Page:Harvard Law Review Volume 10.djvu/32

6 Adams v. Burke from the right to use, and had been called a part of the franchise. Did the fact that the article had been sold permit the purchaser to sell it in those parts of the country in which this franchise was in another? The Supreme Court held that it did.

Judge Brown had then become a member of that court, and he read a dissenting opinion, in which the Chief Justice and Field, J., concurred. He conceded that the court was committed by Hobbie v. Jennison to hold that a vendee of a patented article has a right to make use of it anywhere, even though it was purchased for the purpose of being used in the territory of another; but he said: "We are now asked to take another step in advance and hold that a rival dealer, with notice of the territorial rights of a licensee or assignee, may purchase any quantity of patented articles of the patentee, and sell them in his own territory, in defiance of the rights of the owner of such territory. To this proposition I am unable to give my assent." The court, however, decided that, upon the doctrine of Adams v. Burke and Hobbie v. Jennison, "It follows that one who buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles unrestricted in time or place."

The result of these decisions is that the rights of assignees for specified parts of the United States, under assignments which are authorized by the statute, are without protection from the patent laws against the invasion of their territory by the use or sale of the patented articles purchased in other parts of the country, even though the purchase be made for the purpose of use or sale within the territory, and with notice of the rights of the assignees.

Whether such rights may be protected in any other way, the Supreme Court decline to express an opinion, and Mr. Justice Shiras, reading the opinion of the Court in Keeler v. Standard Folding Bed Co., said: "Whether a patentee may protect himself and his assignees by special contracts -brought home to the purchasers is not a question before us, and [is one] upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws."

It is certainly very important that protection of some kind should be given to the territorial rights which the patent laws allow to be created.