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In the specifications Hayden refers to various known methods of protecting concrete from water evaporation during the curing period especially applicable to roads or similar constructions where the concrete is largely exposed to air. He speaks of the application of wet burlap to the exposed surface of the concrete \"immediately after finishing\" replaced with wet earth or straw, of the spreading of tar on the surface of the concrete \"* * * after the concrete has set, or attained a rigidity such as to enable workmen to walk on it without marring the surface.\" He refers also to dikes built about the surface of the concrete to maintain water upon its surface until hydration is completed. He goes on to say that these methods are open to numerous objections in that they involve substantial expense \"* * * and are ineffective in preventing the evaporation of water from the concrete during the critical period before the concrete has set, or the protection of the concrete is not attempted until substantially after the critical period has passed, as is evidenced, for example, by the occurrence of hair cracking * * *.\" Hayden then sets forth the gist of his disclosure as follows: \"I have discovered that if cement or cement concrete be treated, after it is finished, i. e., smoothed off, or broomed if so finished, and before it has set, i. e., before it will support a substantial weight, such as that of a man walking on it, without marring, by the formation on the exposed surface thereof a water impervious film, which preferably will adhere to the concrete, and the concrete be then permitted to set and cure without disturbance, the concrete will cure without hair cracking and when cured will be found to have greatly increased strength, durability and resistance to weathering as compared to concrete treated by the methods heretofore known.\" Hayden states that he applies his water impervious film to the exposed surface of the cement or cement concrete to be cured before it has set. He defines \"set\" as \"* * * a condition of firmness or rigidity such that it will support a substantial weight without marring of the surface, as for example, the weight of a man walking on it.\" The patent specifications reiterate the preferred time for applying the film, as follows, \"* * * the film is applied as soon as practical after the cement or concrete is laid and finished; however, it must be applied before the concrete has set, as indicated above, if the benefits of my invention are to be obtained.\"
In respect to the question raised by the counterclaim, viz., whether the plaintiffs have illegally extended the monopoly of the Hayden patent, we state as follows. This court in its earlier decision held the principle enunciated by the Supreme Court in Carbice Corporation v. American Patents Development Corporation, 283 U.S. 27, 51 S. Ct. 334, 75 L. Ed. 819, to be inapplicable. Leitch Manufacturing Company, one of the defendants in that suit, petitioned for certiorari, contending that Barber Company's suit could not be maintained, even if the patent were valid, because it would serve to create a limited monopoly in respect to an unpatented staple article of commerce bituminous emulsion which had been upon the market for many years. The Supreme Court granted certiorari and in Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S. Ct. 288, 82 L. Ed. 371, reversed the decree of this court, holding that the principle of the Carbice Corporation case was precisely applicable. Prior to this decision Barber Asphalt Company, which, as we have already indicated was the predecessor to the plaintiff Barber Asphalt Corporation, was the owner of the Hayden patent and issued licenses thereunder. After the decision of the Supreme Court, the successor corporation, the plaintiff Barber Asphalt Corporation, adopted the following method of doing business. It gave an exclusive license to the plaintiff Johnson-March Corporation to practice the method of the patent and to issue sub-licenses to others upon payment \"* * * of a monetary license fee or royalty to it [Johnson-March] on account of the use of said invention.\" Barber Asphalt Corporation by this exclusive license divested itself of all rights in the Hayden patent except bare legal title. Johnson-March agreed to pay Barber Asphalt Corporation a royalty of 2 cents per gallon for all bituminous emulsion bought by it from Barber and used pursuant to the patented process. Johnson-March Corporation then entered into a contract of agency with Thompson Materials Corporation. By this agreement Johnson-March granted to Thompson the exclusive right to sell \"`Hunt Process'\", \"`Curcrete'\" and \"`Ritecure'\", all bituminous emulsions, to be used on highways, pavements and structures according to the method of the Hayden patent to licensees of Johnson-March within specified territory. This license by its terms remained in full force until December 31, 1938 with renewal at the option of Thompson for one year provided Thompson demonstrated that it had sold fifty per centum of all available curing contracts let by the state highway departments of the respective states in the preceding year. Thompson in turn entered into sales agreements with contractors whereby it agreed to furnish and the contractors agreed to accept and pay for Hunt Process and Ritecure in sufficient quantities to cure specified yardages at a stated price per gallon, the sales agreements specifically stating, however, that the price per gallon fixed included all royalties due on account of the curing of concrete under the license of the Hayden patent, Thompson agreeing to remit the royalties to Johnson-March Corporation and to save the contractors harmless on account of any claim of infringement. The sales agreements recite that the contractors are licensed by the Johnson-March Corporation under the Hayden patent in consideration of the payment to Johnson-March of a royalty of 1 cent per square yard of concrete covered.
An examination of the record will disclose immediately that the amount of bituminous emulsions used for curing varies widely with certain indefinite factors, such as the skill of the operator, the intent to spread the emulsion thickly or thinly, the temperature and the humidity. The record abundantly demonstrates that while some estimates provide for the spread of emulsion at the rate of one gallon for every five to eight yards, the spread may be from eight to ten yards and upon occasion may reach twenty yards per gallon. If a contractor has purchased Barber Corporation emulsions vended through the channel of Johnson-March and Thompson, any royalty that he pays for the use of the Hayden process is included in the price per gallon. If, upon the other hand, he purchases emulsions elsewhere and uses the Hayden process the royalty which he must pay is based upon the number of square yards covered in the process and the contractor is faced with an elusive and indefinite factor in estimating his costs when he bids upon a job. An example will illustrate the difficulty which the contractor faces. We will assume that the intervenor, Stulz-Sickles Company, sells bituminous emulsions to a contractor who causes a gallon of it to be sprayed over five square yards of concrete. The record shows that Stulz-Sickles sold such emulsions at a price of 15 cents per gallon. It follows that the cost to the contractor to buy the gallon of emulsion and to spray it on the concrete is 20 cents. If the gallon of emulsion is sprayed over fifteen yards of concrete, the cost to the contractor would be 30 cents. If that contractor buys Barber Asphalt Corporation's emulsions sold through the Johnson-March Thompson channel for the price of 24 cents a gallon with license included, he may spread the emulsion as widely as he can without additional cost; in fact, the less emulsion he uses, the lower the cost to him. On the other hand, if the contractor did not buy Johnson-March Thompson emulsions, the more emulsion which he uses per square yard, the smaller the license fee which he must pay. If the spread is wide, the cost of the license to the contractor is proportionately high. The contractor who does not purchase his emulsions through the Johnson-March Thompson middleman channel is faced with the economic anomaly that upon spreading his emulsions sparingly his cost is increased; thickly, the cost is reduced. The plaintiffs have made the economic stream run up-hill.
In connection with this situation the learned District Judge stated [30 F. Supp. 497, 505], \"The court concedes that the transition of royalty calculation from a per gallon basis to a square yard basis is mysterious and unexplained. But suspicion is not sufficient to establish the monopolistic practice claimed by the counterclaimants.\" We do not regard the circumstances with mere suspicion. We regard them with the certainty that the so-called alternate license offered by Johnson-March is and was an illegal device entered into for the purpose of avoiding the prohibition enunciated by the Supreme Court in Leitch Mfg. Co. v. Barber Company. This is made all the more palpable by an examination of the first paragraph of the sales agreement offered by Thompson, in which it is recited that the contractor is licensed by Johnson-March under the Hayden patent in consideration of the payment to Johnson-March of a royalty of 1 cent per yard on the basis of engineer's estimate. These words are included in that very sales agreement wherein it is expressly provided that the price fixed per gallon shall include \"* * * all royalty which shall be due on account of the curing of the said concrete under the *216 said license * * *\", Thompson agreeing to save the contractor harmless from any claim of Johnson-March made on account of royalty. It is obvious that Thompson can no more transmute royalty per gallon into royalty per square yard, or royalty per square yard into royalty per gallon, than can the plaintiffs' competitors or any one else. He who buys emulsion without buying a license to spread included in that purchase is therefore at a tremendous economic disadvantage. The principle enunciated by the Supreme Court in Carbice Corp. v. American Patents Development Corp., supra, is exceedingly explicit. It holds that the owner of a patent for process may not secure a partial monopoly on the unpatented material employed in it. This is precisely the effect of the agreements and licensing plans of the plaintiffs. Accordingly the court below erred in holding that the course pursued by the plaintiffs did not create an unlawful monopoly in the sale of unpatented staple material, viz., bituminous emulsions. 59ce067264