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one inventor precedes all the rest, and strikes out something which includes and underlies all that they produce, he acquires a monopoly, and subjects them to tribute. But if the advance toward the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he produces, and every other inventor is entitled to his own specific form, so long as it differs from those of his competitors, and does not include theirs" (16).
$ 52. Change of form. A machine which contains all the essential elements, or their equivalents, of the patented machine, infringes the patent, notwithstanding mere differences of form (17). This rule ordinarily applies to differences in appearance, name, shape, proportions, dimensions and to mere structural differences generally (18).
$ 53. Additions to and improvements upon patented inventions. Adding to, or improving upon a patented invention does not negative infringement, even though the additions or improvements may amount to independent inventions, and may have been patented to the infringer as such. A contrary rule would in many cases deny protection to the pioneers in the various fields of invention, as their early inventions are almost always improved upon by others, who subsequently obtain patents for their respective improvements.
But one who has himself improved an old device, and
(16) Ry. Co. v. Sayles, 97 U. S. 556.
has obtained a patent for his particular improvement, cannot prevent others from also improving such old device, provided their improvements are substantially different from his, within the meaning of the patent law (19). A contrary rule would work injustice in many cases by enabling a patentee, who does not have the merit of being a pioneer inventor in his field, but who has merely followed the suggestion of another, to suppress further invention in the same field by others who are not using his ideas at all.
And in general it may be said that infringement is not avoided by a mere change of form or renewal of parts, or reduction of dimensions, or the substitution of mechanical equivalents, or the studious avoidance of the literal definition of specifications and claims, or the superadding of some improvements. If the device contains material features of the patent in suit it will constitute an infringement, though those features have been supplemented and modified to such an extent that the defendant may be entitled to a patent for the improvement (20).
$ 54. Infringement of combination. One who uses all of the elements of a patented combination of elements, infringes such combination, whether he uses other elements in addition, or not; but one who omits one or more of such elements does not infringe the combination. It is therefore important, in drawing claims to a combination (which is an ordinary way of claiming machines and manufactures, as these things are usually merely
(19) 22 Am. & Eng. Ency. of Law (2nd ed.), 458.
(20) Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 Feq. 845; O'Reilly v. Morse, 15 Họw. 62,
combinations of elements) to include in the broadest claims only such elements as are essential to the operation of the device, as otherwise any one might subsequently escape infringement by omitting an unessential element of the patented combination. On the other hand, all essential elements must be included, or the claim will be held void on the ground that the combination is inoperative. It therefore often requires a nice discrimination to determine what to include, and what not to include in such claims.
§ 55. Infringement of compositions of matter and design patents. The rule of the preceding sub-section applies also to patents for compositions of matter, and one who uses all of the ingredients of the composition as claimed, infringes, whether he uses other ingredients in addition or not; but one who omits one or more of such ingredients does not infringe.
The same principles which govern in determining the question of infringement of patents for the kinds of inventions above considered, govern in general in determining the question of infringement of a design patent. The test is one of identity of appearance, but identity in this sense means only substantial identity, as in the case of the other kinds of patents, and a mere difference of lines in the two designs, a greater or smaller number of lines, or slight variations of configuration, will not destroy the substantial identity (21).
To constitute infringement of a patent for a design, it is not essential that the appearance should be the same to
(21) Gorham Mfg. Co. v. White, 14 Wall. 511.
the eye of an expert, but the true test is the eye of an ordinary observer. If in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one, supposing it to be the other, the patented design is infringed by the other (22).
§ 56. Contributory infringement. One who, without himself making, using, or selling a patented invention, does acts which aid or encourage another in infringing the patent, may be guilty of contributory infringement. Thus, where the defendant made a machine which did not infringe the plaintiff's patent, but was so made that it might easily be adjusted by a third person so as to infringe, and the intention was that it should be so adjusted, and it was so adjusted, the defendant was held to be guilty of contributory infringement (23); and likewise, where the constituents of a patented hair dye were sold by the defendant in separate bottles, accompanied by a circular containing directions for the application of the contents of the bottles, similar to the specification of the patent (24).
Recently the doctrine of this section has been passed upon by the courts a number of times in cases wherein patented machines and devices have been sold or leased with conditions governing their subsequent sale or use, and such conditions have been broken, the question being whether or not a third person who aids in such breaking of a condition is guilty of contributory infringement.
(22) Ibid. (23) Knight v. Gavit, Fed. Cas. No. 7884. (24) Imperial Chem. Mfg. Co. v. Stein, 69 Fod. 616.
In Heaton Peninsular Button Fastener Co. v. Eureka Specialty Co., (25), the complainant was the owner of a patent covering a machine for affixing buttons to shoes by means of staples. The staples were necessarily of exactly the same size as the chute of the machine through which they were fed. The complainant sold no rights to manufacture the machines, but manufactured the machines and furnished them to the trade, each chine having affixed thereon the following label:
Condition of Sale.
“This machine is sold and purchased to use only with fasteners made by the Peninsular Novelty Company, to whom the title to said machine immediately reverts upon violation of this contract of sale."
The machines were sold to shoe dealers at actual cost of the machine, and the patentee derived its profit on its monopoly from the sale of staples to purchasers of the machines. The defendants made and sold staples adapted only for use with the machines of complainant. The bill of complaint alleged that the defendants were guilty of contributory infringement by selling staples to purchasers of the complainant's machines, as they thereby induced such purchasers to infringe complainant's patent. It
(25) 77 Fed. 288. See also Tubular Rivet and Stud Co. v. O'Brien, 93 Fed. 200; Victor Talk. Mach, Co. v. The Fair, 123 Fed. 424; Crown Corn and Seal Co. v. Brooklyn Bot. Stop. Co., Fed. Rep. Advance Sheet, Oct. 21, 1909.