The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1908-08-06
AN INTERESTING ouEscTioN IN
The LAW OF PATENTs.

| Dy tne supreme Court OF the United
States before the summer vacation is
an affirmance OF the judgments of the
Federal courts in New York city in.
a litigation known as the paper bag
patent cases.
The Eastern Paper Bag Company
is the owner of patent issued to
William Liddell for an Improvement
in paper bag machines for making
self-opening square bags. That cor
poration brought suit in equity
against the Continental Paper Bag
Company, alleging that it had in
fringed the patent and praying for
an injunction. The defendant de-
MED the alleged infringement and in
terposed an additional defense to the
effect that in any event the court
ought not to award the complainant
any relief by way Of injunction be-
cause the owner of the patent had
neglected to make use of it for many
years and because under such cir
cumstances it was contrary to equity
to suppress useful and established
| business.
The decision in the trial court was
against the defendant and the most
interesting and important question
considered and discussed in the opin-
ion of the Supreme Court of the Uni
ted States, which was written by Mr..
Justice McKenna, was the contention
that court of equity has no juris-
diction to restrain the infringement
of letters patent, the invention COW
cred by which had long and always
and unreasonably been held in non
use instead of being made beneficial
to the art to which it belongs"
1t appeared that the Eastern Paper
Bag Company had owned the Liddell
patent from April, 1896, and for seven
years had omitted either to manu-
facture any bags Hereunder or to
license others to do so. Having thus
refused to use the invention itself,
il was contended in behalf of the
Continental company that it would
defeat the express purpose of the
constitutional provision concerning
patents and of the patent laws en-
acted hereunder to permit the non
using owner to obtain the aid of the
courts to prevent others from MAX
ing use of the invention. Such
course" it was argued, had it been
pursued in the past, would have
blocked the road along which the
great historic inventions of the nine
teenth century have proceeded to
their present state of perfection.
The Federal Constitution empowers
Congress to promote the progress of
science and useful arts by securing
for limited time to authors and in
Ventors the exclusive right to their
respective writings and discoveries" -,
The non-user of an invention can
hardly be said to promote the pro-
gress of the useful arts, and hence
to restrain others from using It at
the instance of the owner who de-
clines to utilize 1t himself was de-
clared by the counsel for the appel
liant to be lending the aid of the
courts to defeat the policy of the law.
This view, although argued with
great cogency and force, has been re-
jected by the Supreme Court. Mr..
Justice McKenna points out that un-
der the patent law as it has been ex-
pounded by that tribunal in numer-
GUS cases an inventor receives moth
ing from the law which he did not
have before, SO that the only effect of
the patent is to prevent others from
manufacturing and using his inven-
ton. In the Bell Telephone case it
was said that the inventor could have
kept his discovery to himself, but
that Congress by legislation enacted
pursuant to the Constitution had
guaranteed to him an exclusive right
to it for limited time in order to
induce him to disclose it to the pub
lie. The purpose of the patent be-
ing merely to protect the inventor in
a monopoly, it is his absolute prop
erty. He may withhold the knowl-
edge of it from the public and he
may insist upon all the conditions
and benefits which the statute prom
ises to him who discloses to the pub
lie his invention" There was a per-
iod of about four years from 1882
when the patent law required alien
patentees to introduce their inven-
ton into public use in the United
States within one year from the is
sue of the patent. but the act of Con-
gress imposing this requirement was
repealed in 1886. This repeal is men
toned in the opinion as indicative of
the policy of Congress on the SUBJ
ject. 1t is also noted that in some
foreign countries the rights of pat
entees may be lost by non-user. a
fact of which Congress can hardly
be supposed to- have been ignorant.
Weight is given to these facts as in
dicatiye of the legislative intent that |
the right of an inventor to prevent
an infringement Of his patent shall
not be affected by his own omission
to make use of it.
In this conclusion all the members |
of the Supreme Court concurred ex-
cept Mr.. Justice Harlan. That dis
tinguished and able Judge disscnted |
from the prevailing opinion upon the |