Page:Harvard Law Review Volume 12.djvu/60

40 40 HARVARD LAW REVIEW. of things, and in cases of contributory infringement assist the patentee, so far as possible and proper, in his attempt to stop the trespass at its origin rather than compel him to take a course which practically opposes an impossibility to his effort toward establishing or enforcing his right. " Parties should not be permitted to evade the law by such proceedings as these papers disclose ; it is the clear duty of the court to arrest the wrong in its inception." ^ The case from which this quotation is ^aken presents a pecu- liarly suggestive state of facts. The patent sued on was for a com- position of matter, composed of pulverized calcined gypsum, glue, and water, for use as a calcimine. The defendant sold a compound composed of pulverized calcined gypsum and glue, directing the purchaser to add the necessary water. The court held that the defendant, in selling a compound which he knew could not be used without involving an infringement of the patent, was himself an infringer, although in terms the compound which he sold did not fall within the patent claim, and cited in support of the rule a number of cases, among them Wallace v. Holmes, Travers v. Beyer, and Cotton Tie Co. v. Simmons.^ The last-mentioned case is one of a group ^ of strenuously contested cases which present an in- teresting condition of facts. The complainant made a patented cotton tie buckle and band, and in order to keep its market alive with a continuing demand for new goods, sold the ties and buckles with an express condition that they were to be used once only, the ease with which old buckles and bands could be remade and used repeatedly being obvious. The case which brings the doctrine of contributory infringement into boldest relief is the McCready case, where the defendant, a shipowner and carrier, was in the habit of conveying quantities of dismantled cotton ties and buckles to South- ern planters whose notorious intentions were to use the patented articles after the first and only licensed use was past. Doubtless recognizing the futility of seeking its remedy against the users themselves, who were widely scattered and in most cases obscure and unknown, the patentee brought its bill against the carrier, praying that the shipment of these instruments of trespass be en- 1 Alabastine Co. v. Payne, 27 Fed. Rep. 559. 2 106 U. S. 89, 94, 95. Same v. Bullard, 4 Ban. & Ard. 520 ; Same v. McCready, 4 Ban. & Ard. 588.
 * Cotton Tie Co. v. Simmons, 3 Ban. & Ard. 320; Same v. Same, 108 U. S. 89;