DONOVAN, District Judge.
This is a patent infringement suit. Plaintiffs seek to enjoin infringement by defendants and demand damages and other relief. Defendants deny liability and allege estoppel and invalidity of the letters patent, and by counterclaim demand a declaratory judgment in their favor.
The complaint identifies the respective parties and then by allegations commendably brief and clear states the cause of action, as follows:
"4. This action arises under the patent laws of the United States, Title 35 U.S. C 271 and 281 et seq. This Court has jurisdiction under Title 28, U.S.C. 1338. Venue is based on Title 28, 1400b.
"5. On December 25, 1956 Letters Patent of the United States No. 2775294 were duly and regularly issued to plaintiff, American Infra-Red Radiant Co., Inc. for an invention in RADIATION BURNERS and since that date said plaintiff has been and still is the owner of said Letters Patent.
"6. On January 27, 1959 Letters Patent of the United States No. 2870830 were duly and regularly issued to plaintiff, American Infra-Red Radiant Co., Inc. for an invention is GAS BURNERS and since that date said plaintiff has been and still is the owner of said Letters Patent.
"7. By agreement effective July 1, 1956 and presently effective, plaintiff Hupp Corporation became the licensee of plaintiff American Infra-Red Radiant Co., Inc., under the aforesaid Letters Patent Nos. 2775294 and 2870830, and acquired the right to sue for infringement of said Letters Patent.
"8. Defendant has been and still is infringing said Letters Patent Nos. 2775294 and 2870830 by making, selling and using or causing to be made, sold and used within the Fifth Division of this Judicial Circuit and elsewhere in the United States burners and components embodying the patented inventions and will continue to do so unless enjoined by this Court.
"9. Defendant has persisted in said infringement with actual knowledge of plaintiff's patent rights and has infringed said Letters Patent deliberately and wilfully.
"10. Plaintiff Hupp Corporation has sold substantial quantities of burners embodying the patented inventions of the aforesaid Letters Patent Nos. 2775294 and 2870830, and since shortly after their issue dates has applied the statutory notice to said burners as provided for in 35 USC 287."
The answer admits paragraphs 3 and 4 of the complaint and the issuance of the letters patent, denies all other allegations of the complaint and leaves plaintiffs to their proof thereof. Defendants' specific allegation of invalidity of the patents in suit is based on anticipation and on not meeting the conditions for patentability over the prior art.1
The radiation burner patent will be referred to as the 294, and the gas burner patent will be referred to as the 830. They are sometimes referred to in the evidence as the "Schwank Patents."
It is undisputed that patents 294 and 830 were issued and that plaintiff American Infra-Red Radiant Co., Inc. (herein referred to as Infra-Red) is the present owner of said patents, and that Hupp Corporation (herein referred to as Hupp) is a licensee of Infra-Red with the right to file and prosecute the instant case.
In a suit for infringement of a patent, it is not a part of plaintiff's case to negative prior publication or prior use or the other matters of affirmative defense. The answer is the appropriate place to plead such, thereby assuming the affirmative. Counsel for plaintiffs and defendants have conformed to the foregoing requirement. As pointed out by Chief Justice Hughes, it has long been the law that "`* * * the grant of letters patent is prima facie evidence that the patentee is the first inventor of the device described in the letters patent and of its novelty.' * * * Hence, the burden of proving want of novelty is upon him who avers it. * * * Not only is the burden to make good this defense upon the party setting it up, but his burden is a heavy one, as it has been held that `every reasonable doubt should be resolved against him.'"2 Emphasis supplied.
Pleadings, pre-trial procedure, the transcript of trial, briefs, and oral arguments outline the issues herein, as follows:
1. Are the patents in suit valid?
2. If found by the Court to be valid, have defendants infringed them?
3. If found valid and infringed, are plaintiffs estopped by misuse of said patents?
4. Have plaintiffs violated the antitrust laws of the United States?
The trial record is voluminous and the exhibits numerous. Summarized, all of this has to do with the patent claims of 294 and 830 reproduced herewith:
Patent 294—
"I claim:
"1. A burner member, comprising a block of refractory material provided with passages therethrough for a combustible fuel mixture, said passages being substantially uniformly distributed throughout a portion of the area of said block and each having a cross sectional area of not more than about four square millimeters and a length not less than about five millimeters and each extending substantially in the same direction throughout its length from one side of the block to the outer side thereof, said passages collectively occupying not less than about 20 percent of the total radiation area at said outer side of the block, said block of refractory material having a heat-retarding medium of substantially lower thermal-conductivity than said refractory material distributed therein to reduce the thermal-conductivity of the block, the latter having a thermal-conductivity of less than 0.5 kilocal./hr. m. °C., said passages being defined by integral internal wall surfaces of said block and said heat-retarding medium being disposed adjacent to said passage-defining surfaces, said passage arrangement and dimensions and said heat-retarding medium in said block and adjacent to said internal wall surfaces of said passages being jointly operable to confine the combustion of the fuel mixture to the outer zone of said passages and to inhibit said combustion from traveling in said passages inwardly of said zone and producing a backfiring effect.
"2. A burner member, comprising a block of refractory material provided with passages therethrough for a combustible fuel mixture, said passages being substantially uniformly distributed throughout a portion of the area of said block and each having a cross sectional area of not more than about four square millimeters and a length not less than about five millimeters and each extending substantially in the same direction throughout its length from one side of the block to the outer side thereof, said passages collectively occupying not less than about 20 percent of the total radiation area at said outer side of the block, said block of refractory material having a heat-retarding medium of substantially lower thermal-conductivity than said refractory material distributed therein to reduce the thermal-conductivity of the block, the latter having a thermal-conductivity of less than 0.5 kilocal./hr. m. °C., said passages being defined by integral internal wall surfaces of said block and said heat-retarding medium being disposed adjacent to said passage-defining surfaces, said passage arrangement and dimensions and said heat-retarding medium in said block and adjacent to said internal wall surfaces of said passages being jointly operable to confine the combustion of the fuel mixture to the outer zone of said passages and to inhibit said combustion from traveling in said passages inwardly of said zone and producing a backfiring effect and a metal oxide incorporated in said refractory material to increase the heat radiation properties thereof.
"3. A burner member, comprising a block of refractory material provided with passages therethrough for a combustible fuel mixture, said passages being substantially uniformly distributed throughout a portion of the area of said block and each having a cross sectional area of not more than about four square millimeters and a length not less than about five millimeters and each extending substantially in the same direction throughout its length from one side of the block to the outer side thereof, said passages collectively occupying not less than about 20 percent of the total radiation area at said outer side of the block, said block of refractory material comprising essentially a clay material having a heat-retarding medium of substantially lower thermal-conductivity than said clay material distributed therein to reduce the thermal-conductivity of the block, said passages being defined by integral internal wall surfaces of said block and said heat-retarding medium being disposed adjacent to said passage-defining surfaces, said passage arrangement and dimensions and said heat-retarding medium in said clay material block and adjacent to said internal wall surfaces of said passages being jointly operable to confine the combustion of the fuel mixture to the outer zone of said passages and to inhibit said combustion from traveling in said passages inwardly of said zone and producing a backfiring effect.
"4. A burner member, comprising a block of refractory material provided with passages therethrough for a combustible fuel mixture, said passages being substantially uniformly distributed throughout a portion of the area of said block and each having a cross sectional area of not more than about four
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