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P sought a declaratory judgment of invalidity and non-infringement of three patents held by D and upon a counterclaim by D for patent infringement and unfair competition, the court found D's three patents invalid for lack of invention, not infringed by P's product and further, that there was no proof that P engaged in acts of unfair competition. The Court of Appeals reversed and remanded holding that D's patent was valid and infringed by P. The case was referred to a special master to determine the amount of damages to be awarded. The master, computing damages upon the basis of GP's profits derived from the sale of the infringing article, awarded $685,837.00 to D. Judge Herlands, on exception to the Master's Report, concluded that under the instant circumstances and controlling statute P's profits did not constitute the proper measure of recovery, and that the award to D should have been computed on the basis of a reasonable royalty. Evidence relating to the issue of the amount of reasonable royalty to be paid was presented. The judge died on August 28, 1969, without having filed a formal opinion on this issue. However, at the time of his death Judge Herlands had substantially completed a draft of his opinion. A new judge was appointed and both parties stipulated to the use of the substantially completed draft opinion.

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