest upon the trial court carefully to examine evidence and thoughtfully to observe the atmosphere of judicial caution which seems to permeate these decisions. These cogent admonitions do not mean that the trial court should forget the fundamental principles of evidence, nor that he should discard credible testimony merely because it is oral and because it deals with events and circumstances long past. The trial court must, however, examine the evidence most critically and must bring to bear, upon that judgment of credibility, all of his training and experience and all of his knowledge of the propensities and vagaries of human beings. Let us then consider, as briefly as is possible, considering the amount of testimony involved and the importance of it, the evidence having to do with this particular point. Martin is a distinguished engineer, an inventor, and a man who was scientifically interested in the solid carbon dioxide industry almost from its beginnings. He was an engineer in a position of responsibility for a predecessor of one of the plaintiffs in this case, Prest-Air Corporation, and a professional man who is entitled to a respectful hearing. He went to the Prest-Air Corporation as early as January 16, 1925. Martin’s testimony is, in effect, as follows: I am going to be rather full about it, because I think it is important. When he first came to work for that corporation, one Pierre E. Haynes gave him a sketch of a machine similar to that shown in the Haynes British patent, Ex. M. That sketch was of a character sufficient to permit an engineer, or even a good all-around mechanic, to build the machine. He, Martin, made drawings of this machine, which was a unitary machine designed to make solid carbon dioxide and press it into a block. This work was done about February, 1925, and the machine similar to that .shown on Ex. L was built by Eppenbach, Incorporated, or some concern under the immediate direction of Edwin G. Eppenbach. This first machine was placed in operation at the Maspeth plant of Liquid Carbonic Company on Long Island, a stock owner of one of the many predecessors of plaintiff, sometime early in March, 1925. He particularly remembers that the working drawings were made in January and February, 1925, and he has reason to remember the date. His wife had just moved up to New York with their young child and had taken an apartment of one of his friends at Columbia University, and she was very much disturbed as to the amount of time he had to spend at the plant, thus leaving her alone in New York City. This Haynes-Martin sketch for the machine was left with Dry Ice Corporation, the successor of Prest-Air, and predecessor of one of the plaintiffs in this case. At the trial Martin presented an explanation of this machine in sketch form (Ex. N). This sketch was made just before the trial but, the witness testified, was made from his clear memory as to what was constructed by Eppenbach under his direction. Some changes he said were made in the machine during the months of March and April, 1925, although the first machine was actually placed in operation at Maspeth in March, 1925. The first change was the removal of the cylindrical snow chamber and the introduction of the liquid carbon dioxide at the base of the cone. The second modification was to take off the cone and to place a screen in the gas return line. The third modification was the use of a wedge-shaped screen and the introduction of liquid carbon dioxide directly into the side of the pressing chamber. Two of these machines, as indicated by Exs. L, O, P, were in actual operation at least until July of 1925, and dry ice blocks made on the machines were actually sold to customers for some months. Martin estimated that between 15 and 20 tons of blocks'were made on these machines and actually sold prior to July, 1925. Walter L. Hood was in charge of production at Maspeth for the period between April and July of 1925. In the early months of 1925 there was not yet developed in this country a ready market for solidified carbon dioxide, although dry ice was put into ice cream cabinets, Eskimo-Pie jars, etc. An ice cream company in Philadelphia used the product made on the Martin machine to ship ice cream into New York. This Martin unitary machine was designed to make blocks of dry ice about 3% inches square and about 7 or 8 inches long. Just before the heavy demands for the July 4th trade, at least one snow tank was placed in operation at Maspeth by Dry Ice Corporation, and several were ordered for the making of the larger blocks — 10 x 10 inches. Between April and June, 1925, Schraft’s put dry ice in their windows in New York as a matter of curiosity. These blocks of dry ice were readily accepted by the trade and the volume of business became so heavy that the trade could not be supplied. Some of the customers insisted upon larger blocks of dry ice, usually 10 x 10-inch blocks, and these had to be made on snow tank machines as the Martin unitary machine only made blocks about 3%-inch square. The apparatus shown on Exhibits L, O, and P, were openly used in manufacturing operations at the Maspeth plant, so that anyone who wished might come in and see them. About September, 1926, Dry Ice Company’s operations were moved from Maspeth to the General Carbonic plant at Sixth and East River, Long Island. It cost about $2,000 apiece to build the first unitary machine or machines in 1925. The snow tanks only cost about $400. It would cost about $10,000 to make a unitary machine to produce the 10-inch blocks and would take some time to make; so they installed the snow tanks. One of these unitary machines was stored in the yard of the General Carbonic plant after the move was made. While the company was conducting its operations at the General Carbonic plant, Martin discussed the making of solid blocks of carbon dioxide with Malcolm W. Mc-Laren who was Superintendent at the General Carbonic plant. Mr. Hood and two other employees, Mr. Fitzpatrick and Mr. Sherwood, were sometimes present. During these conversations Martin discussed with McLaren the possibilities of doing pressing and tamping and snow formation all in one housing so as not to waste gas. These conversations occurred almost immediately after the move to General Carbonic in September, 1926. Martin further testified that the machines used by Martin and described on Exhibits L, O, and P, meet, structurally, all the requirements of the patent in suit. The machine consisted of a pressing chamber provided with a closure. The closure was a plate removably attached to the end of the chamber by means of a C clamp. The machine was provided an inlet for the liquid CO2 and it included a pressing plunger movable within the chamber. The blocks were ejected by the piston. The unitary Martin press was operated to make individual blocks and as an extrusion press. The walls were one inch thick and capable of withstanding high pressures. Some difficulty was encountered in driving the plunger of the press when high pressures existed within the chamber, so a relief valve to atmosphere was put in. Both snow blocks and triple point ice were made on the machine. The pressing plunger did not operate continuously, liquid CO2 being injected into the pressing chamber while the piston was stationary. After snow was formed in the pressing chamber and injection of liquid discontinued, the vent to atmosphere was opened and then the piston was operated to compress the snow into a block against the closure plate, which was held in place by means of a C clamp. The plate was removed to permit the block to be discharged, and then replaced. Martin testified that the large unitary machine capable of producing the 10 x 10 blocks was not made because Dry Ice Corporation did not have the money and it would have been necessary to make new patterns and increase the proportions of the entire machine but no changes in principle of operation or of design were contemplated. Dry Ice Corporation was not reorganized and did not procure any additional capital until the fall of 1927. Martin made a good impression upon the court. He seemed to be trying to tell the truth with meticulous care and to remember exactly how the machine was designed, constructed and operated. The fact that he was not sure of every detail impressed the court as indicating the conscientious nature of his testimony. Martin left' the employ of the Dry Ice Corporation in late 1928, and has since that time not been connected with the plaintiff corporation or any of its predecessors. He has no financial interest whatsoever in the defendants. It did not appear that he was attempting to color his testimony in any way either in favor of or against any of the parties to the litigation. He is not the ordinary casual observer witness, nor even the ordinary lay witness. He is a highly trained mechanical engineer who was interested professionally in dry ice and its manufacture and one who would naturally remember design. After he had appeared in court, Martin’s deposition was taken in New York following the deposition of Mr. Eppenbach. By the testimony of Eppenbach, Martin’s memory was refreshed. He then stated that several unitary machines of the L, O, P type were made and delivered and that three of those came from one Purvis. His memory was refreshed as to the nature of the work done by Eppenbach and the reasons for returning to the snow machine operations. Some slight discrepancies in testimony and Martin’s failure to remember some details in the first instance seem only natural to the court. Walter Lee Hood is also an engineer of standing and ability, a resident of Houston, Texas, not now engaged in the dry ice industry in any way, or in any way financially or otherwise interested in the plaintiff or defendant companies. Hood testified substantially as follows: He was employed by Dry Ice Co., predecessor of plaintiffs, about the 10th of April, 1925. Prior to that time he had been with Carbide and Carbon Chemical, but he left that company at the end of March, 1925. He went directly to work for Dry Ice Corporation at the Liquid Carbonic plant at Maspeth, Long Island, about April 10, 1925. He testified that when he first got there they were using a unitary machine consisting of a cylindrical tank with a funnel bottom in which snow would form leading into a pressing chamber. The machine was provided with an inlet for liquid CCVand a gas outlet. A pressing plunger operated in the horizontal pressing chamber and compressed the snow into blocks 3% inches square by 8 inches long, against a closure plate held by a C clamp. The walls of the chamber were about one inch thick to withstand pressure. When he actually got down to work in the middle of April, 1925, the machine was working. He testified that Exhibit L represented the machine being used at that time in diagrammatic form. In describing the operation of the machine he testified that liquid CO2 was supplied to the chamber, that the chamber was closed or sealed to the atmosphere, that the liquid CO2 so supplied was in part converted to a solid and in part to a gas, that the supply of liquid CO2 was shut off after the solid was formed and before the compression of the solid into a block. The snow was compressed against the plate. After being compressed into a block, the closure plate was removed and the block kicked out. He testified that he was entirely familiar with the snow tank method of operation and that in June of 1925 the company began to use the snow tanks for making snow for blocks of both sizes, 10 x 10 and 3% inches. He said that in June, 1925, a second unitary machine of the type of Ex. L was delivered to Maspeth and he thought possibly also a third machine. He substantiated the testimony of Martin as to the general design of the machine and as to the changes made in it. He remembered directing the installation of the liquid CO2 inlet directly into the side of the pressing chamber. He stated that the machines were located in the corner of the compressor room of the Liquid Carbonic,Co. plant at Maspeth; that they had a lot of visitors; and the unitary machines were open to the public and they never had any instructions not to let the public into the plant. One of these unitary machines was kept in the building there at Liquid Carbonic, after they started using the snow tanks to expedite manufacture to meet the demands; and the second one was just outside the door along the building; both machines being visible to anyone who went by, being merely covered with grease to protect them. He substantiated in general the statements of Martin as to oral discussions with McLaren in which the unitary machine was described to McLaren and his Italian superintendent. He said that they told McLaren that it was an enclosed unitary machine not exposed to the atmosphere and did not lose carbon dioxide; that the gas went back into the system and stayed in. He said he gave McLaren as definite a description of the unitary machine as he was able to do. He cannot remember the exact words but he knows it was as complete a description as he, a trained engineer, was capable of; that he is sure that he told McLaren that there was one of these machines at Eppenbach’s. Hood is sure that Mr. Cole, the other joint inventor, was present at some of the conversations and that neither Mr. McLaren nor Mr. Cole ever told him that they were working on a unitary machine of that type. Hood left Dry Ice the first of May, 1929. He stated that the troubles they had with the unitary machine were not sufficient to prevent their operation to produce ice commercially. They made ice with the machines every day from April 10 until after July 4, 1925, and kept shipments moving all the time. They could not fill the orders and had to ration people. He said that each of the machines with the various modifications they made was used to produce solid blocks of carbon dioxide which were sent out to customers. He personally attended to pick-up sales and testified a daily shipment was made to Canada. He said that the unitary machines were used concurrently with the snow tanks for a time, to speed up production. They put in more snow tanks after June, 1925. He described the unitary machines in substantially the same way as they were described by Martin and was not shaken in his testimony by cross-examination. As was the case with Mr. Martin, the court was much impressed by the testimony of Mr. Hood. He’ seemed to be a clean-cut, thoroughly trained engineer, entirely unprejudiced, attempting to tell the truth exactly as he remembered it. There are some slight discrepancies between the testimony of Hood and Martin but this failure to agree on every detail seems to strengthen — rather than weaken — the testimony. As said by the judges of this Ninth Circuit Court in Wilson & Willard Mfg. Co. v. Bole, 227 F. 607, at page 611: “The appellees criticize the testimony relating to the conference of February, 1911, because of certain discrepancies in the testimony of the different witnesses as to how the conference was called, what was said, who was present, when and where the conference was held, etc. These minor discrepancies tend to strengthen - rather than weaken the testimony. The witnesses were testifying to what transpired more than four years before the trial, and if they all agreed upon every detail it would afford strong and convincing proof that their testimony was prearranged.” On cross-examination, counsel for plaintiff carefully interrogated Mr. Hood as to his interest in the case and as to his' reasons for remembering certain things. Hood was not shaken in his testimony. He described the operation of the machine in detail and his memory as to events and