gypsum argued decided march rehearing denied april appeal district district columbia gypsum roscoe steffen new appellant bruce bromley new york city appellees justice reed delivered opinion instituted suit august district district columbia gypsum pany five corporate defendants seven individual defendants civil proceeding sherman act complaint charged appellees violated sherman act conspiring fix prices patented gypsum board unpatented gypsum products standardize gypsum board method production purpose eliminating competition regulate distribution gypsum board eliminating jobbers fixing resale prices manufacturing distributors attorney general filed expediting certificate december september constituted hear case amendment complaint government charged article claims five patents owned gypsum invalid void appellees moved strike amendment complaint alternative partial judgment dismissing amendment november granted appellees motion partial judgment ground government standing attack validity patents antitrust proceeding case thereupon went trial upon conclusion government case april appellees moved dismiss complaint rule federal rules civil procedure following section upon ground facts law government shown right relief june filed opinion holding motion granted august filed findings fact conclusions law entered judgment dismissing complaint government appealed directly stat probable jurisdiction noted december decisions reported gypsum supp line material value reader considering opinion appellees engaged production gypsum manufacture gypsum products including gypsum plasterboard gypsum lath gypsum wallboard gypsum plaster time alleged conspiracy appellees sold nearly first three products marketed east rocky mountains substantial portion plaster sold area gypsum products widely used construction industry sales value gypsum products approximately accounted gypsum board plasterboard lath wallboard gypsum plaster remainder gypsum block tile products plaster used building construction made gypsum gypsum found numerous deposits throughout country gypsum board made taking crushed calcined mineral adding water spreading gypsum slurry two paper liners gypsum hardens mineral adheres paper resulting product used construction plasterboard lath rough surface used wall ceiling base plaster wallboard finished surface require addition plaster since organization gypsum dominant concern gypsum industry sold gypsum board eastern area development purchase acquired significant patents covering manufacture gypsum board beginning gypsum offered licenses patents cerns industry licenses containing provision gypsum fix minimum price licensee sold gypsum products embodying patents since gypsum fixed prices defendants sold gypsum board corporate appellees national gypsum products celotex ebsary gypsum newark plaster appellee gloyd owner unincorporated business trading name texas cement plaster national produced gypsum board sold eastern area four companies correspondingly smaller amounts seven companies active licensing plan evolved acquired companies defendant celotex entered industry licensing plan fully effect acquiring assets licenses american gypsum company seven individual defendants presidents corporate defendants tabulation margin lists corporate individual defendants shows corporate changes taken place prior gypsum board manufactured open edge leaving gypsum core exposed four sides gypsum received assignee patent issued one utzman covering process product claims board closed side edges lower paper liner folded exposed gypsum core edge board superior quality board cheaper produce break easily shipment less subject crumbling edges nailed place gypsum also acquired see date sales entered board name firm gypsum eastern individual companies board area defendants acquired industry gypsum sewell avery president niagara chairmwn board gypsum board date oliver knode president date national gypsum melvin baker universal gypsum president lime atlantic gypsum products products henry hartley beaver products president beaver board newark plaster frederick tomkins kelley plasterboard president ebsary gypsum frederick president celotex american gypsum texas cement plaster samuel gloyd unincorporated owner number patents relating process making board gypsum sued competitor claiming infringement utzman patent circuit appeals affirmed judgment holding utzman patent valid infringed gypsum settled infringer beaver products granting beaver license practice board patent provision gypsum fix price beaver sold patented board shortly settlement beaver gypsum instituted suits american gypsum universal gypsum lime gave notice infringement niagara gypsum universal contest suit accepted license price fixing provisions two small companies followed suit american niagara settle judgment entered american holding american partially board infringed one gypsum patents gypsum also instituted suits infringement national gypsum settled execution license payment damages part settlement defendants year two sets license agreements signed gypsum licensed two companies manufacturing gypsum board substantially identical terms date gypsum maintained rigid control price terms sale virtually gypsum board since control complete point dispute facts government charged defendants acted concert entering licensing agreements gypsum granted licenses defendants accepted licenses knowledge concerns industry accept similar licenses result concert action competition eliminated fixing price patented board eliminating production unpatented board regulating distribution patented board support allegations government introduced evidence license agreements documentary exhibits consisting letters memoranda written officers corporate defedndants examined witnesses officers corporate defendants since appellees motion dismiss government finished case sustained appellees introduced evidence government witnesses documentary exhibits present full picture circumstances surrounding negotiation patent license agreements chiefly relied government prove case although network patent licenses achieved government claims documentary exhibits show process formulation plan began december augustus blagden president beaver sent memorandum sewell avery president gypsum beaver adjudged infringer utzman patent blagden avery negotiated terms settling suit blagden testified avery offered settle beaver granting beaver license fixing limitation provision beaver pay damages past infringement acknowledge validity gypsum patents memorandum blagden analyzed detail consequences flow five possible decisions circuit appeals decree adjudging beaver infringer appealed blagden noted whether upheld denied gypsum claim gypsum lose perhaps irrevocably present opportunity organize industry stabilize prices memorandum pointed suit settled terms offered avery result favorable gypsum possible decision appeals beaver accept license agree use best endeavors induce manufacturers accept similar licenses beaver successful persuading manufacturers execute licenses gypsum lawful price control avoid necessity deduction plaintiff gypsum current prices meet competition circumstances gypsum able take dominating position industry opportunity control least participate control prices legitimate means patent licenses although proof avery approved blagden memorandum blagden accept license terms offered avery july blagden testified talked number representatives companies urged accept licenses gypsum frank griswold general manager american gypsum company also active promoting scheme industrywide licensing may griswold wrote letter president american stating talked blagden added matter discussed independent wallboard manufacturers meeting chicago next wednesday afternoon griswold concluded letter statement plans figure possibility us holding price steady wallboard next fourteen fifteen years means much industry blagden griswold succeed persuading manufacturers accept licenses universal accepted license september evidence blagden griswold played part negotiating settlement griswold suggested avery gypsum offer shorter term license avery unwilling make concession griswold blagden continued negotiations griswold samuel gloyd owner texas cement plaster corresponded regard licensing proposal griswold informed gloyd atlantic gypsum signed license gypsum gloyd replied apply license right away previously gloyd trying secure shorter term license gloyd atlantic signed licenses similar original license granted beaver january products purchased assets beaver previously making board selling lower prices board manufactured gypsum licensees refused accept license agreement beaver gypsum filed suit compel accept license posted million dollar bond commenced make board beaver plants george brown president avery several conferences attempted compose differences without result government introduced evidence memorandum written brown dated march brown expressed confidence make edge board sell competition gypsum afraid sign license provisions competitors grant secret rebates brown concluded answer suit gypsum enforce beaver license claiming suit filed interest royalties sole purpose trade domination monopoly price control brown concluded statement gypsum gather monopoly possible leads risk everything domination big rewards possible succeed file answer suit couched terms griswold testified conversation brown following month brown stated might possibly consider taking license manufacturers certain ones took license griswold also wrote president american conference brown brown said willing time enter license agreement without particular changes providing manufacturers including ebsary enter make one hundred per cent settlement reached gypsum teed license agreements signed meeting representatives principal manufacturers took place october november board directors national adopted resolution authorizing officials company enter license agreement besides national american ebsary niagara kelley plasterboard company manufactured gypsum board hold licenses gypsum patent licenses force beginning provided gypsum fix prices term principal utzman patent scheduled expire august although remaining features agreements remain force expiration last patent included license negotiations various defendants expressed concern possibility effective plan price fixing view imminent expiration utzman patent letter dated january haggerty president national wrote eugene holland president universal asking views possibility continuing price control expiration utzman patent holland reply wrote follows remember avery made clear us plan worked utzman patent patents available agreed fact utzman patent expires next august practical reason continuing conflict holland also stated quite sure avery interested negotiating settlements unless everyone involved included point fact holland interpretation avery views incorrect several months later licenses granted four unlicensed manufacturers american kelley exhibits suggest prospective licensees interested accepting licenses time letter january haggerty wrote follows question mind whether four board makers outside license agreement feel advantageous go without american gypsm company seem chief value meeting discuss point may board directors national held meeting purpose discussing license ment submitted manufacturers gypsum products east rocky mountains gypsum minutes meeting quoted chairman saying definitely informed manufacturers gypsum products east rocky mountains except american gypsum company agreed sign license contract substantially form submitted board board directors authorized execution proposed license contract two days later national signed license agreement following day national sent telegram avery follows contract signed mail reeb niagara ready stop working ebsary hope everybody set saturday justify calling meeting board makers monday like may avery dispatched identical telegrams gypsum licensees ebsary follows kling american sent contract material changes declares attend meeting unless changes accepted us stop accept regret tuesday meeting futile unless companies wish proceed outlined without american license may avery wrote gloyd texas cement plaster licensee since stating although american unwilling accept license officers niagara ebsary national expressed favorably adjustment improbable matter may closed meeting tomorrow soon thereafter following day meeting representatives one licensed manufacturers unlicensed manufacturers except american kelley took place chicago three unlicensed manufacturers ebsary license agreements meeting avery explained licensees gypsum acquired applications patent covering board suggested licensees take licenses applications applications covered process making gypsum board introducing soap foam gypsum slurry result lighter cheaper board avery subsequently mailed proposed license agreements board applications licensees george brown june acknowledged receipt license proposal noncommittal reply composed memorandum files commented savings resulting taking license doubtful added price control business might advantage might disadvantage future anxious us use get benefits anticipate stabilizing whole industry making uniform product get away fierce warfares different products like recently saving slight cause us great worry even never permitted use door certainly open later use merit believe contract sufficiently liberal proceed june licensees met chicago discuss question accepting license board patents shortly thereafter agreed take license national also agreed accept license minutes meeting board directors july read part follows president stated gypsum company bee working plan stabilize gypsum industry offered license entire industry new method manufacturing gypsum wallboard known system license agreements submitted wallboard manufacturers contain price fixing clauses agreements submitted prices wallboard fixed whole industry term approximately seventeen years board passed resolution authorizing executive committee negotiate license agreement gypsum company virtue agreement corporation manufacturers gypsum wallboard shall control price wallboard sold possessions two days later another conference licensees held chicago brown prepared memorandum george brown president describing happened meeting according memorandum national universal unwilling accept board licenses settled litigation national infringement universal starch patent patent included process product claims wallboard made starch brown noted gypsum working proposal combine starch board processes although combination technological advantages brown commented fact starch patent already issued combination two systems give patent work manufacture sale gypsum wallboard immediately whereas bubble process interim august date issuance bubble patent patent control course considerable benefit patent control continue without break brown noted avery trying work proposition holland buy starch patent license industry processes another meeting licensees held chicago august day utzman patent expired memorandum summarizing happened meeting brown said agreed universal assign starch patent gypsum latter company issue single license contract covering patents patent applications brown reported independent gypsum companies willing sign basis attorneys feel contract exceptionally strong price control maintained life contract without difficulty august board directors national held meeting president authorized sign license gypsum covering board starch patents present licensees gypsum company enter similar license provided judgment president action result legal stabilization markets soon thereafter national ebsary niagara atlantic executed licenses gypsum become effective date universal receiver transferred starch patents gypsum november starch patents assigned gypsum date universal also accepted license november american settled litigation gypsum accepted license manufacturers gypsum board licensed gypsum except kelley plasterboard concern executed license april following year texas cement plaster licensee utzman patent accept license starch board patents original license expired texas thus free sell board price contracts became effective november substantially identical terms license universal contained preferential royalty terms granted consideration transfer starch patents every license except texas provided licensor subsequently grant favorable terms licensee except universal favorable terms granted first licensee licensee agreed pay royalty stipulated percentage selling price plasterboard gypsum wallboard every kind whether made patented processes embodying product claims contract covered fifty patents seven patent applications including starch patent board applications contract run junior patent expired two board patents issued licenses ran licensees agreed sell patented wallboard manufacturing distributors unless gypsum gave consent prospective purchaser previous contracts gypsum reserved right fix minimum price licensee sold wallboard embodying licensor patents licensor agreeing minimum price greater price licensor offered sell important provisions license litigation set forth appendix opinion nothing omitted appears significant issues considered gypsum offered supplemental licenses practice patent covering metallized board accepted almost licensees gypsum offered licenses perforated lath patent also accepted licensees supplemental licenses contained provisions allowing gypsum fix minimum price board made according patents licensed government charged execution license agreements may november marked turning point gypsum industry government introduced evidence tending show price first quality wallboard raised gypsum standardized type board sold requiring licensees sell wallboard seconds price standard wallboard standardized methods sale licensee offer favorable terms customer licensee although license contracts gave licensor right fix minimum price licensee sell gypsum issued series bulletins defined minute detail prices terms sale patented gypsum board printed nearly thousand pages record bulletins adopted basing point system pricing according licensee required quote price determined taking mill price nearest basing point adding rail freight basing point destination freight computed specified uniform billing weights order prevent variations freight arising differences weight board made different manufacturers licensee directed charge exactly switching cartage extra delivery charges specified board sizes minimum quantities prescribed licensees forbidden employ commission salesmen without written consent licensor regulations prescribed size quantity markings gypsum board used packing shipments granting long term credit prohibited sales consignment enjoined licensees forbidden deliver board directly building site practicable quote one hundreds comprehensive bulletins prices terms industry ace pted directions distribution product corollary price control prices infringed variations seller contracts detail directives well illustrated directive computation freight added mill price provision subtle price reduction excerpts board license bulletin june order insure compliance price bulletins gypsum established wholly owned subsidiary named board survey licensees invited send complaints violations pricing bulletins board survey organization forwarded complaints alleged delinquent licensees board survey authorized make thorough reported violations take action might deem necessary proper protect gypsum rights license agreements patents although record discloses instance board survey took even threatened take legal action licensee many instances board survey sent letters licensees requesting explanation alleged violations meetings licensees held doubtful provisions price bulletins explained trial found main licensees complied bulletin conditions government charged defendants discontinued production unpatented board eliminated jobbers requiring jobbers purchase board price board sold dealers induced manufacturing distributors observe bulletin prices upon resale board purchased licensees stabilized price gypsum plaster unpatented products undisputed defendants ceased manufacture board government claims production unpatented board discontinued order protect patented board competition prior board sold lower prices board government exhibits show officers corporate defendants realized effective stabilization prices board long board sold without price control license agreements provided royalties paid sales board sold patented unpatented provision tend discourage production higher cost unpatented board although government produced evidence agreement defendants eliminate production board corporate officers licensees testified anticipated one result licensing elimination edge board may licenses required licensees obtain consent licensor selling board manufacturing distributors jobbers price bulletin issued licenses allowed licensees grant discount classes november licenses however eliminated consent requirement respect jobbers although retained respect manufacturing distributors jobbers discount continued bulletins issued later licenses august gypsum ordered discount eliminated although jobbers still buy board desired jobbers remain business selling dealers advance bulletin prices found jobbers able remain business selling board odd lots dealers wish buy minimum lot required price bulletins government points definition license agreements manufacture buy sell plasterboard gypsum wallboard straight cars mixed cars building material sell retail points uncontradicted testimony jobbers defined eliminated stop set forth evidence upon government relied support charge defendants fixed prices manufacturing distributors sold gypsum board purchased gypsum licensees issue necessary decision case support charge stabilizing price unpatented plaster government cited letters written officers corporate defendants showing anticipated price stabilization patented board accompanied stabilization gypsum products trial found price plaster miscellaneous gypsum products fact increase government charged plaster prices stabilized requiring licensees sold plaster together patented board sell plaster prevailing prices board plaster usually sold together defendants claim cutting prices plaster sales two together operated effect rebate price board hence legally subject control government introduced evidence large number complaints board survey licensees competitors failure maintain prevailing prices plaster bulletin provision forbidding rebates allowances stated sale board posted prices violation license licensee reduced price products board survey summarizing violations bulletin terms revealed audit licensees books listed concessions material connection board sales ii appellees admit absence whatever protection afforded valid patents licensing arrangements described violation sherman act accordingly government sought amend complaint allege board patents valid trial held government estopped attack validity patents present proceeding ground attack constitute review action commissioner patents authorized trial thought issue controlled american bell telephone held without standing bring suit equity cancel patent ground invalidity issue need decided dispose case seems inadvisable leave decision precedent hurn oursler ree conclusion trial claim patents invalid employed violation sherman act decree issue canceling patents rather government charges defendants violated sherman act granted licenses patents fact invalid government succeed showing patents fact invalid finding result judgment cancellation patents antitrust suit instituted licensee licensor repeatedly held licensee may attack validity patent licensed public interest free competition even though licensee agreed license sola electric jefferson electric edward katzinger chicago metallic mfg macgregor westinghouse electric manufacturing suit vindicate public interest enjoining violations sherman act opportunity show asserted shield patentability exist course appeal must considered record assumes validity patents involved iii trial ruled motion dismiss pursuant rule weigh evidence grant motion government failed establish case preponderance evidence ruled government burden proving charge conspiracy charge licensing agreements within protection patent grant stop consider rulings importance case think preponderance evidence conclusion government case indicated violation sherman act unable accept however ruling declarations defendant admissible defendant making declaration consideration point really involves heart case since treatment declarations may vitally affect outcome may doubts whether agreements bulletins alone sufficient establish conspiracy admission separate declarations greatly strengthens government position think license agreements entered knowledge part licensor licensees adherence others control prices methods distribution agreements bulletins sufficient establish prima facie case conspiracy licensee shown uncontradicted references meetings discussion preliminary execution licenses failed aware intention gypsum licensees make arrangements licenses industry wide license agreements face showed purpose licensor fix minimum prices binding licensees royalty measured percentage value gypsum products patented unpatented license transferred without licensor consent licensee opened books accounts licensor licensee protected competition favorable licenses cancellation clause failure live arrangements see appendix furthermore bulletins gave directions industry prices methods operation unmistakable terms district di accept foregoing facts definite evidence conspiracy us facts proof conspiracy certainly overwhelming evidence plan licensor licensees fix prices regulate operations gypsum board industry district thought plan evidenced license agreements bulletins illegal sherman act might different conclusion question admissibility declarations appellees position stemmed logically understanding general electric opinions line material whatever may different views expressed make clear district interpretation general electric differs interpretation rule general electric district required balance privileges gypsum licensees patent grants prohibitions sherman act combinations attempts monopolize conspiracies control prices distribution believe beyond patent privilege view general electric case district concluded lack good faith defendants execution considered legitimate exploitation patents justify case determination adverse defendants trial held association defendants common plan organize gypsum industry stabilize prices network patent licenses legally permissible event government failed prove defendants associated plan trial found license agreements entered good faith reliance upon general electric supra bement sons national harrow intended bind parties promises made explicit terms licenses within scope patent grant government failed prove agreement among defendants take actions outside scope patent grant specifically trial found agreement among defendants raise price board arbitrary levels standardize production board pricing board seconds market eliminate production board eliminate jobbers control resale price board sold manufacturing distributors stabilize price unpatented gypsum products held charges except last two defendants acting within scope patent grant even agreed things charged conclude regardless motive sherman act bars patent exploitation kind attempted license agreements bulletins establish conspiracy licensor licensee violate sherman act conspiracy thus fully established declarations acts various members even though made done prior adherence conspiracy become admissible declarations acts aid conspiracy think declarations acts set forth opinion aid ultimate conspiracy attempt fix date conspiracy first formed least declarations quoted made purpose advancing plan ultimately eventuated licenses iv turn different phase correctness findings trial made findings fact accurate bar reversal order finding trial found evidence establish defendants associated plan blanket industry patent licenses stabilize prices opinion indicates making finding trial assumed arguendo declarations one defendant admissible page examining finding follow interstate circuit masonite quantum proof required government establish claim defendants conspired achieve certain ends cases separate identical agreements executed one party number parties interstate circuit concluded proof express understanding party sign agreements unlawful conspiracy held sufficient defendants engaged concert action within meaning sherman act enter agreements masonite trial found defendants acted concert finding reversed one things two cases establish principle group competitors enters series separate similar agreements competitors others strong inference arises agreements result concerted action inference strengthened contemporaneous declarations indicate supposedly separate actions part common plan far finding subsidiary findings based district belief general electric rule justified arrangements misapplication masonite interstate circuit errors law occurred course correct far finding others shall refer inferences drawn documents undisputed facts heretofore described set rule rules civil procedure applicable rule prescribes findings fact actions tried without jury set aside unless clearly erroneous due regard shall given opportunity trial judge credibility witnesses intended actions tried upon facts without jury mae applicable prevailing equity practice since judicial review findings trial courts statutory constitutional limitations findings administrative may reverse findings fact trial erroneous practice equity prior present rules civil procedure findings trial dependent upon oral testimony candor credibility witnesses best judged great weight appellate findings never conclusive however finding erroneous although evidence support reviewing entire evidence left definite firm conviction mistake committed government relied largely documentary exhibits called witnesses many authors documents direct counsel permitted phrase questions extremely leading form import witnesses testimony conflicting witnesses denied acted concert securing patent licenses agreed things fact done testimony conflict contemporaneous documents give little weight particularly crucial issues involve mixed questions law fact despite opportunity trial appraise credibility witnesses circumstances case rule otherwise finding clearly erroneous findings trial made findings adverse government claim defendants conspired eliminate production board tenor findings agreement among licensees discontinue production board although trial conceded might licensee expect continue manufacture board provision license contracts royalties paid production unpatented board strongly indicative agreement manufacture unpatented board testimony witnesses ample show understanding formal agreement patented board sold arrangement purpose effect increased area patent monopoly invalid findings trial considered problem jobbers findings state effect license agreements executed intent eliminating jobbers discontinuance jobbers discount exercise gypsum right establish price patented product complaints licensees licensees sold jobbers discount establish concerted action eliminate jobbers unable agree holdings since defendants entered common scheme stabilize industry since elimination jobbers undertaken sum furtherance purpose finding specific intent licensee necessary agree elimination jobbers falls within protection patent grant purpose prevent competition uncontrolled resale prices inference draw uncontradicted evidence defendants acted concert eliminate important class jobbers findings trial dealt government charge defendants stabilized price unpatented gypsum products ings hold understanding agreement prices raised fixed upon plaster unpatented product bulletin provision prohibiting reduction price unpatented products designed protect price patented board used stabilize price unpatented materials reject findings clearly erroneous bulletin provision complaints licensees addressed board survey convince us defendants attempted stabilize plaster prices fact plaster prices stabilized plaster sold conjunction board appears us immaterial trial made many findings government objected yet determine whether erroneous unnecessary perhaps looked isolation government charges proven fullness justify reversal finding district point may light opinion district conclude many findings longer significant reaching decision others different result required enough said findings evidence think enable district pass upon facts may come proceedings accord present ruling foregoing discussion foreshadows conclusion said iii invalidity arrangements tested sherman act cussing admissibility declarations acts separate defendants others applicable licenses bulletins show plainly conspiracy violate sherman act price fixing type offends well settled price fixing without authorizing statutes illegal per se see note line material patents grant privilege owners organizing use patents monopolize industry price control royalties patents drawn industry products regulation distribution patents put uses collide sherman act protection public evil consequences national lead standard oil indiana standard sanitary mfg defendants undertake control prices distribution gypsum board utilize agency board survey make control effective fashion originators guild federal trade commission facts together indicia intent monopolize gypsum board industry hereinbefore detaile agreements bulletins declarations convinces us defendants violated sherman act general electric case affords cloak course conduct revealed voluminous record case case gives support patentee acting concert members industry issue substantially identical licenses members industry terms industry completely regimented production competitive unpatented products suppressed class distributors squeezed prices unpatented products stabilized apply reason standard oil new jersey efforts monopolize patents well patent fields even absence specific abuses case fall within traditional prohibitions sherman act sufficient show defendants constituting former competitors entire industry acted concert restrain commerce entire industry patent licenses order organize industry stabilize prices conclusion follows despite assumed legality separate patent license familiar doctrine lawful acts may become unlawful taken concert concerted action effective deterrent competition said masonite page page power masonite fix price product manufactures entire group sells respect actual potential competitors powerful inducement abandon competition active vigorous competition tend impaired preference public patented product preference competitors mutual arrangement promises profit parties abandon rather maintain competition rewards flow patentee licensees suppression competition regulation industry reasonably normally adapted secure pecuniary reward patentee monopoly record presented violation sherman act clear order dismissal came end government presentation appellee motion dismiss rule federal rules civil procedure order reversed case remanded proceedings conformity opinion reversed remanded justice jackson took part consideration decision case justice frankfurter concurring part ii opinion confessedly deals issue decided dispose case deliberate dicta supposed deliberately avoided especially avoid passing gratuitos ly important issue public law due consideration crowded complicated elaborate issues decided accordingly join opinion except part ii agreed arrangements challenged government violative sherman law find shelter patent law howsoever valid patents defendants may short found validity patents suit irrelevant invalidity arrangements based upon fully recognizing needlessly considers question whether government may view american bell telephone attack validity patents present proceeding seems inadvisable leave precedent decision trial government estopped attack validity patents present proceeding surely easy enough sterilize trial decision explicit declaration issue need decided shall follow lead indulge dicta question whether suit like issue patentability contested government bearing upon undesirability announcing dicta issue pertinent point cases relies pronouncement hardly dispose problem cases licensee resisted claims royalties purported valid patents royalties refused patents owed issue involved sola electric jefferson electric edward katzinger chicago metallic mfg macgregor westinghouse electric manufacturing different considerations come play government seeks declaration invalidity see american bell telephone supra remotely intimating differences decisive merely suggesting due weighing differences light bell telephone case await duty adjudication undesirable product deliberate dicta refers hurn oursler reason passing issue decided dispose case seems inadvisable leave trial decision precedent problem hurn oursler exactly opposite case issue pronounced hurn oursler inescapably issue decided dispose case issue hurn oursler suit infringement copyrighted play brought federal joined cause action based unfair competition regard play federal jurisdiction pass merits claim unfair competition rejected suit infringement trial held dismissed claim want jurisdiction dismissing federal claim merits case came possibly sustain trial affirmed circuit appeals without necessarily affirming trial ruling issue jurisdiction reversed trial issue held district jurisdiction found however cause action dismissed merits accordingly modified decree dismissal merits want jurisdiction reached merits without first determining whether ws jurisdiction reach short hurn oursler precedent district set aside order decide case district upon issue essentially irrelevant therefore follow error district pronouncing upon issue decided dispose case appendix license agreement agreement made day october gypsum company illinois corporation chicago illinois hereinafter referred licensor ebsary gypsum new york corporation newark new jersey hereinafter referred licensee witnesseth licensor agreed hereby give grant unto licensee indivisible right license privilege using process processes king using machines inventions set forth claimed said patents applications letters patent set forth exhibit attached hereto manufacture gypsum plasterboard gypsum wallboard plants factories owned operated licensee plant factory hereafter owned operated controlled subsidiary associated affiliated company manufacturing place places selling using america territories possessions thereof gypsum plasterboard gypsum wallboard manufactured place places embodying inventions improvements set forth claimed said patents applications letters patent described said exhibit full term said letters patent letters patent may granted upon said applications including extensions reissues thereof expressly understood agreed indivisible exclusive right license privilege aforesaid granted upon condition licensor shall hereby reserves right determine fix time change time time existence said patents long said license shall continue minimum price prices licensee shall sell plasterboard gypsum wallboard manufactured licensee use machines appliances covered said letters patent shall embody inventions improvements set forth claimed said patents presently issued said plasterboard gypsum wallboard manufactured second parties shall embody inventions improvements set forth claimed either patent number patent number commencing date patent shall granted issued upon said roos bayer inventions applications said plasterboard gypsum wallboard manufactured licensee body core made according process set forth claimed patent granted upon said roos bayer inventions applications case licensor shall exercise right reserved shall first serve written notice intention upon licensee accompanied statement minimum price prices licensee shall sell said gypsum plasterboard gypsum wallboard thereafter shall give licensee written telegraphic notice change price prices licensee expressly covenants agrees long agreement shall continue force effect receipt notice given accordance terms conditions hereof directly indirectly sell offer sale gypsum plasterboard gypsum wallboard manufactured use machines appliances covered said patents existence thereof shall embody inventions improvements set forth claimed said patents presently issued gypsum plasterboard gypsum wallboard manufactured second parties existence thereof shall embody inventions improvements set forth claimed either patent number patent number gypsum plasterboard gypsum wallboard manufactured licensee patent shall issued upon said roos bayer inventions applications existence thereof body core made according process set forth claimed patent granted upon said inventions applications price prices less stated licensor said notice written telegraphic notice change price prices said minimum price shall moe price licensor determines sell plasterboard gypsum wallboard embodying inventions improvements set forth claimed said patents like trade market licensee agrees pay licensor said disclosures information assistance agreements licensor herein contained right license privilege using processes making using machines inventions manufacture plasterboard gypsum wallboard covered said patents applications letters patent described said exhibit privilege manufacturing using selling plasterboard gypsum wallboard embodying inventions improvements set forth claimed said patents applications letters patent amount hereinafter convenience referred license fee royalty equivalent three per cent selling price licensee plasterboard gypsum wallboard every kind whether made use said machines embodying inventions improvements set forth claimed said letters patent applications letters patent manufactured sold licensee date hereof february date expiration patent number mentioned said exhibit thereafter amount equivalent two per cent selling price licensee plasterboard gypsum wallboard manufactured sold february july date expiration said patent number thereafter amount equivalent one per cent selling price licensee plasterboard gypsum wallboard tured sold july date expiration last expire patent granted issued upon said roos bayer applications expressly understood agreed license herein granted shall personal licensee right herein thereunder shall sold assigned transferred without written consent licensor transferred operation law provided however may assigned licensee company acquiring assets business capital stock licensee condition licensee shall first obtain agreement writing assignee agreeing assume obligations licensee agreement bound terms conditions hereof shall deliver agreement licensor licensee agrees sell assets business capital stock transfer convey plasterboard wallboard business assets used connection therewith without requiring purchaser purchasers thereof assume writing obligations licensee hereunder agree bound terms conditions contract deliver agreement licensor licensee agrees keep separate full accurate books accounts records showing exact quantity plasterboard gypsum wallboard manufactured sold well separate record plasterboard gypsum wallboard sold bundles licensor duly authorized representative shall right reasonable times business hours inspect books account records licensee referred next preceding paragraph hereof including records every kind showing quantity said plasterboard gypsum wallboard manufactured sold quantity thereof put sold bundles price prices sold make copies thereof memoranda therefrom regard fact may certain manufacu rers plaster gypsum products jobbers wholesale distributors products may manufacture gypsum wallboard plasterboard desire may desire gypsum wallboard plasterboard manufactured understood agreed licensee may manufacture jobbers manufacture buy sell plasterboard gypsum wallboard straight cars mixed cars building material sell retail gypsum wallboard plasterboard embodying inventions improvements set forth claimed said letters patent letters patent shall issued granted upon said applications may written consent first party manufacture manufacturer wholesale distributor gypsum wallboard plasterboard embodying said inventions improvements provided however said license fee royalty paid licensor hereinbefore provided shall based upon gypsum wallboard plasterboard manufactured sold invoiced manufacturer jobber wholesale distributor upon regular selling price licensee plasterboard gypsum wallboard regular dealer trade time sale invoice shall based upon price plasterboard gypsum wallboard sold invoiced licensee manufacturer jobber sale distributor nothing hereinbefore contained agreement shall construed give licensee right manufacture gypsum plasterboard gypsum wallboard embodying inventions inprovements set forth claimed said letters patent letters patent shall granted upon said applications said manufacturers wholesale distributors sell without written consent licensor event either party shall time neglect fail refuse keep perform conditions agreements herein kept performed party election may serve upon party default written notice intention terminate license notice shall specify alleged neglect failure refusal within thirty days date delivery said notice party default shall cure default specified said notice party may cancel terminate agreement notifying party default writing election without necessity action case licensor shall subsequent effective date hereof grant person except abel davis eugene holland receivers universal gypsum lime successors said universal gypsum lime license said patents applications letters patent set forth said exhibit paragraph hereof manufacture sale use gypsum plasterboard gypsum wallboard bundles thereof embodying claims inventions set forth claimed said patents said applications shall grant right license upon terms favorable granted hereunder licensee grant licensee license terms extend right granted person paragraph shall apply license granted prior effective date hereof shall apply terms settlement claim licensor provisions respect payment thereof contained license footnotes bestwall mfg gypsum computing delivered minimum price hereunder rail freight wherever mentioned bulletin shall mean rail freight accordance rail rates published regular freight tariffs using weights shown shall include stopover switching cartage extra delivery charges applicable shipment allowances etc sale patented products though ostensibly made minimum price established licensor nevertheless considered violation provisions license licensee directly indirectly reduces actual price charged licensee minimum price granting customer rebates unearned unwarranted refunds credits discounts reducing price products hiring customers trucks granting allowances advertising purposes splitting salesmen compensation commissions customers overshipment patented products including board guise dunnage making payment allowance form money otherwise purpose effect reducing price charged licensee minimum price compare becher contoure laboratories see discussion rule concerning admissibility declarations alleged page evidence assuming declarations connected page district general electric case establishes patent license agreement granting right make use vend patented product terms conditions including prices fixed licensor lawful license agreement ordinarily prices general electric case part license contract necessarily involves negotiation discussion licensor licensee agreement upon terms conditions purpose execute carry agreement combined action signing agreement performing obligations thereof knowledge result stabilized presumably profitable price patented product parties industry since parties virtue patent ones right make use sell superior patented product knowledge result monopoly divided patent monopoly probable discontinuance manufacture sale licensee inferior materials licensee incentive take license right make superior product control distribution lawful patent license agreement normally involves unlawful additionally since patent owner may lawfully divide patent monopoly plurality licensees usual course licensees negotiation discussion agreement upon terms purpose execute carry license contract accomplish normal results combined action case single licensee licensee informed discuss licensor terms conditions proposed licenses otherwise single license executed patent owner able license competing manufacturers upon different price terms one willing suffer competitive disadvantages one willing sign dark terms extended others ordinarily moreover discussion large within trade advantages disadvantages licenses proposed patent owner plurality licensees moreover purpose take license secure resulting advantages licensor licensee plurality constitute fectuate purposes license since plurality licenses lawful must lawful practical effect licensor plurality licensees end stigmatized lawäprovided purpose effect secure patent owner normal reward patent monopoly licensees monopoly divided advantages naturally result licensee well licensor patent licensing necessarily follows general electric case pages referring evidence district said supp page items prove conspiracy charged show licenses bona fide executed accomplish restraints outside proper limits patent monopoly view importance case consequent probability reach higher tribunal think desirable also state views meaning evidence declarations considered binding merely upon declarant also upon alleged considered evidence light think government still proved license agreements executed bona fide license agreements reasonably designed secure usg pecuniary rewards patent monopoly sham agreements give color legality illegal purposes alleged compaint proved operations defendants carried beyond proper limits usg patent monopoly therefore proved combination conspiracy charged evidence discussed topics vi proves lack bona fides execution license agreements operations beyond limits patent monopoly declarations regarded binding upon alleged declarations considered binding upon declarant necessarily soäin view take significance declarations since demonstrated topics vi fail convict declarants lack bona fides execution licenses operations beyond proper limits usg patent monopoly convict others thereof van riper lefco deacon compagna doc notes rules civil procedure report advisory committee rules civil procedure april rule notes preliminary draft rules civil procedure district may rule notes corn products refining federal trade national labor relations board pennsylvania greyhound lines lawrence mccalmont reconstruction finance bankers trust street federal equity practice furrer ferris tilghman proctor district columbia pace virginian quote findings typical fact privilege using patents royalties fixed license agreements amount equivalent designated percentage selling price licensees gypsum board manufactured whether patented de establish agreement make patented product establish license agreements executed bad faith patents numerous covered patented board machines processes manufacture board rights privileges granted great value manufacturers gypsum board royalty provision effect provision percentage gross sales convenient means measuring amount paid privilege using patents might equal propriety lump sum provision license agreements attempt impose royalty upon unpatented product intended drive board market effect defendants operations license agreements agreement understanding accomplish improper standardization gypsum board method production charged government quote findings typical license agreements executed intent effectuate improper restriction upon distribution gypsum board plaster miscellaneous gypsum products specifically jobbers discontinuance sales discount agreement understanding parties license agreements instant case whereby jobbers eliminated gypsum board distributive system understanding agreement jobbers discounts discontinued issuance bulletin august exhibit making price jobbers dealers exercise right usg establish price patented product quote findings typical time understanding agreement among parties respective license agreements prices raised fixed plaster unpatented gypsum product license agreements instant case executed intent raise maintain stabilize prices unpatented materials plaster miscellaneous gypsum products parties respective license agreements knew licensor right fix minimum prices limited prices patented board manufactured sold respective licensees bulletin provision sale patented products though ostensibly made minimum price established licensor nevertheless considered violation provisions license licensee directly indirectly reduces actual price charged licensee minimum price reducing price products part larger provision concerning rebates allowances made purpose effect reducing licensee price patented board minimum price thereforäa price protective provision device raise maintain stabilize price plaster miscellaneous gypsum products applied defendants end effect contrary provision question proper price protective measure reasonably designed secure usg pecuniary reward patent monopoly operation used raise maintain stabilize price unpatented materials objection made findings held defendants conspired fix resale prices board sold manufacturing distributors binderup patie exchange eastern retail lumber dealers reading swift fed rules serv pike fischer gulbenkian gulbenkian know reason statement gulbenkian case unnecessary appellant offer evidence second time applicable