It does not appear to be necessary for the alleged contributor to have actual knowledge that the action or device to which he is contributing is covered by a patent. The fact that devices made under the patent are duly marked "patented" probably serves as constructive notice to a contributory infringer as completely as to a direct infringer.

MAKING, USING, ETC. NOT NECESSARY. Since the cause of action against a contributory infringer is his wrong in inducing another to infringe or to break a contract, it follows that the contributor need not himself have done anything at all by way of making, using or vending the device covered by the patent. One who should induce another to infringe by mere verbal incitement and moral encouragement would undoubtedly be as fully liable to suit as though he had actively assisted by mechanical means. There is no lack of cases in which the defendant has been held liable without having himself directly infringed in any way. An example-notable because of the amount of popular discussion it evoked-is the case of Henry v. Dick Co.505 The complainant's patent covered a mimeographing device. One of the machines had been sold to Skou with the express limitation that it might be used only with ink made by the complainant. The ink itself was not patented. Defendant Henry sold ink to Skou with the undeniable intent that it should be used on the machine, in breach of the limitation. The defendant had perfect right to make, use and vend his ink, unrestricted by any patent monopoly on it. Its use by Skou, however, in contravention of his agreement with the they may be disposed to make towards 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." Thomson-Houston Elec. Co. v. Kelsey Elec. Ry. Spec. Co., 75 Fed. 1005, 1007.

505 224 U. S. I.

Dick Co., was held by the court to be an infringement of that company's patent, and the defendant was held liable as a contributor to such infringement on the ground that he had ininduced it.506

A somewhat different type of contributory infringement was the cause of action in Trent v. Risdon Iron & Locomotive Works, 507 An ore crushing mill had been erected which was held to be an infringement of complainant's patent. The defendant denied any liability for this infringement on the ground that he was neither owner nor instigator of it, that his sole connection with it was as architect and building contractor for hire. It developed on trial, however, that he had himself furnished the plans and specifications for the crusher. He was held liable as a contributing infringer. Many other cases may be found in which a defendant has been held guilty of contributory infringement although he did not himself actually make, use or vend the patented invention.

In summary of the whole matter of a patentee's rights under his patent, it may be said that the courts have protected him, not narrowly nor half-heartedly, but to the fullest extent possible under the statute.

§ 6. PRACTICAL VALUE OF VOID PATENTS

Even when an idea is of such character that the courts would in all probability refuse to hold it an invention, there is, never

506 The furnishing by defendant of unpatented fasteners for use on a patented button fastening machine, whose use had been permitted by patentee on condition that it be operated only with fasteners purchased from him, was held to be contributory infringement, in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 Fed. 288, 35 L. R. A. 728. Thomson-Houston Elec. Co. v. Ohio Brass Co., 80 Fed. 712, furnishing one part of a combination held contributory infringement. "They have infringed the process of Johnson because they supplied the apparatus adopted to employ Johnson's process with the intent that the plant should be or would be operated as that put in for the Genessee Fibre Co. It was therefore guilty of contributing to the infringement of the first claim of the Johnson patent," Johnson v. Foos Mfg. Co., 141 Fed. 73, 88; Leeds & Catlin Co. v. Victor Talking Machine Co., 154 Fed. 58.

507 102 Fed. 635.

theless, an undoubtedly very practical advantage in having it patented. As has been said, the Patent Office is not in position to examine the prior art except to the extent that it is covered by patents, and even to that extent the policy seems to have been to allow new patents wherever superficial difference appears. The Patent Office does not assume the difficult task of determining when apparent change is merely mechanical. A patent, therefore, of absolutely no legal value whatever, is not particularly difficult to secure, and gives the right to mark articles "patented." The ethics of doing this, unless the patentee really believes his idea of means to be an invention, the author does not discuss, but it is seldom that the most conscientious of would be inventors fails so to believe. The advantage of the "patented" mark is obvious when one contemplates the number of manufacturers who are paying small royalties "rather than stand the trouble and cost of even a successfully defended suit," and of others who refrain from manufacturing certain small articles, for the same reason. 508

508 The enormous total of royalties paid by the American League of Automobile Manufacturers to the owners of the "Seidon Patent," before it was declared ineffective in Col. Motor Car Co. v. Duerr, 184 Fed. 893, is an example. It is common rumor that the owners of the transmission patents on which the present association of automobile manufacturers is founded fear to sue the Ford Co. for infringement lest the patent be avoided. Yet the others are paying royalties rather than assume the expense of a fight.

Because our system of legal remedies does not provide for a "declaratory judgment" the owner of patent has not only protection if his patent be valid, but he has also an obnoxious means of annoying legitimate business even if his patent be probably void. The only way other persons, who desire to use his alleged invention, can find out whether his patent is valid or not. is to expend enough money in infringing to force him to bring suit. If his suit is sustained the infringer's loss in invested capital, to say nothing of damages awarded the patentee, may be tremendous. Thus the financial risk involved in ascertaining whether a dubious patent is really good, may make practically effective many an unjust monopoly. For a discussion of the desirability of some method of securing a declaratory judgment, see the article by E. R. Sunderland, in 16 Michigan Law Rev. 69.

CHAPTER X

509 66

DESIGNS

The statute provides,' "Any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law and other due proceedings had, the same as in cases of invention or discoveries covered by section fortyeight hundred and eighty-six, obtain a patent therefor. The Commissioner may dispense with models of designs when the design can be sufficiently represented by drawings or photographs. Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may, in his application, elect. All the regulations and provisions which apply to obtaining or protecting patents for inventions or discoveries not inconsistent with the provisions of this title shall apply to patents for designs." "Hereafter, during the term of letters patents for a design, it shall be unlawful for any person other than the owner of said letters patent, without the license of such owner, to apply the design secured by such letters patent, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or to sell or expose for sale any article of manufacture to which such design or colorable imitation shall, without the license of the owner, have been applied, knowing that the same has been so applied. Any person violating the provisions, or either of them, of this section, shall be liable in 509 R. S. $4829-31-33, and "Act of Feb. 4, 1887."

the amount of two hundred and fifty dollars; and in case the total profit made by him from the manufacture or sale, as aforesaid, of the article or articles to which the design, or colorable imitation thereof, has been applied, exceeds the sum. of two hundred and fifty dollars, he shall be further liable for the excess of such profit over and above the sum of two hundred and fifty dollars; and the full amount of such liability may be recovered by the owner of the letters patent, to his own use, in any circuit court of the United States having jurisdiction of the parties, either by action at law or upon a bill in equity for an injunction to restrain such infringement."

As the section providing for a patent is in the same phraseology precisely as the section510 providing for patents for the invention of an art, machine, etc., it is evident that the same inquiries and issues must arise in regard to design patents as come before the courts in other patent cases. It follows equally that the decisions should be arrived at upon the same principles and by the influence of the same factors.

DISTINCTION BETWEEN DESIGNS AND MANUFACTURES. The greatest difficulty in discussion involving designs, so far as the law and not mere fact is concerned, is to distinguish between a design and a manufacture or composition of matter. A design is broadly definable in its patent law use, as well as in common parlance, as the delineation or configuration of matter. It depends for its effect, for its distinction from anything else, upon arrangement of matter. Every design is necessarily constituted by the contour of substance or the relation of various substances, the relation of ink and paper for instance. A design, to be patentable, is undeniably artificial. In a certaint sense, and wholly proper use of the terms, a design is therefore both a manufacture and a composition of matter. In common parlance, the name of design is probably restricted to the idea of outline as projected upon a plane surface; the silhouette contour or arrangement, of matter. Even the "design of a church" and similar phrases convey the meaning not of three dimentional substance, but of planes, of flat outlines, which 510 R. S. 4886.