38 HARVARD LAW REVIEW. be had as against the individual who made a part of the infring- ing combination, even if his wrong intent were confessed. The court in Wallace v. Holmes alluded to this phase of the situa- tion and disposed of the question of conspiracy by holding that there existed no necessity whatever for joining as defendants the persons who received the burners from the defendant and made them effective by adding the chimney. The rule in Wallace v. Holmes soon met with the approval of the First Circuit, Judge Shepley saying in Saxe v. Hammond : ^ — " There can be no doubt as to the soundness of the conclusions of the court in that case, or the cogency of the reasons given by the learned judge in his opinion." Presently there arose a case^ in which the facts were clearly distinguishable from those in Wallace v. Holmes in their specific character, although in the broader view they have something in common. The complainant sued on his patent for a method of supplying towns with water. The condition of things is set forth in the opinion of the court (Wheeler, J.) : — "It has been urged in argument, that the defendants only make and sell the Flanders pump, and that they do not infringe the plaintiffs patents, although their purchasers may have infringed by putting them into systems of water works. If all they did was to make and sell these pumps merely, probably they would not infringe by that alone. But the answers and proofs go beyond this. Flanders, in his testimony as to what works they have put up, does not limit what they did to making and selling the pumps merely. The effect of the whole clearly is that they participated and concurred in putting in the whole, by furnishing the pumps for that purpose ; and this is sufficient to make them infringers." While Holly v. Vergennes Co. is cited usually among the cases of contributory infringement, analysis of the facts set forth in the above statement seems to show that the defendant did more than furnish pumps with knowledge and intent that they should form part of a water-supply system which infringed complainant's pat- ent. The defendant ^^participated and concurred in putting in the whole." If the patent in suit, though called a patent for a " method," was really a patent for an apparatus, then the defend- 1 I Holmes, 456, 458.
- Holly V. Vergennes Machine Co., 9 Blatch. 327.
