Chap. VII. By experiment. User. abroad, and afterwards imports it into the United Kingdom (†). But the making which is prohibited is a making for profit either direct or indirect, that is, a making calculated to interfere with the benefit which the patentee would otherwise derive from his invention (u). It is therefore no infringement to make the patented article by way of bona fide experiment merely. If a man makes things with a view of improving upon an invention, or with a view of seeing whether an improvement can be made, that is not an infringement. If there be neither using nor vending of the invention for profit, the mere making for the purpose of experiment ought not to be considered within the meaning of the prohibition, and if it were, it is certainly not the subject for an injunction (x). Mere possession of a patented article is not necessarily user, but acquisition, and possession of such an article for trade purposes constitutes user whatever the nature of the article may be (). Using or exercising the invention is an infringement, though the user may have been passive only and not active, and even though the user was merely during transit and England was not the final destination of the infringing article (z). At the same time Custom House agents who pass an infringing article through the Custom House are not liable to the patentee on the ground of user (a). An agent to be liable must be an agent in the using of the invention, and not merely a person who has something to do with the means by which the goods get from one place to another (b). Infringement by user may be negatived by showing that the user was by way of experiment only, but the Court will narrowly scrutinise such a defence to see that no profit was made (c), and where the experimental user is for the advantage of the (t) Gibson v. Campbell, 1 W. P. C. 631; Incandescent Gaslight Co. v. Brogden, 16 R. P. C. 179. (u) United Telephone Co. V. Sharples, 2 R. P. C. p. 31. (r) Frearson v. Loe, 9 C. D. pp. 66, 67. (y) British Motor Syndicate v. Taylor, (1901) 1 Ch. 122. (z) Betts v. Neilson, 3 Ch. 436, 439; British Motor Syndicate v. Taylor, 17 R. P. C. 189. (a) Nobel's Explosives v. Jones. 8 App. Ca. 5. (b) Ib., 17 C. D. 742, 743. person using the machine, even when pecuniary profit does not directly result, such user is an infringement. The use therefore of the invention for the purpose of instructing pupils in a business (d), or for the more economical management of a business (e), is an infringement. Further, the quantity made may be too considerable to be consistent with mere experiment (ƒ). The user of English patents by foreign vessels in British waters is regulated by the Patents Act, 1883, s. 43. To establish infringement by user, however, it must be shown that the infringer is using the invention for the same purpose as that claimed by the patentee. There is no infringement if the object of the patent is to produce one result and the object of the defendant is to produce another and quite different result (g). Chap. VII. The patent grant confers an exclusive right to vend the Sale. patented article. Therefore the mere seller who has not himself made the article, and who may even be ignorant of the fact that it is an infringement of a patent at all, is liable as an infringer (h); and the sale of an article in the making of which a patented product is an essential ingredient is an infringement (i). The sole right granted by the Crown includes a monopoly of the sale in this country of products made according to the patented process, whether made in the realm or elsewhere (k). Thus, the sale in England of articles made in France according to an English patent is an infringement of that patent (1), and it is immaterial that it was not known to the defendant that the article sold was made according to the patented process (m). It is equally an infringement even Chap. VII. Repairs. when such importation is immediately followed by exportation. after re-sale to a foreign customer (n), and though the goods are never in fact landed in the United Kingdom if they are brought for transhipment into British waters (o). But a foreign manufacturer who sells and delivers an infringing article outside the United Kingdom cannot be made liable as an infringer here, even if he so acts with knowledge that such article is bought for importation into England (p). A person who without licence offers for sale or exposes for sale a patented article is liable as an infringer even if no sale is effected, and so it would seem if the article is merely used as a sample (9). But the sale of materials, which may be used for making a patented article, to a person other than the patentee, even if the vendor knows they are to be used for such purpose in breach of the patentee's rights, is no infringement for which an action will lie (r). A sale of parts adapted for fitting together would, however, probably be held to be an infringement (s), and a person who contracts to put the ingredients together infringes the patent, even if he employs a sub-contractor to do part of the work (t). A vendor who invites his customers to use in an infringing manner the articles he sells is himself guilty of infringement (u). It is no infringement of a patent to merely repair a patented article. But if the process of repairing is carried so far as to result in what is really a new article made according to the patented invention, the person executing such repairs will be liable as an infringer (x). So, too, if repairing a patented article necessarily involves the introduction anew of some component (n) United Telephone Co. Sharples, 2 R. P. C. p. 31. V. (0) Nobel's Explosives v. Jones, 17 C. D. 721. (p) Badische Anilin, &c. v. Johnson, (1897) 2 Ch. 322; Saccharin Corporation v. Reitmeyer, (1900) 2 Ch. 659. (1) Oxley v. Holden, 8 C. B. N. S. 666; British Motor Syndicate v. Taylor, (1901) 1 Ch. 122. (r) Townsend v. Haworth, 12 C. D. 831, n. (8) United Telephone Co. v. Dale, 25 C. D. p. 782. (t) Sykes v. Howarth, 12 C. D. 826; Incandescent Gas Co. v. New Incandescent Co., 15 R. P. C. 81. (u) Innes v. Short, 14 T. L. R. 492. (x) Dunlop Pneumatic Tyre Co. v. Neal, (1899) 1 Ch. 807. Sect. 2. part, itself the subject of a patent claim; such repairing Chap. VII. can only be effected without infringement by some person holding a licence from the patentee of that component part (y). Where a patented article is lawfully made and sold, the Infringement by licensee. patentee licenses the use of the article in the hands of any future buyer, and such buyer is no infringer (2). But a patentee may by notice to a purchaser impose conditions which will have the effect of giving such purchaser a limited licence only, and where this is the case the use of the invention by a purchaser who exceeds the limits of his licence is an infringement (a). Foreigners using an invention within the United Kingdom By aliens. are liable for infringement, and it is no defence to prove that the infringer has only acted under the sovereign (b). orders of a foreign An infringement is none the less an infringement because By workmen. it is committed by workmen in disobedience to express orders to the contrary. If so committed in the course of their employment, the employer will be liable as an infringer (c). It is no answer to an action for infringement to show that Improvements. the article or process complained of is in fact an improvement on the plaintiff's patent, if the original invention has been taken. If the pith and marrow of the invention is taken, it is no excuse to say that you have added something or omitted something, even if the addition or omission be an improvement (). If a person discover a patentable improvement, he is not precluded from patenting his discovery; but if he cannot use his discovery without using the prior invention, he cannot put his discovery into practice during the term of the original patent without the licence of the original patentee (e). If Chap. VII. Sect. 2. Taking part improvements to a patent do not excuse its use, à fortiori, alterations which do not improve it will not do so (f). A clumsy imitation is none the less an infringement because it is an inferior copy (g). It is not necessary to constitute an infringement that the whole of the patent should be taken. Taking an essential part of the invention is an infringement. If part is taken, there is an infringement, however much it may be disguised or sought to be hidden (h). You not only have no right to steal the whole, but you have no right to steal any part of a man's invention (i). Where, however, the patent is for a combination merely, and none of the component parts are claimed separately, it is no infringement to take one of such parts, for parts which are not claimed are not protected (k). In considering whether a patent is for a combination only, it is not material to ask whether the word combination occurs in the specification (1). Although to infringe a combination patent it must generally be shown that all essential parts have been taken, yet the taking of a part only will be an infringement if the inventor claims not only the whole combination but also separate parts of it as independent entities (m). Where the patentee claims only a combination, the test of infringement is not whether all the component parts have been taken, but whether the essence of the combination as a whole has been taken. Therefore, any substantial union of the essential parts for the same object will be an infringement, even where all the parts have not been taken or where mechanical equivalents have been substituted for some of them (n). The mere fact that there are certain parts omitted |