Oliver Wendell Holmes, Jr.

“ It did not appear that the defendants made or sold baking powders as such, but the New Jersey company did make acid phosphates for baking powders and other purposes, and the New York company sold the great part of its products. The plaintiff contended that this acid phosphate had the characteristics described in its patent, and was made and sold for use in baking powders, and that the manufacture and sale were an infringement of its rights. ”

“ All the courts agree that the privity of the New Jersey corporation was not made out. Probably all, and at least the circuit court of appeals and the circuit court for the third circuit (148 Fed. 862) , agree that, if Clotworthy's testimony is excluded, infringement is not proved. We should not revise this finding of both courts on the facts, and therefore it follows that the New Jersey decree must be affirmed. The evidence on both sides is discussed in 148 Fed. ”

“ We may reject as extravagant the suggestion that the contribution may have been made from charitable motives, and assume that it was induced by reasons of business and indirect interest; but it was not shown that, as between the present and former defendants, either Hygienic Company had the right to intermeddle in any way in the conduct of the case. The Hygienic Companies would have been glad to see the Rumford patent declared void, and were willing to pay something to that end. ”