concurring in the result.
I agree that the replacement of the top was “repair” and not “reconstruction,” but I cannot agree that the test suggested by my Brother Whittaker for determination of that question is the correct one. My Brother Harlan's dissent cogently states the reasons why I also think that is too narrow a standard of what constitutes impermissible “reconstruction.” For there are circumstances in which the replacement of a single unpatented component of a patented combination short of a second creation of the patented entity may constitute “reconstruction.” Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325; Davis Electrical Works v. Edison Electric Light Co., 60 F. 276; cf. Williams v. Hughes Tool Co., 186 F. 2d 278. These holdings applied the long-established standard for *363.determination of “repair” or “reconstruction.” Under that standard there is no single test to which all must yield; rather the determination is to be based upon the consideration of a number of factors. Wilson v. Simpson, 9 How. 109; Heyer v. Duplicator Mfg. Co., 263 U. S. 100.1 Appropriately to be considered are the life of the part replaced in relation to the useful life of the whole combination,2 the importance of the replaced element to *364the inventive concept,3 the cost of the component relative to the cost of the combination,4 the common sense understanding and intention of the patent owner and the buyer of the combination as to its perishable components,5 whether the purchased component replaces a worn-out part or is bought for some other purpose,6 and other pertinent factors.7
*365It is true that some decisions of this Court in patent misuse cases8 raised doubt as to the continuing vitality of this standard in actions such as this one for relief from contributory infringement. But the Congress swept away that doubt when it gave the standard statutory sanction in 1952.9 My Brother Whittaker's test that *366“[m]ere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property” plainly would not heed the congressional mandate. Instead Congress meant, as I read the legislative history of the 1952 Act, that the courts should recognize, in actions for contributory infringement, the distinction between components stated in Wilson v. Simpson, supra, the leading case in this field:
“The other constituent parts of this invention, though liable to be worn out, are not made with reference to any use of them which will require them to be replaced. These, without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such a combination. No replacement of them at intermediate intervals is meant or is necessary. They may be repaired as the use may require. With such intentions, they are put into the structure. So it is understood by. a purchaser, and beyond the duration of them a purchaser of the machine has not a longer use.” 9 How. 125-126.
Giles S. Rich, the chief draftsman of § 271 (c), when told that manufacturers of replacement parts for automobiles, tractors, and other machines had protested against the section in fear of being held contributory infringers under it, replied: “Whether or not they would be liable would depend on the facts in each particular case. And I think that the best way to clear that up is to take up section (c) and deal with the matter specifically and point out to you the limitations that are there, which have to be met before anybody is held liable, and then leave it to you to decide whether a parts supplier should be held liable or not, depending on the kind of a *367part he may be supplying. If the part he is supplying is in substance■ the very thing which was invented, it seems to me personally, that he is an infringer, and he should not be let off on some little technicality that there is something minor in the whole apparatus that he is not supplying.” Hearings, H. R. 3760, 82d Cong., 1st Sess., supra, p. 153. He added: “in each case you would have to look at the details and see what was invented, and in effect whether the alleged infringer is appropriating somebody else’s invention, or whether he is not.” Hearings, supra, p. 157.
However, I disagree with my Brother Harlan that we should refrain from making an independent application of the proper standard in this case because of the conclusion of both lower courts that the replacement of the top constituted “reconstruction.” I would suppose that “repair” or “reconstruction” is so far a question of law as to relieve appellate review from the restraints of Federal Rule of Civil Procedure 52 (a). See United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 598. In no previous case presenting the question of “repair” or “reconstruction” has this Court believed itself restrained from making an independent determination. Wilson v. Simpson, supra; Cotton-Tie Co. v. Simmons, supra; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U. S. 425; Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Heyer v. Duplicator Mfg. Co., supra. And here the error of the two courts below is manifest. The life of the top was approximately three years in contrast to the several times longer life of the other components of the combination. The top was replaceable at a cost of from $30 to $70 depending on the fabric; in contrast the cost of other elements of the combination was approximately $400. These considerations of themselves suggest that the replacement was mere “repair” of the worn component and not “reconstruction” *368of the patented combination. Surely they support the inference that all concerned knew that the fabric of the top would become weather-beaten or unable to perform its protective function long before those other components, not so exposed and more durable as well, wore out. Its perishable nature coupled with its fractional cost as compared to the whole combination and its ready replaceability all point to the conclusion reached here. And particularly persuasive, I think, that this replacement was mere “repair,” is the role of the top relative to other components in the inventive concept. Patentable novelty inhered not merely in the shape of the fabric; the record shows that a wiping arm which pressed the material in such way as to create a seal at the belt line of the vehicle played a significantly important role in the inventive concept. The claim for the combination is that it made possible an automatic top, made the top weathertight and prevented unauthorized access to the vehicle. The wiper arm, rather than the shape of the material alone, accomplished the inventive purposes of providing a top which was weathertight and prevented unauthorized access.10 The shape of the fabric was thus not the essence of the device and in all the circumstances it seems reasonable and sensible to treat the replacement of the top as “repair.”
I, therefore, think that the judgment of the Court of Appeals must be reversed, except, however, as to the relief granted respondent in respect of the replacements made on Ford cars before July 21, 1955.
The standard has been variously expressed. See, e. g., “Whether the bounds of legitimate repair have been exceeded must be determined upon the facts of each case as it is presented.” Morrin v. Robert White Engineering Works, 143 F. 519, 520. “In the absence of a crucial test to which all must yield, the only aid comes from various minor or incidental considerations, and their combined effect.” Davis Electrical Works v. Edison Electric Light Co., 60 F. 276, 280. “The right, in our view, must depend in every case upon the special facts of the case as they show the relation of the two classes of parts— those supplied and those remaining in the original construction — to the patented unit. . . . there might be a structure where the putting in of a certain number of new parts would be ‘reconstruction/ whereas the putting in of a smaller number would be ‘repair/ or even where the putting in of one new part would be reconstruction but the putting in of two or three would not be, depending in each case upon whether, after the replacement, the structure as a whole could reasonably be said to be a new structure or the old one.” Automotive Parts Co. v. Wisconsin Axle Co., 81 F. 2d 125, 127. “Each case, as it arises, must be decided in the light of all the facts and circumstances presented, and with an intelligent comprehension of the scope, nature, and purpose of the patented invention, and the fair and reasonable intention of the parties.” Goodyear Shoe Machinery Co. v. Jackson, 112 F. 146, 150. “The dividing line between repairs and a making over cannot be verbally located. What has been done can with more or less confidence be pronounced to be one or the other, but neither the one nor the other can be defined.” Hess-Bright Mfg. Co. v. Bearings Co., 271 F. 350, 352.
Wilson v. Simpson, supra; Heyer v. Duplicator Manufacturing Co., supra; Williams v. Barnes, 234 F. 339; Micromatic Hone Corp. v. Mid-West Abrasive Co., 177 F. 2d 934; Payne v. Dickinson, 109 F. 2d 52; El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., 81 F. 2d 782; Slocomb & Co., Inc., v. Layman *364Machine Co., 227 F. 94, affirmed, 230 F. 1021. In the Slocomb case the Court said, 227 F., at p. 98: “If . . . patented mechanism be composed of various parts and elements the most expensive of which have an average life of twenty years, and other parts or features of comparatively trifling cost are subjected in the operation of the mechanism to such wear as to require renewal or replacement within a period of a few months, or of a year or two, it would seem reasonable and sensible to treat such renewal or replacement as involving repairs in contradistinction to reconstruction.”
Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Davis Electrical Works v. Edison Electric Light Co., supra, “in certain stages of use the essence of a device, though in appearance only a small portion of it, may be lost, and its renewal amount to reconstruction.” Pp. 279-280. Morrin v. Robert White Engineering Works, supra, p. 519.
Heyer v. Duplicator Mfg. Co., supra; American Safety Razor Corp. v. Frings Bros. Co., 62 F. 2d 416; El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., supra; Slocomb & Co., Inc., v. Layman Machine Co., supra.
Westinghouse Elec. & Mfg. Co. v. Hesser, 131 F. 2d 406, 410: “Where the perishable nature of the parts are recognized by the patentee, and where the parts are adapted to be removed from the patented combination and, from time to time, replaced, replacement of such parts is repair and not reconstruction.”
And as regards indicia of an understanding see El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., supra; Slocomb & Co., Inc., v. Layman Machine Co., supra.
See Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Connecticut Telephone & Elec. Co. v. Automotive Equipment Co., 14 F. 2d 957, affirmed, 19 F. 2d 990.
Is the replaced part the dominant structural element of the combination? Southwestern Tool Co. v. Hughes Tool Co., 98 F. 2d 42; Automotive Parts Co. v. Wisconsin Axle Co., supra, p. 127: “if the new parts so dominate the structural substance of the whole as *365to justify the conclusion that it has been made anew, there is a rebuilding or reconstruction; and conversely, where the original parts, after replacement, are so large a part of the whole structural substance as to preponderate over the new, there has riot been a reconstruction but only repair.”
Has there been physical destruction of the combination from use of the component? Cotton-Tie Co. v. Simmons, 106 U. S. 89.
See, e. g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 669: “The result of this decision, together with those which have preceded it, is to limit substantially the doctrine of contributory infringement. What residuum may be left we need not stop to consider.”
35 U. S. C. § 271. The purpose of (c) of this section appears in the House Judiciary Committee Report, H. R. Rep. No. 1923 on H. R. 7794, 82d Cong., 2d Sess., p. 9. “The doctrine of contributory infringement has been part of our law for about 80 years. It has been applied to enjoin those who sought to cause infringement by supplying someone else with the means and directions for infringing a patent. One who makes a special device constituting the heart of a patented machine and supplies it to others with directions (specific or implied) to complete the machine is obviously appropriating the benefit of the patented invention. It is for this reason that the doctrine of contributory infringement, which prevents appropriating another man’s patented invention, has been characterized as 'an expression both of law and morals.’ Considerable doubt and confusion as to the scope of contributory infringement has resulted from a number of decisions of the courts in recent years. The purpose of this section is to codify in statutory form principles of contributory infringement and at the same time eliminate this doubt and confusion.” The legislative history makes it clear that paragraph (d) complements (c) with the view to avoid the application of the patent misuse doctrine to conduct such as that of the patent owner in the present case. See Hearings, H. R. 3760, 82d Cong., 1st Sess., Subcommittee of the House Judiciary Committee, 1951, pp. 161-162, 169-175.
This appears from the patent claims and from the testimony of respondent’s patent and engineering experts. The following representation was made in connection with amended claims: “The real invention is fastening the folding material considerably below the top of the tonneau and then using a wiping arm automatically operated by the bow structure for wiping the inside of the folding material as the top is raised and pressing it against the top of the tonneau.”