The Washington times., 1913-04-08
DECISION TOL|M|T
PATENTEE'S RIGHTS
Supreme Court to Find How
Far Maker May Dictate
Prices of His Goods.

A decision which will have more et-
feet on Mr.. and Mrs. Ultimate Con-
sumner than any in years, according to
those who are interested in the case.
will be handed down by the United
States Supreme Court before Thursday
in the case of Bauer & Co. and the
Bauer Chemical Company against
James O'Donnell. The case is the ques-
ton OF the right of the patentee of an
article to, under his patent rights, set
the ultimate price of the article.
James O'Donnell is a Washington
druggist and the appellants are the
manufacturers of "Sanatogen, a
patented medicine. The case comes
10 the Supreme Court of Appeals of
the District of Columbia Baker,
Sheehy & Hogan are counsel for
o'Donnell, and Prindle & Wright and
Frederick P. Fish, of New York and
Boston, are counsel for the Bauer
Chemical Company.
The question which the Supreme
Court is asked to decide is Has q
patentee the right to dictate the price
at which a full value purchaser of q
specimen of the patented article shall
sell it?''
Disregards Notice.
Prior to March, 1911, O'Donnell pur-
chased a lot of Sanatogen and in de-
nance of the written notice on the out
side OF the bottle sold it for less than
81 per bottle, which is the price at
which the manufacturers demand that
IL be sold. When the manufacturers
discovered that O'DonneH had cut the
price of the medicine they severed re-
lations with him and refused TO Sell
him more. O'Donnell then went TO
drug jobbers and purchased more of
the medicine and he was finally sued
for infringement on the patent under
which the medicine is manufactured
and sold.
O'Donnell, through his counsel. de-
clares that in cutting the price OF the
medicine he violates no patent law but
is well within his rights. He contends
that when the manufacturing company
sells 1t to the jobbers they have gotten
all the profit from il that they can GET
and 1t makes no difference to them
whether he sells It at 10 cents or $40.
He contends further that when the
manufacturers have sold the medicine
to the jobbers they have relnquished
all rights to it and it, becomes an un-
protected article of commerce.
Have Right.
The manufacturers assert that under
the patent law, which gives exclusive
rights to manufacture, vend, and use,
they have the right TO set the price
y hich the ultimate consumer pays.
They cite the decision in the case OF
Dick VS.. Henry, in which the Supreme
Court holds that the patentee of the
InimeoGraph has the right to dictate the
ink and paper TO be used in that ma
chine. They also cite the case of book
publishers, who, under copyright law,
may set the price az which a book may
be retailed.
Counsel for O'Donnell hold that the
case of Dick vs.. Henry does not cover
the Gaze because the profit on the MINI
eograph is largely through the sale OF
ink to its users and by this restriction
the manufacturer Is enabled to receive
greater profit on his invention.
4 point which affects the ultimate
consumer to a large degree In not only
this case. but cases all over the United
States. is that if the Bauer COMPANY
is upheld in its contention il will make
every consumer of the Sanato which
WAS sold at less than one dollar a CO.
infringer on the patent with Mr.. O'Don-
nell. The patent law. If II excludes 9TH
ers from the use of the medicine except
under certain conditions, would exclude
it's use down to the final consumption.
The law. If this is the case. can bs
made to apply to numberless cases all
over the United States. Frederick =.
Fish. chief counsel for the Gillette
Safety Razor Company, which is suing
O'DonnelI in a case almost exactly smi-
lar, has combined with Prindle & Wright
I'm the Sanatogen case. The razor case
viii be held in allegiance until the result
of the medicine case is heard.