(dissenting). In considering the question of infringement, claim 5 may be laid out of view, as it covers merely the function of the machine or combination of claim 35. It is more than doubtful whether the claim is not void upon its face, but assuming it to be valid, as must be done for present purposes, it is not infringed except by using- the combination or machine of claim 35. A sound record is one of the parts enumerated in claim 35. It is, however, only a subsidiary part of the machine. Its relation to the machine proper is analogous to that of the sheet of paper in a typewriting machine or the stalks of corn in a corn cutter. It is the thing which is to be operated on by the machine proper. The invention of the claim consisted in substituting a universal joint, or swinging arm, in lieu of a feed screw device, and thereby producing a new form of reproducing stylus for engaging with the record and everything else in the machine was old. This clearly appears by the opinion in the suit in which the validity of the patent was established. Victor Talking Machine Co. v. American Graphophone Co. (C. C.) 140 Fed. 860.
It is not questioned, and cannot be, that the plaintiffs in error were at complete liberty to make and sell such sound records as they did, provided they did not sell them to purchasers who had no right to use them in combination with the other devices enumerated in claim 35. They have been adjudged guilty of contempt because they have sold them, or threatened to sell them, to users of the so-called “Victor” machine which embodies the combination, and who purchased their *62machines from the Victor Talking Machine Company, the owner of the patent. If these purchasers were at liberty to remove a sound record which originally accompanied the machine, and substitute for it a sound record sold by the plaintiffs in error, they were not in-fringers; and plainly the plaintiffs in error could not be infringers by assisting the purchasers to do that which they had a right to do. The real question in the case, therefore, is whether the purchasers of the Victor machines infringe the patent by using in their machines the sound records manufactured by the plaintiffs in error.
The purchaser of a patented machine from the owner of the patent acquires the right to do what he may choose with the particular machine, or any of its parts, as freely as he could if it, or none of its parts, had ever been patented. Undoubtedly he cannot, after his machine has practically ceased to exist for any useful purpose, reconstruct it by reparation, nor can he then reconstruct it by disorganizing it and substituting as new parts the dominating and vital features of the patented invention. But no question of this kind is involved in the present controversy. The only question is whether he' can discard a part he does not care to use, and substitute another. When such a part is not the fundamental invention in the patented machine, I cannot doubt he is at liberty to do so. This was so decided by this court in the “trolley stand” case (Thomson-Houston Co. v. Kelsey Co., 75 Fed. 1005, 22 C. C. A. 1), and is not an open question in this court, unless it is proposed to reconsider .and overrule that decision. Fie is not under any implied promise to maintain the machine as an entity, and may do whatever he chooses with any of its parts, as fully as if there had’ not been a patent.
Let us consider from a practical standpoint what any other rule would lead to in a case like the present. The purchaser here has bought with his machine a sound record, or half a dozen sound records, each having the necessary grooves cut in it to enable him to reproduce for his own pleasure a particular piece of music. The record is a fragile thing which is to be inserted into the machine by the user, and must be adjusted accurately to the vibrating parts, and is to be removed when he wants to reproduce a different piece of music. Any slip of the hand will destroy it. Not only is this so, but its sound producing qualities are lost b}>- the contact of the needle which is vibrated in its grooves long before the machine proper is worn out, and generally early in its normal life. Whenever either of these things happens, a machine, which costs at least $17, is disabled unless a record like one which has been sold with it at the price of 35 cents, and which anj'body and everybody has a right to make, may be replaced in the machine in lieu of the useless one. If the owner of the patent stops manufacturing records, or no longer has in the market a record grooved like the one which has been destroyed, what is the purchaser to do if he has not the right to replace a record without the permission of the' patent owner ? The purchasers of the Victor machine cannot require the Victor Talking Machine Company to supply them with records, and can only procure them from it on such terms as it pleases to exact. If they are not at liberty to procure them elsewhere, the *63company can dictate how long they are to enjoy the use of their machines.
Such a rule of infringement as is adopted by the majority opinion, not only extends the monopoly of the patent owner to an unprecedented extent, but is subversive of the right of a purchaser of the patented thing to realize its fair measure of usefulness by making necessary reparations or changes by way of improvement.