Page:Harvard Law Review Volume 10.djvu/29

3 TERRITORIAL RIGHTS IN PATENTED ARTICLES, 3 of trade, outside the territorial limits to which the right to sell is restricted by the patentee's grant, is unwarranted. In Hatch v. Hall,^ a suit in New York relating to the same patent. Judge McKennan's opinion was referred to with approval by Judge Wheeler, and a preliminary injunction was granted against the sale of the patented articles by the defendant outside of his own territory, but was not allowed as to sales made within his territory on the mere allegation that purchasers might take them for sale into the territory of the complainant; and in the same case, on final hearing,''^ it was held that the defendant should be restrained, not only from selling within the territory of the complainant, but also from making sales to persons who purchased of him in his own territory for the purpose of selling within that of the complainant. With respect to Adams v. Burke, the judge said : " That case is to be followed here, of course, as far as it went, while it stands. It leaves the defendant the right to sell within his ter- ritory for more use outside. But it was carefully limited to what was necessary to be decided and did not go beyond the mere use in question. It falls far short of holding that a purchaser from an owner of a territorial right within the territory could sell outside without infringing upon the rights of the owner of that territory." In Sheldon Axle Co. v. Standard Axle Works, ^ Judge Butler limited the decision in Adams v. Burke to a question of the con- struction of the assignment, and distinguished that case from one in which the plaintiff held the first assignment of a territorial right and the defendant took with notice of it. He held that the defendant, having notice of the grant to the plaintiff, could not even use the patented article within his territory, although it was purchased elsewhere. Just at this time the case of the Standard Folding Bed Co. came before Judge Colt, in Massachusetts,* and he also distinguished Adams v. Burke. He said the decision was expressly limited to the right to use, and that even with this re- striction the court were divided in opinion; and he said he agreed with the conclusion of Judge McKennan in Hatch v. Adams, and held that the purchaser of a patented article from the assignee of a certain defined territory was not at liberty to sell it in the 1 22 Fed. Rep. 438, U. S. Circuit Court, E. D. N. Y., Dec. 4, 1884. 2 Hatch V. Hall, 30 Fed. Rep. 613, April 26, 1887. 8 37 Fed. Rep. 789, U. S. Circuit Court, E. D. Penn., Feb, 21, 1889. Mass., Feb. 20, 1889. Followed on final hearing, Jan. 3, 1890, 41 Fed. Rep. 61.
 * Standard Folding Bed Co. v. Keeler, 37 Fed. Rep. 693, U. S. Circuit Court, D.