infringement

Any use beyond the valid terms of a license is, of course, an infringement of a patent.

In patent law. A word used to denote the act of trespassing upon the incorporeal right secured by a patent. 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. To constitute an infringement, there need not be a precise duplication, but only an adoption of the "operative principle" (1 Fish. Pat. Cas. [U. S.] 319); a mere change in the mechanical incidents, while retaining the principle, being an infringement. By the "principle" of a machine is not meant the original elementary principles of motion, but the modus operandi, — the peculiar device or manner of producing the effect. 1 Gall. (U. S.) 478. The term is also applied to the unlawful or unauthorized use of copyrighted matter or of a trademark or trade name.

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

A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract or right Used especially of invasions of the rights secured by patents, copyrights, and trademarks. Goodyear Shoe Machinery Co. v. Jackson, 112 Fed. 146, 50 C. C. A. 159, 55 In R. A. 692; Thomson-Houston Electric Co. v. Ohio Brass Co., 80 Fed. 721, 26 C. a A. 107.

— Contributory infringement. The intentional hiding of one person by another in the unlawful making or selling of a patented invention; usually done by making or selling one part of the patented invention, or one element of the combination, with the intent and purpose of so aiding. Thomson-Houston Electric Co., v. Specialty Co. (C. C.) 72 Fed. 1016; Shoe Mach. Co. v. Jackson, 112 Fed. 146, 50 C. C. A. 159, 55 L R. A. 692; Thomson-Houston Electric Co., v. Ohio Brass Co., 80 Fed. 712, 26 C. C. A. 107; Stud Go. y. O'Brien (a G.) 93 Fed. 203.

A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract, or right. Used especially of invasions of the rights secured by patents, copyrights, and trademarks.

! Breaking, infraction, violation; a trespass, transgression, invasion. Infringer. One who invades or violates another's right. Infringement, with its inflections is used of a violation of a law, regulation, contract, or common right; more often of the usurpation of an exclusive right. Thus ic has acquired a use almost technical in reference to the law of copyrights, patents, and trademarks; an infringement of any one of which consisting in violating the exclusive right another person has secured to make, sell, or use the thing in question. In determining the question of the infringement of a patent right, the court or jury, as the case maybe, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of v> hat they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, /if it performs substantially the same function in substantially the same way to obtain the same result, always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substantially different result.* Where a defendant, who had been enjoined from using an invention, asked that he might give bond so that he could continue to use the invention and fill contracts therefor, it was held that a bond would not be adequate protection to the complainant's rights. The defendant also asked that the life of the injunction be limited to a day when,' it was alleged, the patent would expire; but the court held that the time being in litigation the question could be disposed of on a motion to dissolve when that time arrived. It was further decided that the court had no authority to restrain the complainant from publishing the fact that the Injunction had been issued.^ A right of action for the infringement of a patent survives to the personal representative of the patentee, and he may transfer the right to another person. There is no Federal statute of limitations in force respecting infringements committed since June 22, 1874. State statutes of limitations have no application.* See Copyright; Design, S; Patent, S; Propit, 2; Trade-mare. Compare Interference.