that "the sale of a patented article by an assignee within his own territory carries the right to use it everywhere, notwithstanding the knowledge of both parties that a use outside of the territory was intended." This principle has now been applied to a case in which the sale was made to a dealer who purchased for the purpose of making a business of selling the articles within the territory of another, and not merely for the purpose of using them there.
The question, as I have said, is one that has been much discussed in the Circuit Courts, and the decision in Adams v. Burke was not generally accepted as settling the law. The vigorous dissenting opinion of Mr. Justice Bradley, with whom Swayne and Strong, JJ., concurred, was thought by many of the Circuit judges to be sound in principle, and the injustice resulting from the application of the doctrine of the court to the cases in hand led them to distinguish and to doubt the decision, and to suggest that, if the question should be argued again before the Supreme Court the dissenting opinion would prevail. The decision, moreover, made a distinction between the right to use and the right to make and sell, and went no further than to declare that upon the sale of an article the sole value of which is in its use the purchaser acquired a right to use which was unlimited in place as well as in time.
In Hatch v. Adams, argued before Judge McKennan and Judge Butler,[1] in 1884, the question was whether one who purchased a patented article in New York from one who had acquired the right to sell there, and not in Philadelphia, could sell it in the course of trade in Philadelphia to dealers there. Judge McKennan said the patent act authorized a patentee to divide up his monopoly into territorial parcels, and to grant to others an exclusive right under the patent to the whole or any part of the United States, and that a grantee taking a limited right could not exercise it outside of his territory, nor grant to others the right to do so. The decision in Adams v. Burke, he said, was that the unrestricted sale of a patented article carries with it the right to its unlimited use and that the reason on which the rule rests involves a plain distinction between the right to use and the right to manufacture and sell an invention; and he came to the conclusion that, even in view of this case, a sale of patented articles, in the ordinary course
- ↑ Fed. Rep. 434, U. S. Circuit Court, E. D. Penn., Oct. 29, 1884. That Judge Butler took part in this case and concurred in the opinion appears from a remark in his opinion in Sheldon Axle Co. v. Standard Axle Works, 37 Fed. Rep. 791.
