Infringement

A word used to denote the act of trespassing upon the incorporeal right secureil by a patent or copyright. Any person who, without legal permission, shall make, use, or sell to another to be used, the thing which is the subject-matter of any existing patent, is guilty of an infringement, for which damages may be recovered at law by an action on the case, or which may be remedied by a bill in equity for an injunction and an account The manufacture, sale, or use of an invention protected by letters patent, within the area and time described therein by a person not duly authorized to do so.

Rob. Pat S 890.

Infringement is a mixed question of law 28 L. Ed. 1106. Whether a device is an infringement is determined by the claims of the patent and not by the actual Invention; Meissner v. Manuf’g Co., 9 Blatohf.

363, 5 Fish. 285, Fed. Cas. No. 9,397.

There is no infringement unless the invention can be practised completely by following the specifications. An infringement is a copy made after, and agreeing witli, the principle laid down in the patent; and if the patent does not fully describe everything essential to the thing patented, no infringement will take place by the fresh invention of processes which the patentee has not communicated to the public; Page v. Ferry, 1 Fish. 298, Fed. Cas. No. 10,662. Where the same advantages are gained by substantially the same means, there is Infringement; Wallicks v. Cantrell, 12 Fed. 790. The test is whether the defendant uses anything which the plaintiff has invented; Crompton v. Knowles, 7 Fed. 199. However different, apparently, the arrangements and combinations of a machine may be from the machine of the patentee, it may in reality embody his Invention, and be as much an infringement as if it were a servile copy of his machine. If the machine complained of involves substantial identity with the one patented, it is an infringement. If the invention of the patentee be a machine, it is infringed by a machine which incorporates, In its structure and operation, the substance of the invention, — that is, an arrangement which performs the same service, or produces the same effect, in the same way, or substantially the same way; Sickels V. Borden, 3 Blatchf.

535, Fed. Cas. No. 12,832.

A device may be an infringement though it be Itself a new invention; Zeun v. Kaldenberg, 16 Fed. 639. To obtain the same result by the same mode of operation constitutes infringement; Shaver v. Mfg. Co.*, 30 Fed. 68; and so where there is a mere formal change; Strobridge v. Landers, 11 Fed. 880; or variations in size, form, and degree; Asmus V. Alden, 27 Fed. 684; Lull v. Clark, 13 id.

456.

An invention limited to certain forms is infringed only by the use of those forms; Toepfer v. Goetz, 31 Fed. 913. Where the same result is accomplished, the same function performed, and the mode of operation Is the same, a mere difference in the location of parts will not avoid Infringement; 42 O. G. 297. An improvement may be an infringement; Brainard v. Gramme, 12 Fed. 621. An’ improvement and its original are separate inventions, and the Inventor of one Infringes by the use of the other; Royer v. Coupe, 29 Fed. 358; American Bell Telephofle Co. v. Dolbear, 16 Fed. 448. It Is, however, presumed that use under one patent does not infringe another; Smith v. Woodruff, 1 Mac- Inventions are different, and that the later patented invention Is not an infringement of the former; La Raw v. Hawkins, 1 Bann. & A. 428, Fed. Gas. No. 7,960; American Pin Go. V. Oakville Go., 3 Blatchf.

190, Fed. Gas. No. 313.

To experiment with a patented article for scientific purposes, or for curiosity, or amusement, is said not to constitute infringement; Poppenhusen v. Falke, 4 Blatchf. 493, Fed. Gas. No. 11,279, but this cannot be invariably true. To make and exhibit a device at a fair, but not for use or sale, is not an infringement; Standard Measuring Mach. Co. V. League, 16 Fed. 390; nor is mere exposure for sale; 4 A. & B. 261; nor advertising an invention; 19 O. G. 727; but the latter is strong evidence of infringement; 19 O. G. 727. To make an article for sale abroad is an infringement; Ketchum Harvester Co. v. Harvester Co., 8 Fed. 586. An infringement may be committed by repairing as well as making the Invention, if it Involves reconstruction either in whole or in part; Goodyear Dental Vulcanite Co. V. Preterre, 3 Bann. & A. 471, Fed. Gas. No. 6,696. To make a part with intent to use it, or to sell it to be used, in connection with the other parts of the invention, is infringement; Celluloid Mfg. Co. v. American Zylonite Co., 30 Fed. 437. One who makes and sells one element of a patented combination with the intention and for the purpose of bringing about its use in such a combination, is guilty of infringement; Thomson-IIouston Electric Co. V. Brass Co., 80 Fed. 712, 26 C. C. A. 107; but not where the article made by the alleged infringer was not separately patented and was of a perishable nature (sheets of toilet paper); id. It has been held that replacing broken or worn-out parts is not necessarily infringement; Shlckle, Harrison & Howard Iron Co. v. Car Coupler Co,, 77 Fed. 739, 23 C. C. A. 433; Thomson-Houston Electric Co. V. Specialty Co., 75 Fed. 1009, 22 C. C. A. 1. See Heaton- Peninsular Button-Fastener Co. V. Specialty Co., 77 Fed. 288, 25 C. C. A. 267, 35 L. R. A. 728, citing many cases. No act of making, use, or sale can be an Infringement of a patented Invention unless it is performed during the life of the patent; Marsh v. Nichols, Shepard & Co., 128 U, S. 605, 9 Sup. Ct. 108, 32 L. Ed. 538; Rein v. Clayton, 37 Fed. 3.54, 3 L. R. A. 78; see Kirk