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taken out, yet he has not such a property as can be the subject of an infringement.'

The fifth section of the act of 1793, which section was repealed in 1800, described it to be an infringement to "make, devise, and use, or sell" the thing invented. There was some ambiguity in this description, which was cleared up in the fourth section of the act of 1800, in which it was provided that, "where any person, without the consent of the patentee, his or her executors, &c. first obtained in writing, should make, devise, use or sell the thing whereof the exclusive right was secured to the patentee by patent, such person so offending should forfeit," &c.

The act of 1836, by which all the preceding acts have been repealed, gives no description of what shall be an infringement, otherwise than by providing for damages in case of "making, using or selling" the thing patented, nor is any such description necessary, since the patent itself, in the form prescribed by that act, in terms grants to the applicant, "for a term not exceeding fourteen years, the full and exclusive right and liberty of making, using, and vending to others to be used, the invention or discovery." The form of

'Dixon v. Thayer, 4 Wash. C. C. R.

2 Section 14.

3 Section 5.

the patent, under the former law, granted to the patentee the exclusive right of "making, constructing, using and vending to others to be used." The change made by the law of 1836 is in dropping the word constructing, which was immaterial, since its meaning is comprehended in making.

And so the omission of the word devising, which was used in the act of 1793, in describing an infringement, is unquestionably an improvement, on account of its ambiguity; and because the only practical meaning that could be given it is comprehended in the word making.

Sec. II.-MAKING.

It has been held by Mr. Justice Story, that the making of a patented machine for use or sale, though it were, in fact, neither used nor sold, is an infringement, for which, however, only nominal damages can be recovered, but that the making merely for experiments or philosophical purposes is not an infringement.“

Sec. III.-USING.

A use of the patented article is a direct and unquestionable infringement. We are here speaking of

4 Whittemore v. Cutter, 1 Gall. R. 429.

the use of the thing itself, which is the subject of the patent, not that of its products. A patent is, as has been explained in its place, an exclusive right to the practice or use of a certain art, process, contrivance or principle, combined with, and embodied in, material substances. The art, contrivance or design, considered abstractly, is not itself patentable, or an infringement of a patent. It is only in its production, in combination with materials, that it is either patentable itself, or a violation of a patent right. In a patented instrument or piece of machinery, the subject of the patent exists, and is visible and tangible, and admits of being possessed and delivered distinctly, and independently of its products. But when a composition of matter is the thing patented, the subject of the patent is identified with its products, or rather a specimen of the product, or the only vendible thing which it is the object of the invention to supply, is, at the same time, a specimen of the invention itself. Whereas in the case of an instrument or machine, one object of the invention is to produce the instrument or machine itself, another to produce its products. The inventor of a loom may propose a profit on the sale of it, as well as on the sale of its products. So, again, a steam engine, like a loom, is invented to be used as an instrument until it is worn out; and in this respect, both differ from a pa

tent medicine and many chemical compositions, which are consumed or destroyed at once in the use.

Now, considering the use of the thing patented to be an infringement of the patent right, is there any difference in this respect between these different kinds of articles? Is it equally an infringement to use a patented medicine, which is destroyed in the use, or a nailmachine, loom or steam-engine, which will last a long time? The answer to this question undoubtedly is, that the use in either case is equally an infringement.

What, then, is the use; and who may be said to use the article? In the case of a patented paint, can the lessee, who occupies a house painted with the patented article, be said to use it? or can the hirer or purchaser of a chaise, varnished with patented varnish, be said to use the varnish? In either case we shall readily answer in the negative. One could not, with propriety, put to such a person the question, What paint or varnish do you use? The question can be properly addressed only to the person who selects and applies the article. He is the person who uses it. So, in case of a patented medicine prescribed, selected and administered to the patient by others without any act of his own; the doctor or the apothecary, and not the patient, uses the article, in the sense intended by the statute. It is otherwise in regard to lasting articles. A

cultivator uses a plough, and a manufacturer a loom, and so they, no less than the vendor, infringe the patent right.

We then come to a long series of patented improvements, which are, to a greater or less extent, incorporated with, or appendages to, other articles of which the subject of the patent is an ingredient or part; such, for instance, as a steam-valve. In these cases it certainly cannot be said that the person who uses the article to which the improvement is attached does not use the improvement; for this construction would deprive the greater number of patentees of all remedy for the use of their inventions, and leave them only to pursue the vendors, which would be, in effect, almost to repeal this part of the statute. Such an appendage. seems to stand upon the same footing, in this respect, as an article which may be used independently of others. The party who uses the principal thing uses the accessary; and seems to be liable for an infringement of the patent for it.

A mere contract to purchase the articles, produced by the instrument, is not a constructive use of it by the purchaser, within the statute."

A case of this description occurred in Maryland, in relation to Keplinger's instrument for the manufacture

This is the rule also in France, Renouard on Patents, c. 5, p. 214.

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