Page:Harvard Law Review Volume 10.djvu/30

4 4 HARVARD LAW REVIEW. course of trade in another territory in which another person had an exclusive right. No reference is made in these cases to the decision of Judge Coxe in Hobbie v. Smith,i ^ which the facts were similar to those in Hobbie v, Jennison, afterwards decided by Judge Brown,^ and finally by the Supreme Court. ^ The question was whether the plaintiffs, being assignees of a patent for certain States, could recover damages for the sale of the patented articles in another territory by persons who knew that they were to be used in the territory of the plaintiffs. Upon this proposition, Judge Coxe said, " there may be room for discussion as to what the law should be; there can be none as to what the law is. In Adams v. Burke^ 17 Wall. 453 (at Circuit, i Holmes, 40), the question was shaiply at issue, and the Supreme Court decided that a patented article, when rightfully bought, could be used anywhere, thus going a step further than is necessary in the case at bar, for here the action is against the seller, there being no pretence that the defendant ever used the pipe in the forbidden territory." Hobbie v. Jennison * came before Judge Brown (afterwards a justice of the Supreme Court), and he agreed with Judge Coxe that the case was not to be distinguished from Adams v. Burke, and said that that case must be accepted as authority for the broad proposition that the sale of a patented article by an assignee within his own territory carries the right to use it everywhere, notwith- standing the knowledge of both parties that a use outside of the territory was intended ; but he said : " Were this an original propo- sition, we should be strongly inclined to hold that the vendor of a patented article who sells the same for the purpose of or know- ing that it will be resold or used in the territory belonging to an- other, is equally amenable to suit as if the sale were made in such other territory." And referring to Adams v. Burke, he said: "It may perhaps admit of some doubt, especially in view of the strong dissenting opinion in that case, whether this doctrine will be ad- hered to should the question ever be reargued, but of course the case is the law unto this court, and must be followed until over- ruled by the court which pronounced the opinion." Shortly after this, the Supreme Court decided a case involving 1 27 Fed. Rep. 656, U. S. Circuit Court, N. D. New York, May 10, 1885 2 40 Fed. Rep. 887, E. D. Mich., March 4, 1889. 8 149 U. S. 355.
 * 40 Fed. Rep. 887, U. S. Circuit Court, E. D. Mich., March 4, 1889.