Case Comment Case Comment
Townsend v. Haworth
citation(s): (1879), 48 L.J. Ch. 770n (C.A.), per Jessel, M.R.
copyright 1997 Donald M. Cameron
"No one has contended, and no one can contend, I should think, with any chance of success in a Court of justice that the vendors of those chemicals may not continue to pursue their chooses to buy them. No one has said, as far as I am aware, when I say "no one", I mean that no Judge has said, that the vendor of any ordinary ingredient commits a crime or an offence, or does even a wrong, if the purchaser coming to him says, "I want your compound, because I want to preserve my cloth from mildew, and you and I know there is a patent, but, still, I wish to try the question with the patentee." No one would doubt that the sale would be perfectly legal, and would not enable the patentee to complain with the effect of the conduct of the vendor of the chemical compound in the Courts of justice. But it is said that if the person who sells the compound goes a step further, and not only supplies it with the knowledge that it is to be used in the infringement of the patent, but says, "if you buy my compound of me I will indemnify you from all consequences", that makes him an actual infringer of the patent."
At p. 771
"He is prohibited from making, using or vending the prohibited articles, and that of course includes in the case of machinery the product, if I may say so, of the machinery which is the subject of the patent...But has anyone ever dreamt before this case that that extends to the component articles which enter into the patent? So far from that being the law, it has been decided that in the cases of what they call combination patents it is only the combination claimed that may not be used; other combinations in the composition of the patented article may be used....
That line of cases seems to show conclusively that the mere making, using or vending of the elements, if I may say so, which afterwards enter into the combination, is not prohibited by the patent, and if no prohibited, I do not see how I am to extend the patent laws to make a new prohibition. But it has been said, and the way it has been put does great credit to the ingenuity of the counsel, that, though all that may be very good law, if you show the vendor was merely using the infringer as his agent or partner, he will himself be an infringer, or, to put it into common language, if the infringer were mere cat's-paw of the vendor. that would raise a totally different question; that would raise the question who was the actual infringer. It is not the man who puts his hand to the machine who is the infringer; the mere workman employed is not the infringer. Of course I agree that you may pass the mere mechanic who puts the machine together, and get at this employer; and if it could be shown, or if it were shown by sufficient allegation, that the company intending to carry on business of making these cloths, knowing that the patent was valid, but being unwilling to incur the risk of action for infringement, set up Mr. Haworth to carry on the trade, supplied him with the material on which they got the real profit which arose from the patented article, and that he did not carry on the trade bona fide for himself, but on their behalf, a totally different set of considerations would arise, and it might well be they would be treated in this Court as the actual infringers, and not Mr. Haworth."
At p.771:
"It is necessary for the purpose of constituting the vendor an infringer to show that he has made himself a party to the infringement."
"Selling materials for the purpose of infringing a patent to the man who is going to infringe it, even although the party who sells it knows that he is going to infringe it and indemnifies him, does not by itself make the person who so sells an infringer. He must be a party with the man who so infringes, and actually infringe."
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