New-York tribune., 1912-03-12
PATENT DECISION MAY
AFFECT TRUST SUITS
Supreme Court, Four TO Three,
Upholds inventors Monopoly
in Selling Contracts.
WHITE POINTS OUT DANGER
Chief Justice in Dissenting Opin-
ion Says Law May Be Applied
to Non Patentable Articles
Without Limit.

w lbuOob
Washington. March II. A farreachlns
decision upholding the right of patentees
TO dictate absolutely how their patented
articles may be sold by retailers, and de-
clsr,ng legal the inventors monopoly" in
his selling contracts, was made by the SUI
preme Court of the United States to-day
i, was a divided court ruling. as against
this majority view announced by Justice
I.urton, three members of the bench-Cmel
Justice White and Justices Hughes ana
Iamar-dissented.
Oficials of the Department OF Justice
were not inclined to discuss the courts de-
cision or its application TO antitrust suits
Attorney General Wickersham and So
Hcitor General Lehman heard the decision
and regarded 1t as epoch-maNng' MI.
Lehman declined 10 make statement ana
Attorney General Wickersham was un"lh-
ing.
During the last two years the Depart
fnent Of Justice, in Its prosecutions unuei
the Sherman Law, has encountered more
and more the question of the rights OF
patentees Some officials OF the Depart
ment have predicted that the ANTITRUST
suits of the future would be fought along
these lines That question was lhVoiVeu
in the case against the electrical trust
now settled in favor of the government
and some officials think the same question
might be introduced in any antitrust suit
against any industrial combination
May Ask a Rshearins'
nocause of the sweeping importance of
the decision 70 the enforcement OF the
ha n a
rehearing may be asked to bring the aues-
ton before a full bench of justices Jus
tice Day did not participate, and the va
cancv caused by the death of Justice Har-
Ian has not been filled. though Chancellor
Pitney. of New Jersey, has been nominated
hut not confirmed by the Senate
Forsn,ost among the pending antitrust
suits which may now be affected are those
against the United Shoe Machlner! Coii
nsnv. the keystone Watch Company and
the so-called coaster brake trust scoio
ar more of Investigations now under way
by the Department of Justice. in Which cor
porations are claiming the rights or pat
entees to certain monopohes ana reS'ii0
tions, are vitaly affected.
Department of Justice officials oeheVe
the decision may throw out one feature OF
the case against the Keystone Watch COM
pany, relating to reselling prices In the
shoe Machinery Company case, In which
questions Of patent rights are involved al
though Il is admitted the company may
strengthen some portions Of its defence oy
the decision, the Department of Justice re-
CARDS those suits as far broader than the
usual antitrust suits involving patents be-
cause Of the governments allegations of
combination.
involved Sales of Supplies.
The case involved alleged infringement in
selling supplies for use on patented
rotary mimeograph- A notice on the ma
chine set forth that it was sold on the
restriction that IT was TO be used only
with supplies made by the patenting COM
pany.
In announcing the opinion Justice Lur-
ton said this conclusion resulted from the
proper construction OF the patent statutes.
The very object of this statute, he said,
was to give a monopoly to the inventor,
and the fact that he continues that mo-
hopoly in his contracts disposing Of his
articles by charging such price as he
pleases was not Illegal. II such conditions
jnterfered with public policy, he said, Con-
gress alone must change the patent law.
In his opinion Justice Lurton, for the
majority, said:
II patentee says 81 may suppress my
patent II will I may make or have made
devices under the patent but will neither
sell nor permit any one TO use the pat
ented things" he Is within his right and
none can complain.
But If he says Il viii sell with the right
to use only with other things proper for
using with the machine, and / will sell at
the actual cost Of machines to me. provid-
ing you viii agree to use only such arti-
cles an made by me I'm connection there
with" II he chooses to take his profit in
this way, instead OF taking 1t by the higher
price for the machines, has he exceeded his
exclusive right to make, sell ana use his
patented machines?
Alone Created the Market.
The market for the sale. of such articles
10 the users Of his machines. which by
such a condition he takes TO himself. was
market which he alone created by the max
ing and the selling Of the new invention
ink could have been sold by others for
nee upon machines embodying that inven-
ton. BY selling It subject 20 the Testric-
wiss restricted their legitimate market.
Chief Justice White, in dissenting. said
he did 50 because he hoped a dissenting
opinion might serve as an antidote to a
poison that might enter in the future into
millions OF transactions touching every
phase OF society. Again. he said, he hoped
to call attention TO the fact that this was a
question Of construction, and that IL untold
svils were not 10 follow Congress must act
The Chief Justice said that with a limited
patent the patent law as construed by the
majority could now reach out and by con-
tract include within the patent every con-
ceivable thing used in every American
household. The Chief Justice arralgned
the majority opinion as breaking all prece-
ients, the court in its past history never
having failed to do it's duty 90 the whole
people and to stand as the protector OF
every household.
Could Monopolize Anything.
With unusual earnestness the Chief Jus
tice said that now the patentes might be-
come a patent law unto himself, monopo-
lizing things not novel nor new. In en-
phasizing the extent to which the decision
would reach and how far already restric-
tions were placed on the sale Of patented
articles Chief Justice White told OF buying
razor recently.
when l got home / found had become
an infringer of patent. because l had
paid for the razor the price I had been
asked and nothing more" said he.
The only safeguard the country had pos
sessed against this increasing evil. he said,
had been the hope that the Supreme Court
would hold the restrictions void. AT least,
he declared the majority should have