Page:Harvard Law Review Volume 12.djvu/62

42 42 HARVARD LAW REVIEW. diate infringers was satisfactorily established, and the court held that as there were miscellaneous innocent uses for such things as sheet-metal flues and elbows, and as no specific instances were proved which brought any charge of wrongful intent to the defend- ant's door, no injunction could issue which would not in its opera- tion embarrass the defendant in the pursuit of his lawful business. Wallace v. Holmes, supra, was cited with approval, and clearly distinguished. If the proofs in Alabastine Co. v. Payne, supra, had established merely the facts that the defendant sold calcined gypsum and like- wise glue, these things being recognized articles of general com- merce, in all probability no injunction would have issued. But the defendant had made the case clear, first by making a mixture of calcined gypsum and glue (an unusual compound, probably), and second by selling it with directions for use with a proper amount of water. The injunction could, under the rule appUed, quite prop- erly suppress acts of such well-defined purpose. In a later case Judge Coxe, who decided the Alabastine case, made the proper distinction clear. The defendant sold metallic button fasteners to all persons who desired to purchase, and to some extent to jobbers and distributors of such articles. These fasteners were adapted for use in button-fastening ma- chines which had previously been declared to be infringements of the complainant's patent. Many of them, however, still re- mained at large in the hands of users who had bought them from the infringing manufacturer. The use of these machines, by whomsoever held, was conceded to be an infringement of the patent. But the manufacturer of these machines had also at a prior date made and sold a number of button-setting machines which did not embody infringements of the patent in suit, and th^se machines also were capable of using the troublesome button fasteners, which in themselves were innocent articles of manufac- ture, resembling nothing so much as very diminutive hairpins. Here there was a case where the defendant, selling without ques- tioning his customer, argued well that so far as he was concerned the ultimate use of the fasteners might or might not be innocent, and that he was not under the disagreeable duty of making inquiry. But, as the complainant had proved that the defendant, who was one of the former manufacturers of the infringing machines, jeal- ously kept possession of all the books wherein the names and addresses of the users of those machines were listed, and as it was