
    FOWLER & WOLFE MFG. CO. v. NATIONAL RADIATOR CO.
    (Circuit Court, W. D. Pennsylvania.
    January 10, 1905.)
    No. 25.
    Patents (§ 328*) — Infringement—Radiator.
    . The Fowler patent, No. 609,800, for a radiator, held not infringed by a licensee, on the ground that the alleged infringing device, while within the patent, also came within the purview of the license.
    In Equity. Suit by the Fowler & Wolfe Manufacturing Company gainst the National Radiator Company. Decree for defendant.
    See, also, 203 Fed. 514.
    Ernest Howard Hunter, of Philadelphia, Pa., for complainant.
    Harding & Harding, of Philadelphia, Pa., for defendant.
   BUFFINGTON, District Judge.

By a decree in the former suit between these parties the validity of the patents here involved was established. As between them they are not here open to question. The respondent then took a license under them. By that license the respondent, inter alia, was empowered to continue the manufacture of the radiator it had theretofore been making, and stipulated to pay a license fee therefor. The respondent has beguq the manufacture of a type of radiator which it claims is not covered by said license, does not infringe the patent, and is not of the particular form which by the exception in the license it was restricted from manufacturing.

After due consideration, we have reached the conclusion that the radiator here complained of is in substance and effect the one which formed the subject-matter of the original suit, and that its differences from that type are simply those of detail and form. In substance the two are the same, and in our judgment both alike come within the purview of the license agreement. Such being the case, it follows the charge of infringement cannot be sustained, by reason of the fact that the respondent is protected by its license right to manufacture the radiator complained of.  