Popular Mechanics Co. v. Brown

BAKER, Circuit Judge. This is an appeal from a preliminary injunction restraining appellant, publisher of the Popular Mechanics magazine, from contributory infringement of appellee’s patent No. 1,175,506, March 14, 1916, for a garage. Appellant’s offense consisted of publishing in the reading section of its August, 1916, number a picture in perspective of a garage and a 20-line general description (without plans and specifications) from which a sufficiently skilled reader might erect a structure embodying the idea of the patent; and the decree enjoined the circulation of that issue. But appellee had no monopoly of the news that he had obtained such a patent. Appellant’s real offense therefore was in publishing the [860] description without stating at the same time that the structure was patented. No proof is in the record that appellant either had built or was threatening to build a garage of the patented type. Consequently there was no basis for a finding of direct infringement, actual or impending. For one to be guilty of contributory infringement, there must be a direct infringement, existing or threatened — something to which to contribute. No proof was made that any reader had-erected or was about to erect such a garage; or that any reader was accustomed to avail himself of the instructive matter in Popular Mechanics beyond his fireside and easy chair; or that the bare possibility that there was somewhere a reader who some time might act upon the information was in truth a greater possibility than if the article had also stated that appellee had obtained a patent on the structure. „But at all events a possibility is not a threat. In our judgment, therefore, no basis existed for a finding of contributory infringement. Compare Luten v. Town of Lee (D. C.) 206 Fed. 904; Walker on Patents, § 407; Toppan v. Tiffany Car Co. (C. C.) 39 Fed. 420. The decree is reversed, and the cause remanded, for further proceedings not inconsistent with the opinion. Footnotes [1] oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes