Suit by Albert T. Rowley against the J.F. Rowley Company and another. From the decree, both parties appeal. Modified and affirmed. See, also, 18 F.2d 704. Thomas M. Benner, Cornelius D. Scully, and Harold K. Brooks, all of Pittsburgh, Pa., for J.F. Rowley Co. and J.F. Rowley.
96. The resolution of this infringement issue hinges on the credibility of these two witnesses, for under the law if the defendants' version of the facts is true, they cannot be held to have infringed the patent by their use of the shim. United States v. Univis Lens Co., 316 U.S. 241, 249-50, 62 S.Ct. 1088, 86 L.Ed. 1408 (1942); Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500 (1894); J.F. Rowley Co. v. Rowley, 18 F.2d 704 (3d Cir. 1927). 97. Recall that Mr. Smiles testified that to his knowledge, IES and its predecessors were the only companies who manufacture or sell the spring-type shims.
With respect to the ordinary sale of a patented article by a patent owner or licensee, no restriction as to use or disposition, either in point of time or geographically, may be imposed upon the vendee, since the article "passes without the limit of the monopoly" upon consummation of the sale. Adams v. Burke, 1873, 17 Wall. 453, 84 U.S. 453, 456, 21 L.Ed. 700; Bloomer v. McQuewan, 1852, 14 How. 539, 55 U.S. 539, 549, 14 L.Ed. 532; Becton, Dickinson Co. v. Eisele Co., 6 Cir., 1936, 86 F.2d 267, 270, certiorari denied, 1936, 300 U.S. 667, 57 S.Ct. 509, 81 L.Ed. 874; J.F. Rowley Co. v. Rowley, 3 Cir., 1927, 18 F.2d 704; Jackson v. Vaughan, C.C.N.D.Cal., 1896, 73 F. 837, 839. In more recent language of the Supreme Court, "The first vending of any article manufactured under a patent puts the article beyond the reach of the monopoly which that patent confers."
However, when a person uses even his own name in a manner to create confusion between his business and that of the longer established business of another bearing the same name, the courts will interfere, and, while not depriving the new-comer entirely of the use of his name in his business, will circumscribe such use by words or phrases indicating clearly that the new-comer's goods do not originate with the older user. Brown Chemical Co. v. Meyer, 1891, 139 U.S. 540, 11 S.Ct. 625, 35 L.Ed. 247; Higgins Co. v. Higgins Soap Co., 1895, 144 N.Y. 462, 39 N.E. 490, 27 L.R.A. 42, 43 Am.St.Rep. 769; Royal Baking Powder v. Royal, 6 Cir., 1903, 122 F. 337; Howe Scale Co. v. Wyckoff, Seamans Benedict, 1905, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972; Goldwyn Pictures Corp. v. Goldwyn, 2 Cir., 1924, 296 F. 391; Tomsky v. Clark, 1925, 73 Cal.App. 412, 238 P. 950; J. F. Rowley Co. v. Rowley, 3 Cir., 1927, 18 F.2d 704. It should be added that in California a person may, without judicial proceeding, change his name, and acquire property and do business under it. Ray v. American Photo Player Co., 1920, 46 Cal.App. 311, 189 P. 130; In re Useldinger, 1939, 35 Cal.App.2d 723, 96 P.2d 958.