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National Patent Council PHONES: Gar;y 2-9334 

11+34 West 11th Avenue, Gary, Ind. , SO Chicago 8-0853 

GARY, INDIANA, January 4, 1951 - The Board of Governors of National Patent Council b7 resolution here todq requested Supr-.e Court Justice Douglas to issue 

promptly to the press.a release correcting, as destructively misleading, statements of ~ - - -

his individual opinion, supported only by Justice Black, appended to the seven-man 

majority decision of the Supreme Court rendered December 4th in the now highly publicized A. & P. grocery-counter :merchandise handler patent case. 

In this case the majority decision held invalid a patent under which the Great 

Atlantic & Pacific Tea Company was sued tor infringement b7 the Supermarket Equipment Corporation. 'lbe patented device consists of an open-ended, three-sided, bottomless frame sliding on a rearward extension of the counter. Its purpose is to 

permit a custom.er approaching the cash register for service to deposit his merchandise within the frame while the cashier eerves the customer ahead of him. The load 

of •rchandise is then pushed ahead into position to be processed by the cashier, 

whereupon the open-ended, bottomless frame is slid back to its original position for 

reloading by the customer following. It is stated that the device adds about one 

third to the capacity of the caehier for serving customers. 

The majority opinion of the Supreme Court was that the patent was invalid 

because to conceive the device did not constitute invention. The lower U.S. courts 

all had held the patent valid. 

According to John W. Anderson, its president, "National Patent Council has 

taken no position with reference to the majority opinion of the Court. 'lbe Council's 

reeolution of tod~ reflects, on the part of its constituent manufacturer-members and 

patent law;yer advisory associates, respondi.ne: to the Council's recent poll on the 

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Januarr 4., 1951 

subject, aore than 99% agreement that Justice Douglas in this action baa pertoraed 

perhaps his greatest disservice to the Patent S7stea and to our incent1Te econOJV ot 

which that System is the prime catalTat. 

"Justice Douglas, in his repeated attacks upon our Patent 57stea, 'Which he has 

convinced Jl8IV' he would be haPW to destroy, has demonstrated an unusual capacit7 

tor putting into pmgent and quotable words, which appeal to reponara, adTerae 

st.at•ents supported o~ b;r wishful t.hinking,n Anclerson continued. 

'Iha resolution the Council adopted todq is ad.dressed to Justice Douglas and 

reads: R!OU &re respectfUl]i requested to CorreC-t promptJ¥~--b7 -st.atement-W the -

press, at least the most unfortunate or the several completelJ erroneous and demoralizing impressions tranBDlitted b:r the press and based upon ;your so-called concurring, but in significant f'act gratuitoualJ dissenting, opinion in the recent sevenman decision ot the Suprane Court or the United States, in the case ot the Great 

Atlantic and Pacific Tea Com.palJ1" versus Supermarket Equipumt Corporation, which 

decision held to be in"f&lid, tor lack of in'Valltion, U.S. Patent No. 2,242,408 on a 

merchandise handler tor use at counters ot retail stores. 

•'!he public press, based upon :rour stat•ent appended to the above-mentioned 

decision, made widespread editorial and other erroneous representations to the 

etf'ect that your said statements haw the status of' law supported b:r a decision of' 

the U.S. Supreme Court holding that the Constitution of' the United States does not 

authorize the issue by our Patent Office ot patents upon &n1'thing but revolution&17 

inTentions in purel.7 scientific fields. 

"Your stat•ent that an invention, to justify a patent, must 'E!!!!! !!!!!! !!! 

frontiers ,2l chmst:rz, physics, ,2 the~; !2 .!!!!! .! distinctive contribution 

!§!scientific knowled.ge,' followed b7 :rour statement that the invention '!!!! !212!. 

g,! !!,2h quality ~ distinction ~ masters g1, ~ scientific field ~ which ~ 

.falls ~ recognize ~ .!! .!!!. a.d.Tance, ' provides light in which must be broadly 

interpreted ;your statements that '.!! i!. .!!2l:. enough ~ !a article i! ne .!e :2!,!-

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!!!!• Jl!! Constitution never sanctioned. !h! patenting ,!!! gad.gets. Patents serve .! 

higher ~ - l!:!! advancmaent ~ science.• 

"Your statements have created widel.3', in the minds of those lUlintormed as to 

your minority status, the impression that our Patent System now has been in substance destroyed by decision ot our u.s. Supreme Court and that piratical manufacturers my- now proceed,without fear or penalty, to copy any mechanical invention 

that doel not rise to the dignity or a rewlutionary advancement in a basic science. 

11 Intensitied actiri.ties of predatory manufacturers looking toward copying patented inventions were noted within forty-eight hours after your statements were 

reported by the press. Consternation spread. by your statements within that vast al'lll1' 

of inventors normal.17 working diligentlT to pro'Yi.de, for the benefit of the public, 

1n"f8Dtions constituting usef'ul improvements in one or another of the ~iads of 

1 gad.gets• upon which our citizens re]Jr iD seeking, fraa hour to hour in their dai]Jr 

lives, health, food, shelter, transportation, communication, education, and other 

ad:vantages, presages a calamitoue relaxation ot that inventive effort, effort 

inspired by the inducements of our Patent System., which effort has been primariq 

responsible for the phenoaenal industrial ad'9'8rlcement ot our Nation and tor whateYer 

security it still J1JB7 comand. 

"Your statements have caused grave misgivings among manufacturers risking capital and effort to make a"f'&ilable to the public, 'Wlder promise ot protection by 

patents, gadgets ottering tu.rt.her ad.vantages to the public. 'lbese misgivings are 

based primariJ.1' upon the prospects of arrogant raids by cowists encouraged by your 

position rather than upon an;r Jliaccnception that your statements were found acceptable by the snen-un :majority ot the Court asnming responaibilit7 tor the subject 

decision. 

"We do not wish to impq 8D1' beliet on our part that your knowledge of the 

pract.ical. workinas oZ our eCODCJIV toward adTBDc•ent. has been sufficient to make 

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January 4, 1951 

readil.7 apparent to 7ou the destructive potential of your attt1.cks upon its prime 

catal.1'st, which is our Patent S)rst•. However, we do DlOst respecttull.1' request that 

7ou accept, from our position of more intiJM.te dail.1' contact with the realities within 

the sources of our strength as a Nation, our most sincere assurances that b7 correcting, through action above recomnended., the destructive impressions 7ou haft so inadvertently created, 7ou will have performed a distinguishing service to our citizens, 

who look upon 7our high office with traditional renrence and respect. 

"All this you may accomplish by- simply advising the press (a) that 7our statements were not sponsored bJ' the seven-man majorit7 or 7our Court in this instance and 

(b) that 7our statements have 01ll7 a minorit7 status and are not the law. 

"If 7ou care to add to your release, here suggested, some •pbasis upon the 

fact that the Constitutional provision to which 7ou have referred gives equal status 

to 1 science 1 and to 1 UBeful .ID.I, 1 you may add material.11' to clarification of the 

destructive contusion so inadvertentl.7 created. 

"You no doubt have been informed. that this Council represents smaller :manutacturers of the categoey responsible, in the aggregate, tor the deTel.opunt of most of 

the inventions found useful b7' the public, and responsible tor most emplo;ptent in 

Ind.utr,.. 

•Because ot the urgencies inwlved. n are releasing this resolution to the 

press, to which n respecttul.q suggest that you direct 8D7 ccmaent 70u ..,. de• 

ap:propr:late. 11 

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