from the obvious facts in the case and the efforts of the defendant to solicit sales by showing the operation of the whole patented article. The willingness of the defendant in this case to aid other persons in any attempts which they may be disposed to make toward infringement is also apparent. Its trolley-stands are designed to be used in the patented system and to be the means of enabling the trailing pole to perform its distinctive and novel part in the combination. It sufficiently appears from the defendant's advertisements and affidavits that it was ready to sell to any and all purchasers, irrespective of their character as infringers. A proposed concert of action with infringers, if they presented themselves, is fairly to be inferred from the obvious facts of the case, and an injunction order is the proper remedy against wrongful acts which are proposed or are justly to be anticipated. But the defendant says also that the order which was granted is capable of too sweeping an interpretation, because it has a right to supply purchasers who have acquired the right to use the patented combination with its trolley-stands, either by way of repair or because the stands which were furnished to them were not adapted to the needs of the cars upon which they were placed, and it invokes the principle which was stated in Chaffee v. Boston Belting Company, (22 How., 217,) as follows: If a person legally acquires a title to that which is the subject of Letters Patent, he may continue to use it until it is worn out, or he may repair it or improve upon it, as he pleases, in the same manner as if dealing with property of any other kind. The complainant, which is utilizing its patent-rights by the manufacture and sale of trolley-railroad equipments, and desires to compel purchasers to continue to supply themselves with its form of stands, replies that the defendant's sales are not for the purpose of repair, but are for the reconstruction of the patented combination, and that a reconstruction of a destroyed or worn-out combination is an infringement. This proposition is true, and examples of the cases to which it is applicable are found in American Cotton Tie Company v. Simmons (C. D., 1882, 507; 22 O. G., 1976; 106 U. S., 89) and Davis Electrical Works v. Edison Electric Light Co., (60 Fed. Rep., 276.) In the Cotton Tie case the continued use of patented ties, which consist of a band and buckle, was purposely destroyed by the purchaser by cutting the band after he had received the bale around which the tie was placed, and the parts were sold as waste material. A new purchaser bought the several parts, mended the bands, replaced the buckles, sold them to be used as ties, and was held to be an infringer. In the Edison case the reconstruction was equally extensive. The infringer made a hole in the bulb of an Edison incandescent electric lamp, in which the carbon filament had been worn out, put in a new filament having its ends cemented in platinum sleeves, fused a tube of glass into the open end of the bulb, exhausted the air, and sealed the bulb. Inasmuch as "the filament duly charged is the light-giving thing," the work of the infringer was the manufacture of a new lamp. The complainant, recognizing that the facts in these cases are not analogous to those in the record now before us, urges that in order to constitute reconstruction of a patented device it is not necessary that the structure should have been destroyed intentionally or that the vital and peculiar element of the invention should have been worn out by use, but that the substitution of an important member of a patented combination which was intended to be permanent in place of the corresponding member which had been accidentally broken or had been. worn out is reconstruction, and that there is a recognized distinction between such a substitution and the replacing of fragile members whose life is necessarily short. Reliance is placed upon the case of Wilson v. Simpson, (9 How., 108,) which involved the question of the interest which the owners of a patented machine had in it, after the expiration of the first term of a patent, where there had been a renewal and extension of it, and which has been sometimes supposed to establish the rule that the replacement by the purchaser of the parts of a patented machine which must from their nature be temporary is permissible, while in no event is the replacement permissible of a part which it was hoped would be permanent. The case related to the right of a purchaser of a Woodworth planing-machine to replace cutters which ordinarily had a life of only sixty or ninety days, and, as a necessity, the opinion dwells upon that fact; but the decision did not make it a sine qua non and did not intend to say that temporary cutters can be replaced and that an element intended to be permanent but accidentally broken in thirty days after it was purchased cannot be replaced. The distinction which the Court was endeavoring to point out, and which it thought was well illustrated in the Woodworth planer, was the difference between the repair or replacement of a single element of a combination and the manufacture of a new machine in place of one which had become useless. The court says: We admit, for such is the rule in Wilson v. Rousseau, (4 Howard,) that when the material of the combination ceases to exist, in whatever way that may occur, the right to renew it depends upon the right to make the invention. If the right to make does not exist, there is no right to rebuild the combination. But it does not follow, when one of the elements of the combination has become so much worn as to be inoperative, or has been broken, that the machine no longer exists, for restoration to its original use, by the owner who has bought its use. When the wearing or injury is partial, then repair is restoration, and not reconstruction. Illustrations of this will occur to any one, from the frequent repairs of many machines for agricultural purposes. Also from the repair and replacement of broken or worn-out parts of larger and more complex combinations for manufactures. In either case, repairing partial injuries, whether they occur from accident or from wear and tear, is only refitting a machine for use. And it is no more than that, though it shall be a replacement of an essential part of a combination. It is the use of the whole of that which a purchaser buys, when the patentee sells to him a machine; and when he repairs the damages which may be done to it, it is no more than the exercise of that right of care which every one may use to give duration to that which he owns, or has a right to use as a whole. This distinction is both natural and founded upon right reason and gives to the patentee all the benefits to which he is entitled by the grant of the patent. While it is not intended that a trolley-stand should be broken or should lose its useful capacity, either calamity may befall it, and the right to replace the injured part by a new stand from any person who can supply the article should be conceded by the owners of the patent. It is not intended to permit the unauthorized substitution of the vital and distinctively new part of an invention in place of one worn out by use, as the substitution of a new filament in an Edison incandescent lamp or the substitution of a new for an old burner in the Wallace case, supra; but the trolley-stand is not the vital element of the invention, though a portion of it is an element of the combination. It is the means, and in most cases the non-patented means, for there are numerous forms of these bases, by which the pole is permitted to perform its functions. The defendant also says that in order to obtain the use of an improved trolley stand purchasers from the complainant are sometimes willing to discard its stands and substitute another form which has its own advantages. For example, the trolley-stand which is sold by the defendant is said to be less elevated above the top of the car than the stand of the complainant, and therefore it is said that the Norwalk Street Railway Company found it necessary to change the stands which were furnished by the complainant because of the low bridges recently constructed by a steam-railroad company over the tracks of the street electric road. A refusal to permit such a substitution is equivalent to a declaration that the street-railway company cannot be permitted to improve its stands except by the consent of the complainant. If a purchaser from the complainant chooses, the day after his purchase, to substitute a stand which, is better made and better adapted to his peculiar needs, he has the right to do so; but it will be urged that such a permission opens the door to infringement and permits a spoliation of the conceded rights of the complainant. It does throw upon the defendant the duty of careful investigation into the objects of the purchasers of its stands and of an abandonment of indifference as to whether they are seeking to trench upon the rights of the owners of the patent, or else a liability to suffer the consequences of a violation of the injunction order. The order is directed to be modified, without costs of this court, by adding the words: It is not intended to enjoin the defendant against the sale of trolley-stands by way of replacement of broken stands or stands worn by use, or of substitution for trolley-stands previously sold by the complainant to purchasers from it, but this permission does not give authority to reconstruct or rebuild a combination which has been sold by the complainant. WALLACE, J.: This case presents, in my view, an utterly unwarranted attempt on the part of the complainant to enlarge the monopoly which it had acquired as the owner of the patents in suit and to dominate exclusively the manufacture and sale of articles which its patents do not cover and which others have a legal and moral right to make and sell. The preliminary injunction by which the defendants are restrained from making or vending their trolley-stands was granted without a particle of evidence that they had ever infringed any of the claims of the complainant's patents and, as I think, without the slightest evidence that they threaten to do so. They are as much entitled to make and sell their trolley-stands as they are to make and sell the rails, the poles, the wires, the screws, the paint, or any other article which may be required for use by those who own and operate electric railways in which the improvements covered by the patents of the complainant are utilized. The country is crowded with electric railways which utilize these improvements; but the improvements do not consist in the trolley-stand. They consist in various combinations of parts of which a trolley-stand in some form is one. These railways are generally owned and operated by corporations, a great number of which buy their outfit from the complainant, and thereby acquire the right to use the patented combinations during the life of the organized parts. Concededly they have a right to repair their trolley-stands, to substitute new ones for those old or worn out, or to substitute a better and improved kind for those originally bought of the complainant. The defendants have an equal right to make and sell the stands to such owners for that purpose. The injunction was granted upon the theory that a case of contributory infringement had been shown. The only evidence of contributory infringement consists in the fact that the defendants are making, advertising, and selling their trolley-stands to the public. That they are concerting with infringers with a view to assist them in appropri ating, without compensation, the inventions patented by the complainant there is not a particle of evidence. Being entitled to sell their article, they are under no obligation before selling it to inquire whether the purchaser intends to make an illegal use of it. Privity with a wrong-doer is not to be inferred from the exercise of a legal right. The man who sells a gun or a knife would be guilty of an impertinence if he should inquire of the purchaser whether he intends to use it legitimately, and is under no duty to do so. The same rule applies to one who makes or sells an article which is not patented, but which may be used by the purchaser to work an infringement of a patent if he so chooses. One who assists another to infringe a patent is of course a tort-feasor, and whether he is called a contributory infringer or merely an infringer is only a matter of nomenclature; but he does not assist or concert with another to infringe merely because he sells him an artiH. Doc. 354-33 cle which may be used to effect an infringement. In other words, participation in a wrong is not established by doing a lawful act without evidence of an unlawful intention. I think the order granting the preliminary injunction should be reversed. [U. S. Circuit Court-Eastern District of Pennsylvania, Third Circuit.] NATIONAL HARROW COMPANY v. HENCH & DROMGOLD. 76 O. G., 2011. 1. EXCLUSIVE LICENSE-ILLEGAL CONTRACT-RESTRAINT OF TRADE. An exclusive license for a consideration by a corporation to a person assigning to it his patent to manufacture and sell, as agent, upon his own account, subject to uniform terms and conditions, the corporation itself agreeing not to manufaeture, is part of an illegal combination and in unwarrantable restraint of trade. 2. ILLEGAL COMBINATIONS BETWEEN INDIVIDUALS. Combinations between a number of persons engaged in the same general business to prevent competition and maintain prices, being against public policy and illegal, the same principle, notwithstanding the patentee's exclusive control of his invention, is applicable in questions concerning patents. Messrs. Risley, Robinson & Love for the complainant. Messrs. Strawbridge & Taylor and Mr. John G. Johnson for the defend ants. ACHESON, J.: The plaintiff, the National Harrow Company, seeks an injunction restraining the defendants, Hench & Dromgold, from selling float spring-tooth harrows, harrow-frames, and attachments applicable thereto upon more favorable terms as to price to purchasers thereof than the prices stipulated in two license contracts annexed to the bill and a decree for the specific enforcement of said contracts and for an accounting at the rate of five dollars for each harrow, etc., sold in violation of the terms of said license contracts. Several defences are insisted on; but in the view I take of the case it will be necessary to discuss only one of them-namely, that these license contracts are in unreasonable restraint of trade and are part of an unlawful combination to control the manufacture of an important article of commerce, to destroy competition in the sale thereof, and maintain high prices. The National Harrow Company, a corporation of the State of New York-to whose contract rights and general purposes the plaintiff, a subsequently-created New Jersey corporation, has succeeded-originated in a written agreement between a number of leading and distinct manufacturers, under various United States Letters Patent of float spring-tooth harrows, whereby it was agreed that they should organize |