UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
August 5, 1959
BALDWIN-LIMA-HAMILTON CORPORATION AND EDWARD E. SIMMONS, JR.
TATNALL MEASURING SYSTEMS COMPANY AND THE BUDD COMPANY.
SUR PETITION FOR REHEARING
Opinion of the Court
Per Curiam: The petition for rehearing, if anything, makes it clearer than ever that 1. the test body is not an element of the patent which is for a gage per se, and 2. that appellant Baldwin-Lima-Hamilton Corporation illegally limited the use of the Simmons gage by refusing to sell it by itself to prospective customers who wished to use it with strain sensitive apparatus of a type manufactured by appellant Baldwin-Lima-Hamilton Corporation and its licensees.
The petition for rehearing will be denied.
BIGGS, Chief Judge, dissenting: The court has extended greatly the patent misuse principle. This extension, applied full force, could prohibit a patentee from employing his invention as a component even in an apparatus of his own manufacture.
I conclude that the test body is a material element in the claimed invention, as the court below first held, and that Section 271, Title 35, U.S.C., may be applicable.
The issues involved are of such farreaching importance as to render desirable rehearing before the court en banc .
For these reasons I must dissent from the order denying rehearing.
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