302 U.S. 458 (1938), 208, Leitch Manufacturing Co. v. Barber Company

Docket Nº:No. 208
Citation:302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371
Party Name:Leitch Manufacturing Co. v. Barber Company
Case Date:January 03, 1938
Court:United States Supreme Court

Page 458

302 U.S. 458 (1938)

58 S.Ct. 288, 82 L.Ed. 371

Leitch Manufacturing Co.


Barber Company

No. 208

United States Supreme Court

Jan. 3, 1938

Argued December 14, 1937




1. The owner of a patent for a process for curing concrete by the use of a spray of bituminous emulsion, an unpatented article of commerce, cannot enjoin as a contributory infringer a competing manufacturer who sold bituminous emulsion to a road contractor who used it in practicing the patented method. Pp. 460, 463.

Page 459

2. A patent may not be used as a means of obtaining a limited monopoly of unpatented material. Carbice Corp. v American Patents Corp., 283 U.S. 27. P. 463.

3. The rule of the Carbice case, supra, is applicable whether the patent be for a machine, a product, or a process, and whatever the nature of the device by which the owner of the patent seeks to effect such unauthorized extension of the monopoly. P. 463.

89 F.2d 960 reversed.

Certiorari, post, p. 673, to review a decree which, upon appeal from a decree dismissing the bill in a suit for contributory infringement of a patent, 14 F.Supp. 212, directed the District Court to enter a decree adjudging the claims in issue valid and infringed and awarding an accounting.

BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The question for decision is whether the owner of a process patent may by suit for contributory infringement suppress competition in the sale of unpatented material to be used in practicing the process.

The Barber Company brought, in the federal court for New Jersey, against the Leitch Manufacturing Company,1 this suit to enjoin the alleged contributory infringement

Page 460

of patent No. 1,684,671, dated September 18, 1928, by selling and delivering bituminous emulsion to a road builder, knowing that it was to be used in Newark in accordance with the method defined in the claims of the patent. Besides denying the validity of the patent, this further defense was interposed. It was insisted that the suit could not be maintained, even if the patent were valid, because to do so would give a limited monopoly of an unpatented staple article of commerce. The following facts were proved or admitted.

The Barber Company and Leitch Manufacturing Company are competing manufacturers of bituminous emulsion, an unpatented staple article of commerce produced in the United States by many concerns and in...

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