New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-01-11
NEW POINT IN TRUST SUIT
Undue Proportion Of Trade Vlo-
Iates Sherman Law, Is Claim.

Washington. Jan 1o.--The fate OF the
United Shoe Machinery Company Tonight
rests with the Supreme Court. All day the
court listened to arguments as TO whether
the acts of Sidney w. Winslow and his
four associates in organizing the com
pany and in requiring the shoe manufact-
urer who leased any Of their machines
TO use none of the independent ma
chimes constituted violation of the Sher-
man antitrust law. The federal court OF
Massachusetts had held that they did not
and had annulled an indictment against
the officials.
on behalf Of the government Solicitor
General Bullitt advanced for the first time
the farreaching argument that mere
undue proportion" of a trade combined
into one hand constituted violation OF
the Sherman antitrust law.
Mr.. Bullitt said the case differed from
any other ever before the court because
the businesses combined were non-com-
petitive The point Of the government was
that an undue proportion" of the shoe
machinery trade had come into one hand.
Mr.. Bullitt contended II was not necessary
10 determine when a proportion Of any
business became so large as to be "un-
due" but that certainly so per cent was
an undue proportion. He referred 70 the
Swift beef case as authority for hold
ing that 60 per cent was too large pro-
portion.
But in that case those who combined
were competitors" interrupted Chief Jus
tIce White. do you mean TO contend that
,rere etze violates the law"
Not mere size in dollars, but size
which is an undue proportion"
Near the conclusion OF the days arsn-
ment Chief Justice White remarked that
Attorney General Wickersham expressly
disclaimed taking such position In the
recent Tobacco case. The Solicitor GEN.
eral retorted that he did not consider
that precluded the government taking the
position In a case where no unfair COM
petition was charged.
IF the present attitude OF the govern
ment is not correct the sooner business
men know II the better" declared Mr..
Bullet.
Charles r Choate, jr., and Frederick Z.
Fish, attorneys for the indicted officials.
were questioned as closely in regard 10
the tying clause" leases of machines as
Mr. Bullitt was in regard to his undue
proportion argument Mr.. Choate told
the court that the reason the defendants
had procured large proportion Of the
business was because their machines were
the best and were patented.
What was the occasion. then, for the
tying clause contracts II the trade would
come to you any way?" queried Justice
Pitney.
In reply Mr.. Choate said the patent
law gave the company an absolute
monopoly over the machines. and instead
Nof the leases being restraint Of trade,
they were in relaxation of lawful re-
straint.
Mr. Fish emphasized the point that the
undue proportion argument fell short
because the patent laws gave the com
pany a right TO possess 100 per cent Of
the trade.
"Of course il is the intent OF the patent
law that you shall restrain the trade
which is covered by your patent" inter-
rupted Chief Justice White but was II
the intention that you should restrain any
OF the trade covered by other persons
patents"
While Mr.. Fish was answering the Chief
Justice asked another question.
And isn't your argument of economic
combination into one plant destructive of
the whole patent law"
I'm what way?" asked Mr.. Fish.
Doesn't the patent law grant patents
TO one because 1t aims to stimulate others
10 invent?'
Yes"
Then if you allow three or four to
combine patents you take away the in
centye to patent"
Mr.. Fish did not agree. He said many
Improvements had occurred since the
merger