Hugo Black

“ In the absence of suits like this how could a businessman even suspect that he might be infringing a patent by marketing an unpatented and unpatentable part of a combination like this fabric top? It has long been settled with respect to combination patents that the monopoly rights extend only to the patented combination as a whole and that the public is free to appropriate any unpatented part of it, 'however important.' Special Equipment Co. ”

“ One royalty to one patentee for one sale is enough under our patent law as written. And this proposition can be stated with knowledge that there is not a single sentence, clause, phrase or word in the entire legislative history of the 1952 recodification which could have led Congress to believe that it was being asked by means of the provisions enacted to enlarge the scope of a patentee's exclusive right to 'make, use, and vend' the thing patented. ”

“ But in the absence of such a separate patent, which in this case would presumably be some sort of patent on the utility of the shape of the fabric, the public has the right to make, use and vend each part subject only to the established limitation of contributory infringement: that a part may not be knowingly supplied for use by an unauthorized person in a new making of what is in effect the whole combination. ”

“ I have an idea it would greatly surprise and shock the owners of convertible automobiles throughout this country to learn that there is a serious contention made that if they buy a new fabric to replace the worn-out fabric on their convertible top, loose legal formulas like those suggested by my Brothers HARLAN and BRENNAN can be applied to make them liable for treble damages, attorneys' fees and heavy costs. ”

“ And surely the scope of a patent should never depend upon a psychoanalysis of the patentee's or purchaser's intentions, a test which can only confound confusion. [7] The common sense of the whole matter is, as recognized in the Wilson case and again in the opinion of the Court today, that in none but the most extraordinary case-difficult even to imagine will a court ever have to invoke specially contrived evidentiary standards to determine whether there has actually been a new 'making' of the patented article. ”

“ I put the question as one of direct infringement because I agree with the other three opinions in this case that the petitioner Aro Manufacturing Co. here who cut out and sold fabrics to replace worn-out covers in patented automobile tops can be guilty of contributory infringement only if automobile owners who buy the fabrics and use them in their own cars are themselves guilty of direct infringements and liable for treable damages. ”

“ Everyone knows that this patented top is likely to last as long as the car itself if it is repaired from time to time. An accident might wholly destroy the entire top and then it might have to be replaced by a new one, which if done without the patentee's consent would of course be an infringement. ”

“ But businessmen are certainly entitled to know when they are committing an infringement. It is for that reason that the patent statutes require applicants to define with particularity and claim without ambiguity the subject matter which is regarded to be an invention. ”

“ Such a contention would seem little short of fantastic to me, and the same is true as to replacement of the fabric.
This case is of great importance in our competitive economy. The record shows that petitioner is but one of many small business enterprises filling a useful place in manufacturing the comparatively smaller parts of larger products like automobiles. It is quite right and in keeping with our patent system that small business enterprises should no more than large enterprises be allowed to infringe the patents of others. ”

“ The test applied in the opinion of the Court today will not confuse, is in accord with our prior decisions endorsed by Congress and, most important, is in keeping with the general purposes of this Nation to retain an economy in which competition is a general law of trade except where actual 'Discoveries' have been made. ”

“ For example, there should be no attempt to decide whether there is a making by comparing the time that the different elements of such a patent normally will exist if let alone. The owner is under no obligation to let them alone. Every owner has the right to repair and patch each part of the property he bought and paid for in order to make it last as long as he can. ”

“ In this day of advanced technology and mechanical appliances upon which so many people depend, this wise policy against permitting patentees to expand their control of commodities after they reach the hands of bona fide purchasers is all the more important. ”

“ Simpson disposed of this question, saying that ' (s) ince Wilson v. Simpson, 9 How. 109, 123, 13 L.Ed. 66, it has been the established law that a patentee had not 'a more equitable right to force the disuse of the machine entirely, on account of the inoperativeness of a part of it, than the purchaser has to repair, who has, in the whole of it, a right of use." 263 U.S. at page 101, 44 S.Ct. at page 32. Like the bands of gelatine in Heyer, the fabric in the present case is a common article of commerce, and also like the gelatine it has to have a special form to fit into the combination. ”

“ Rich well knew, 'the very thing' which is invented in any combination patent is the combination itself and not any unpatented component part of it-in this case, the whole convertible top, not the fabric used in it.↑ Cf. ”