CLIFFORD, Circuit Justice.
The proposition of the defendants is, that the sale of the machines implies the right to use the same, and that, when the needles were worn out, so that the machine could not be operated, it carries with it the right to manufacture new ones as the necessary means to enable them to enjoy the right of use implied, by the purchase. Take the question as stated, and it is certainly one of importance, and one which deserves to be carefully considered. Analogous questions, however, have several times been presented to the supreme court, and the views of the court, as expressed in those cases, will aid very much in reaching a right conclusion as to the rights of the parties in this controversy. An intelligent discussion of the question requires that the distinction between the grant of the right to make and vend the patented machine, and the grant of the machine with the right to use it, should be kept constantly in view. Such a question first came before the court in the case of Wilson v. Rousseau, 4 How. [45 U. S.] 646, where it was much considered, and it was generally conceded that the true distinction was there maintained, but it must be admitted that there are some expressions in the opinion of the court not quite satisfactory. Subsequently the same question was again presented to the same court in the case of Bloomer v. McQuewan, 14 How. [55 U. S.] 549, which places the question upon its true foundation. Patentees acquire the right under a patent to exclude every one from making, using, or vending the thing patented without their permission, and they acquire nothing more. When the patentee sells the exclusive privilege of *247making, using, or vending it for use in a particular place, the purchaser buys a portion of the franchise; but the interest he acquires necessarily terminates at the time limited for the continuance of the patent, unless it he otherwise specially stipulated in the contract But the purchaser of the implement or machine, for the purpose of using it in the ordinary pursuits of life, stands on different grounds. When the patented machine rightfully passes from the patentee to the purchaser or from any other person by him authorized to convey it, the machine is then no longer within the limits of the monopoly. Then the machine so sold passes outside of the monopoly, and is no longer under the protection of the patent act. Redress, in such cases, in case of injury, must be sought in the courts of the state, according to the laws of the state, and not in the federal courts, under the special jurisdiction conferred for the protection of patent rights. Repeated decisions of the supreme court have laid down this doctrine, until it cannot any longer be regarded as an open question. Chaffee v. Boston Belting Co., 22 How. [63 U. S.] 217; Bloomer v. Millinger, 1 Wall. [68 U. 8.] 351. Able counsel, in the case last named, desired the court to qualify the previous decisions upon this subject; but the unanimous opinion of the judges was opposed to the suggestion, and held that such a purchaser may continue to use the machine until it is worn out, or he may repair it or improve upon it, as he pleases, in the same manner as if dealing with property of any other kind. [Crane v. Price,] Webst. Pat. Cas. 413, note p. Great care must, however, be observed in applying that rule to the present case. Undoubtedly both the machines and the needles purchased by the defendants fall within the rule. The defendants may repair them or improve upon them as they please, so that they do not infringe any patent right, because the machines and the needles, having paid the royalty imposed under the patent act, are no longer within the limits of the monopoly. These articles have become private, individual property, not protected by the laws of the United States, but by the laws of the state in which the property is situated. The indubitable right of the defendants is to repair or improve the articles as long as they will last, but they cannot make new ones, nor can they, in the exercise of their right to repair the old ones, infringe another man’s patent. Right to repair is limited by the same rules that operate in the repair of other property. The owner may repair, but he cannot appropriate the materials belonging to another man, in effecting the purpose. Purchasers in this case may repair the needles they purchased, but they cannot manufacture new ones, without license. Reference is made to the case of Wilson v. Simpson, 9 How. [50 U. S.] 123; but a careful examination of the case will show that it affirms the very rule here maintained. When we speak of the right to restore a part of a deficient combination, we mean, say the court, the part of one entirely original, and not of any other patented thing, which has been introduced into it to aid its intended performance. The cutters and knives, in that case, were not subject to a patent, and of course the respondent had a right to use them as materials to repair his machine; but unfortunately for the defendants in this case, the needle is subject to a patent, and in making and using it they have infringed the right of the plaintiff. '
[NOTE. “Patented implements or machines sold to be used in the ordinary pursuits of life become the private individual property of the purchasers, and are no longer specifically protected by the patent laws of the state where the implements or machines are owned or used. Sales of this kind may be made by the patentee with or without conditions, as in other cases; but where the sale is absolute, and without any conditions, the rule is well settled that the purchaser may continue to use the implement or machine purchased until it is worn out, or he may repair it, or improve it as he pleases, in same manner as if dealing with property of any other kind.” Mr. Justice Clifford, in Mitchell v. Hawley, 16 Wall. (83 U. S.) 544. See, also, Adams v. Burke, Case No. 49, note, and same case on appeal in 17 Wall. (84 U. S.) 453; Nixon v. Paper-Bag Mach. Co. 105 U. S. 771; Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. Rep. 244.]
[Patent No. 6,025 was granted to J. Hibbert, January 9, 1849, and was judicially construed in Aiken v. Dolan, Case No. 110.]
In view of the whole case, we are clearly of the opinion that there must be judgment on the verdict.