Any one may, without license, make a patented article for mere experiment, or for the purpose of ascertaining the sufficiency of the thing to produce the effects claimed for it, or perhaps when it is made for mere amusement, or as a model.1 But it must not be exposed for sale, nor must it have been made for the purpose of pecuniary profit, though experiment was also part of the purpose.2

The unauthorized sale of a patented machine, to constitute an infringement, must be a sale, not of the materials of a machine, either separate or combined, but of a complete machine, with the right, expressed or implied, of using the same in the manner secured by the patent. It must be a tortious sale, it has been said, not for the purpose merely of depriving the owner of the materials, but of the use and benefit of his patent, --a point, however, of some doubt, as has already been observed. The sale of the materials merely, cannot, it is clear, amount to an infringement. For example: The defendant, a deputy sheriff, having an execution against the plaintiffs, levies upon and sells the materials of three patented machines, of which the plaintiffs are owners, the materials being at the time complete and fit for operation as machines. The purchaser has not put any of the machines into operation; nor is the sale made with intent that he should do 80. This is not a breach of duty to the plaintiffs.

3

The sale or use of the product of a patented machine is no violation of the exclusive right to use, construct, or sell the machine itself; and the patent for a discovery of

1 Beedle v. Bennett, 122 U. S. 71, 77; Elizabeth v. Pavement Co. 97 U. S. 126, 134; Frearson v. Loe, 9 Ch. D. 48. See Whittemore v. Cutter, 1 Gal. 429; Sawin v. Guild, id. 485; Jones v. Pearce, Webs. Pat. Cas. 125.

2 Smith Manuf. Co. v. Sprague, 123 U. S. 249, 256.

8 Sawin v. Guild, 1 Gal. 485.

a new and improved process, by which any product or manufacture before known in commerce may be made in a better and cheaper manner, grants nothing but the exclusive right to use the process. Where a known manufacture or product is in the market, purchasers are not bound to inquire whether it was made on a patented machine or by a patented process. But, if the patentee be the inventor or discoverer of a new manufacture or composition of matter not known or used by others before his discovery or invention, his franchise or right to use and vend to others to be used is the new composition or substance itself. The product and the process, in such a case, constitute one discovery, the exclusive right to make, use, or vend which is secured to the patentee. For example: The defendants, a railroad company, use, without license of the plaintiff, a certain article called vulcanized India-rubber in their car-springs, for the manufacture of which substance the plaintiff has a valid patent; his specification, though describing primarily a process, still showing that the purpose and merit of the process were the production of a valuable fabric. The plaintiff has a patent in the article itself, and the act of the defendants is a breach of duty to him.2

Finally, the Revised Statutes of the United States provide that every person who, in any manner, marks upon any thing made, used, or sold by him for which he has not obtained a patent, the name or any imitation of the name of any person who has obtained a patent therefor, without the consent of such patentee, or his assigns or legal representatives; or who, in any manner, marks upon or affixes to any such patented article the word 'patent' or 'patentee,' or the words letters-patent,' or any word of

1 See ante, p. 252.

6

2 Goodyear v. Railroad, 2 Wall. C. C. 356.

like import, with intent to imitate or counterfeit the mark or device of the patentee, without having the license or consent of such patentee or his assigns or legal representatives; or who, in any manner, marks upon or affixes to any unpatented article the word 'patent,' or any word importing that the same is patented, for the purpose of deceiving the public, shall be liable for every such offence, to a penalty of not less than one hundred dollars, with costs; one-half of said penalty to the person who shall sue for the same, and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offence may have been committed.1

§ 3. OF TRADE MARKS.

The law relating to trade marks has been changing its point of view, if not its grounds, in recent times, and becoming, as has been observed in another place," assimilated to the law of property. The old mode of suing for deceit is falling into disuse as a remedy for infringing a trade mark, in the light of the better remedy afforded by equitable proceedings. But it is not yet clear that the law has advanced or will advance to the point of assimilating the law of trade marks so far with the law of property (as e.g. the law of patents) as to make it safe to say that, for the purpose of recovering damages, the old authorities, which make the action virtually an action for deceit, are no longer law.3

The subject, with this suggestion, must then be dropped in this connection; for while an ample remedy is provided upon the footing of a property right in the trade mark where damages are not sought, it is to be borne in mind that this book is a treatise relating to actions for dam1 Rev. Sts. § 4901. 2 Ante, p. 79, note. * See Reddaway v. Bentham Hempspinning Co., 1892, 2 Q. B. 639, 644, 646.

ages. In a word, an injunction, or nominal damages, may be had in respect of the infringement of a trade mark right, without further requirement; but it is not clear whether substantial damages can be obtained without proof of fraud as interpreted by the courts in the law of deceit.

3

§ 4. OF COPYRIGHTS.

The Revised Statutes of the United States grant to any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph,2 or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, who complies with certain preliminary requirements, the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and to authors the privilege of reserving the right to dramatize or to translate their own works.5

1 See Cooley, Torts, 423-430, 2d ed. The authority of Congress over trade marks is limited. Trade Mark Cases, 100 U. S. 82. Not so of the State legislatures.

2 See Burrow Lithographic Co. v. Sarony, 111 U. S. 53, showing that the photograph should represent an original conception.

8 Parton v. Prang, 3 Cliff. 537.

4 See The Iolanthe Case, 15 Fed. Rep. 439; The Mikado Case, 25 Fed. Rep. 183; Tompkins v. Halleck, 133 Mass. 32 (on hearing and committing to memory a play, then writing it out and presenting it; this was held an infringement, overruling Keene v. Kimball, 16 Gray,

Rev. Sts. § 4952.

The copyright is to be good for twenty-eight years, with the right of renewal for fourteen years more.1 And any person who, without consent of the owner of the copyright, obtained in writing signed by two or more witnesses, shall print, publish, or import any book, or knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof, and be liable in damages for the act.2

To the author of copyrighted matter thus belongs the exclusive right to take all the profits of publication which the sale of the copyrighted matter may produce. And the author's exclusive right extends to the whole copy, and, in a sense, to every part of it. It follows that an infringement of a man's copyright may be committed (1) by reprinting the whole copy, verbatim; (2) by reprinting, verbatim, a part of it; (3) by imitating the whole or a part, or by reproducing the whole or a part with colorable alterations or disguises, intended to give to it the character of a new work; (4) by reproducing the whole or a part under a colorable abridgment, not fairly constituting a new work.

With regard to each of these forms of infringement, it is to be observed that the question of intention does not enter into the determination of the question of piracy. The question is one of property, analogous to cases of trespass or conversion; the exclusive privilege which the law secures to authors may be equally violated whether 1 Id. §§ 4953, 4954.

2 U. S. Rev. Sts. § 4964. The author has property at common law in his manuscript. Wheaton v. Peters, 8 Peters, 591, 657. (As to letters, see Perceval v. Phipps, 2 Ves. & B. 19.) But copyright is a matter

of statute purely. Id.; Albert v. Strange,

Macn. & G. 25. The

author of class-room lectures will be protected at common law against unauthorized publication. Caird v. Sime, 12 App. Cas. 326.

Clement v. Maddick, 1 Giff. 98.