Page:Harvard Law Review Volume 12.djvu/61

41 INFRINGEMENT OF PATENT RIGHTS. 4I joined. The defendant urged that the injunction prayed for v/ould work serious hardship in depriving him of the benefits of his law- ful business, and that the mere carriage of the goods in question constituted no invasion of the patentee's privileges, being neither manufacture, sale, nor use. Judge Blatchford disposed of these contentions, saying in effect that the defendant would be deprived by injunction of no business which he would not lose if all the immediate infringers, the users or intended users, of the ties and buckles, were disciplined by the injunctions which would issue against them, were they known and duly prosecuted. The fact that it was wholly impossible to use the old ties and buckles except as instruments of infringement seems to have been a determining factor, the court perhaps assuming judicially that the shipment of broken cotton ties as old junk involved a commercially impossible transaction. However unusual the circumstances of the McCready case may seem, it is believed that the rule there apphed affords a test for gov- erning all cases of contributory infringement : a test to be used as a supplement to the test of intent, if indeed it is not coterminous therewith. Will the injunction asked for deprive the defendant of any business which he would enjoy in case all the persons who wrongfully use the things sold were enjoined against continuance of the immediate infringement? If the only possible use of the articles made and sold involves an infringement of patent right, then the wrongful intent of the vendor follows as a matter of course ; but if, on the other hand, there exist rightful uses of the things sold, the specific intent in special instances must be traced and proved so that the issue of injunction may be guarded by proper conditions and terms. The rule is the same in either case, requiring an application in varying measure to suit conditions. Cases which illustrate the working of the rule are not wanting. In Millner v. Schofield,^ the owner of a patent for a tobacco- curing apparatus, which involved in its structure sundry elbows and flues of sheet iron for the conveyance and distribution of hot air, brought his bill in equity against a manufacturer of sheet-iron ware, seeking to have him enjoined against making and selling flues and elbows, alleging that these articles were used by others in installing and completing tobacco-drying apparatus which infringed the patent. No proof of actual concert with the imme- 1 4 Hughes, 258. 6