INFRINGEMENT. A word used to denote the act of trespassing upon the incorporeal right secured by a patent or copyright. Any person who, without legal permission, shall make, use, or sell to another to be used, the thing which is the subject-matter of any ex isting patent, is guilty of an infringement, for which damages may be recovered at law by an action on the case, or which may be remedied by a bill in equity for an injunc tion and an account.
The manufacture, sale, or use of an inven tion protected by letters patent, within the area and time described therein by a person not duly authorized to do so. Rob. Pat. § 890.
Infringement is a mixed question of law and fact ; California Artificial Stone Paving Co. v. Molitor, 113 U. S. 609, 5 Sup. Ct. 618, 28 L. Ed. 1106. Whether a device is an in fringement is determined by the claims of the patent, and not by the actual invention ; Meissner v. Manuf'g Co., 9 Blatchf. 363, 5 Fish. 285, Fed. Cas. No. 9,397. There is no infringement unless the invention can be practised completely by following the specifi cations. An infringement is a copy made after, and agreeing with, the principle laid down in the patent ; and if the patent does not fully describe everything essential to the thing patented, no infringement will take place by the fresh invention of processes which the patentee has not communicated to the public ; Page v. Ferry, 1 Fish. 298, Fed. Cas. No. 10,662. Where the same advantages are gained by substantially the same means, there is infringement ; Wallicks v. Cantrell, 12 Fed. 790. The test is whether the defend ant uses anything which the plaintiff has in vented ; Crompton v. Knowles, 7 Fed. 199.
However different, apparently, the ar rangements and combinations of a machine may be from the machine of the patentee, it may in reality embody his invention, and be as much an infringement as if it were a servile copy of his machine. If the machine complained of involves substantial identity with the one patented, it is an infringement. If the invention of the patentee be a ma chine, it is infringed by a machine which in corporates, in its structure and operation, the substance of the invention,—that is, an ar rangement which performs the same serv ice, or produces the same effect, in the same way, or substantially the same way ; Sick els v. Borden, 3 Blatchf. 535, Fed. Cas. No.
12,832. A device may be an infringement though it be itself a new invention ; Zeun v. Kaldenberg, 16 Fed. 539. To obtain the same result by the same mode of operation con stitutes infringement ; Shaver v. Mfg. Co., 30 Fed. 68 ; and so where there is a mere for mal change ; Strobridge v. Landers, 11 Fed. 880 ; or variations in size, form, and degree ; Asmus v. Alden, 27 Fed. 684; Lull v. Clark, 13 id. 456.
An invention limited to certain forms is in fringed only by the use of those forms ; Toepfer v. Goetz, 31 Fed. 913.
Where the same result is accomplished, the same function performed, and the mode of operation is the same, a mere difference in the location of parts will not avoid in fringement ; 42 0. G. 297.
An improvement may be an infringement ; Brainard v. Cramme, 12 Fed. 621. An im provement and its original are separate in ventions, and the inventor of one infringes by the use of the other ; Royer v. Coupe, 29 Fed. 358 ; American Bell Telephone Co. v. Dolbear, 15 Fed. 448. It is, however, pre sumed that use under one patent does not infringe another ; Smith v. Woodruff, 1 Mac Arthur (D. C.) 459; and the grant of a sec ond patent is prima facie evidence that the inventions are different, and that the later patented invention is not an infringement of the former; La Baw v. Hawkins, 1 Bann. & A. 428, Fed. Cas. No. 7,960; American Pin Co. v. Oakville Co., 3 Blatchf. 190, Fed. Cas. No. 313.
To experiment with a patented article for scientific purposes, or for curiosity, or amusement, is said not to constitute infringe ment ; Poppenhusen v. Falke, 4 Blatchf. 493, Fed. Cas. No. 11,279, but this cannot be in variably true. To make and exhibit a device at a fair, but not for use or sale, is not an infringement ; Standard Measuring Mach. Co. v. League, 15 Fed. 390; nor is mere ex posure for sale; 4 A. & E. 251; nor advertis ing an invention; 19 0. G. 727; but the latter is strong evidence of infringement; 19 0. G. 727. To make an• article for sale abroad is an infringement ; Ketchum Harvester Co. v. Harvester Co., 8 Fed. 586.