The opinion
SANBORN, Circuit Judge
(dissenting). For the following reasons I am unable to.concur in the result in this case: The end sought *315 by the use of the infringing device was the roasting of zinc blende by a mechanically rabbled furnace. The measure of complainants^ right of recovery was the pecuniary advantage the defendant derived from the use of Brown’s invention above that which the defendant would have derived from the use during the infringement of any other known machine open to the public that was not experimentally, - but was actually in use and was effective to roast zinc blende by a mechanically rabbled furnace. Walker on Patents, §§ 724, 734; the authorities cited in the opinion of the majority; Mowry v. Whitney, 14 Wall. 651 , 20 L. Ed. 860 ; Knox v. Great Western Quick Silver Mining Co., 14 Fed. Cas. 809 , 812 (No. 7,907). The evidence in the case has convinced me that, while mechanically rabbled furnaces without Brown’s improvement had been used to roast copper ore, none of them at the time of the infringement had been used successfully to roast zinc blende, a process which required a higher degree of heat, and that the hand-rabbled furnaces were the only ones then known that were open to the public and effective to accomplish this purpose by the use of the rabbles. This view of the evidence has forced my mind to the conclusion that there is an error in the accounting because the master did not take the hand-rabbled furnaces which the defendant was itself using by the side of the infringing furnaces as the standard of comparison.
Moreover, the evidence seems to me to prove that the entire efficiency of the mechanically rabbled furnaces during the infringement was the product of Brown’s invention, that without that invention they would have been inefficient and less useful than the hand-rabbled furnaces, would have been discarded, and the hand-rabbled furnaces would have been installed in their places. My conviction that the evidence establishes this fact has led my mind to the conclusion that the accounting in this case should have been governed, not by the rule applicable to slight improvements in machines which were operative and efficient to accomplish the desired result before as well as after the improvement, as in Garretson v. Clark, 111 U. S. 120 , 4 Sup. Ct. 291, 28 L. Ed. 371 ; Keystone Manufacturing Co. v. Adams, 151 U. S. 139 , 14 Sup. Ct. 295, 38 L. Ed. 103 ; Seymour v. McCormick, 16 How. 480 , 14 L. Ed. 1024 ; Robertson v. Blake, 94 U. S. 728 , 24 L. Ed. 245 , and cases of that character, but by the rule that, where the complainant’s patent, secures a new combination or a new machine which accomplishes a result never attained before it was invented, the entire profits derived from the infringing device are recoverable and the defendant holds them as a trustee de son tort for the patentee or his assigns, and the burden is on the defendant to account for them as in Crosby Steam Valve Co. v. Safety Valve Co., 141 U. S. 441, 448, 449, 454 , 12 Sup. Ct. 49, 35 L. Ed. 809 ; Brennan & Co. v. Dowagiac Mfg. Co., 162 Fed. 472, 475 , 89 C. C. A. 392 , 395; Dowagiac Mfg. Co. v. Superior Drill Co., 162 Fed. 479, 481 , 89 C. C. A. 399 ; Elizabeth v. Pavement Company, 97 U. S. 126 , 24 L. Ed. 1000 ; Manufacturing Co. v. Cowing, 105 U. S. 253 , 26 L. Ed. 987 ; Hurlbut v. Schillinger, 130 U. S. 456 , 9 Sup. Ct. 584, 32 L. Ed. 1011 ; Warren v. Keep, 155 U. S. 265 , 15 Sup. Ct. 83, 39 L. Ed. 144 ; Ruggles v. Eddy, 20 Fed. Cas. 1316 (No. 12,116); Zane v. Peck (C. C.) 13 Fed. 475 ; Fifield v. *316 Whittemore (C. C.) 33 Fed. 835 ; Creamer v. Bowers (C. C.) 35 Fed. 206 ; Orr & Lockett Hdwe. Co. v. Murray, 163 Fed. 54, 56 , 89 C. C. A. 492 . The view of the law applicable to cases of accounting for infringement and some of the authorities may be found in my dissenting opinion in Westinghouse Elec. & Mfg. Co. v. Wagner Elec. & Mfg. Co., 173 Fed. 373 -378, 97 C. C. A. 621 .