On Application for Rehearing.
The complainants file a petition for a rehearing of this case, on the ground that the court has failed to consider the use by the defendant of the name Underwood alone on its boxes containing typewriter ribbons wound upon typewriter spools, and also on the ground that the relief sought under the design patent, and under the mechanical patent, has not received a judicial interpretation in the face of the proofs presented.
This court fully considered the validity of the design patent, and held expressly that the design patent set out in. the bill of complaint is invalid. This court adheres to that opinion and decision. This court did not pass upon the validity of the mechanical patent as that was unnecessary, but did hold that there had been no infringement by the defendant of that patent assuming it to be valid. Neither the ribbon nor the spool upon which it is wound is patented. The two are not patented in combination. The spool is of trivial cost, and typewriter ribbons are wound upon spools of this character, and sold as a convenient method of passing them to the hands of the user. No charge, as a rule, is made for the spool itself. The purchaser if possible gets his ribbon wound upon a spool, and then simply places the spool thus wound in his typewriter and this saves time and the danger of inking the fingers. The typewriter itself is long-lived, and wears out scores of ribbons, and some spools. The spools last longer than the ribbons. The defendant makes typewriter ribbons, as it has the right to do, and it puts them upon spools, as it has the *417right to do. It makes these spools and ribbons of various sizes, as it has the right to do. It makes them of a size that can be used in the Underwood typewriting machines, and this court has held that the defendant lias a right to do this. The owner of a typewriting machine frequently needs to purchase in the open market a new ribbon or spool or both for use in his machine, and this court expressly holds that the owner of the machine has the right to purchase any ribbon upon any spool found in the market that will fit his machine, and is not compelled to purchase either a ribbon or spool made by the complainants or either of them. The ribbon and spool are peculiarly subject to wear, and it was contemplated by the seller of the typewriter that the purchaser should frequently change the ribbon and spool, one or both, and no license restriction is imposed. The replacing of the ribbon and spool is in the nature of repair, and, as these articles are not patented, the owner of the machine is not confined to the use of those made by the maker and seller of the machine itself. This case is within the principle expressly declared by the Circuit Court: of Appeals, Second Circuit, in Thomson-Houston Electric Co. v. Kelsey Railway Specialty Co. et al., 75 Fed. 1005, 22 C. C. A. 1, and the principle declared by the court in Goodyear Shoe Machinery Co. v. Jackson et al., 112 Fed. 146, 50 C. C. A. 159, 55 L. R. A. 692. The. typewriter ribbon and spool do not constitute a vital element nor a chief part of the patented device alleged to be infringed, but only an ordinary working part, and the use of the typewriter must work its early destruction, as it is especially subject to external forces, and is easily removed and replaced without any way affecting the identit)' of the machine or patented device, and it is a natural inference that it was contemplated by the patentee and by the purchaser and user of the machine that such part should be removed and replaced from time to time. The defendant has the right to make the ribbon and spool of a proper size to be used in the Under-ivood machine, and to sell the same to any purchaser. The complainants have no monopoly of either the spool or the ribbon or of both.
The complainants also contend that the court should not have considered the transaction between the defendant and Miss Jaeger in relation to the purchase of a typewriter spool and ribbon. It may be true that that purchase was made after this action was brought, but evidence ivas given of the sale and it was pressed upon the attention of the court that this showed infringement and showed what the defendant is doing and the necessity for an injunction, and this court considered it proper to consider the fact of this sale inasmuch as it constituted the strongest evidence in the case of infringement. It is true that one J. A. B. Smith, before the suit was brought, purchased of defendant a ribbon marked “1 Purple C. Underwood.” This ribbon was of the same character described. This court holds that the defendant had the right to make it and to sell it even if it knew" that the purchaser intended to use it in an Underwood typewriting machine.
Returning to the question of the use of the name Underwood by *418the defendant, this court held and holds that there is no evidence in this case sufficient to sustain a finding that the defendant ever used the name Underwood on its boxes containing ribbons and spools, or either of those articles, with intent to palm off on the public or on purchasers any ribbon or spool of its manufacture as an Underwood ribbon or spool, that is, as a ribbon or spool, or as a ribbon and spool, made by Underwood. The only purpose the defendant had in putting the word Underwood on the boxes was to indicate to its salesmen and to the purchasers that the ribbon and spool contained therein were suitable for use in the Underwood machine. There was no fraud intended or effected in the use of this name on the boxes. The boxes containing the ribbons and spools were so plainly marked and distinguished in other ways that the make of the ribbon and spool could not be mistaken, and there is no evidence in this case to sustain a finding that any person ever was deceived or misled, or that any confusion ever resulted.
This court intended to cover every question raised by the proofs and on the "argument. It certainly considered them all.
The application for a reargument is denied.