The opinion
*393 COLLINS, Judge
(concurring only in the result):
I agree that plaintiffs are not entitled to recover, but I cannot agree with those portions of the opinion of the court which conclude that the United States has been granted a license under the patent in suit and that it is unnecessary for the court to reach the issue of patent validity.
The license issue is difficult to resolve in favor of defendant. The Navy contract (No. N6ori-77) and Task Order I, quoted in the court’s opinion, call for research “using a human centrifuge” on the physiological, biochemical, and anatomical effects of acceleration on the body in high-speed aircraft. These effects to be studied are specifically directed to blood circulation incident to high acceleration. Such research was not intended to relate to the development of skull protection against crash . impacts and sudden decelerations. It was found that the research centrifuge was not used for testing crash helmets. It was also found that private funds from the Aircraft Industries Association were used to start the project of developing a crash helmet in the spring of 1946. The Lombard and Roth application for a patent was filed in 1947. In 1948, the Director of the Office of Naval Research wrote that funds for the development of head protective gear were not available. The “recognition” from 1949 to 1951 that research work on head impact “as carried on from 1948” was under a contract does not warrant a conclusion that the inventors’ work on crash helmets in 1946 and 1947 was, therefore, under the Navy research contract. There is no evidence that defendant obtained an actual license under the patent in suit, and a conclusion that there was an implied license is believed to be hindsight.
It is also my conclusion that the court should resolve rather than bypass the patent validity issue raised by the pleadings and supported by findings. Trial on the merits related to a considerable extent to the presentation of evidence that the Lombard and Roth patent in suit
is invalid over prior art. The findings accompanying the court’s opinion include many relating to the several patent claims in suit and to the prior United States and foreign patents and publications. It is believed that it is in the public interest and also in the interest of the party asserting invalidity, at considerable trial expense, to have a ruling upon this issue. Since the findings reported to this court state that the patent claims relied on in the patent in suit are invalid over the prior art, I would dismiss plaintiffs’ petition upon this ground rather than upon a questionable license theory.