Page:Harvard Law Review Volume 12.djvu/59

39 INFRINGEMENT OF PATENT RIGHTS. 39 ant's act amounted to a manufacture of the apparatus, and was therefore an ordinary infringement If the patent was strictly for a method or process, and not in terms for an apparatus, participa- tion in the instalment of the apparatus necessary to the perform- ance of the method or process would certainly be a contributory infringement of the patent, if indeed it would not be treated as a case of direct infringement. It is submitted that the proper treat- ment of such a case would be under the rule of contributory in- fringement, for the methods or processes which form the subject of patent claims are dissociated from any apparatus of which the function is performed in carrying out the process; one of the best established rules of patent law being that the mere functions of a machine or apparatus cannot properly be claimed as a process,^ The full meaning of the rule of contributory infringement is stated in Travers v. Beyer,'^ wherein the opinion of the court is inconsistent with a specific limitation of the rule such as might be read into Wallace v. Holmes or Holly v. Vergennes Co. The court states the case as follows : — article, which, of necessity, to their knowledge, is to be used for the pur- pose of infringing the complainant's patent. They therefore concert with those to whom they sell the blocks to invade the complainant's rights. They are intentional promoters of the ultimate act of infringement." The question has been asked, and probably has been urged by the defendant in every case of contributory infringement, whether a perilous precedent was not being established which might lead in conceivable instances to an unjust embarrassment of a manu- facturer or seller of articles innocent in themselves, which, never- theless, had become actual instruments of wrong in the hands of others. There is always, nominally at least, a clear remedy for the patentee by suit against the immediate infringers whose acts are punishable by injunction, whether or not any actual intent to in- fringe existed. In many cases, however, such a remedy is wholly inadequate. A manufacturer who distributes thousands of infring- ing machines is the only defendant against whom the patentee can obtain real relief; for as against the purchaser and user a suit in equity could not reimburse the patentee for the unavoidable ex- penses of his suit ; the courts recognize the existence of this state 1 Locomotive Works v. Medart, 158 U. S. 68. " 26 Fed. Rep. 450.
 * They [the defendants] are making and putting upon the market an