Page:Harvard Law Review Volume 10.djvu/34

8 selves be binding upon strangers who might purchase the article, nor would they create any direct obligation between the assignees of the patent for the various territories. The contract between the patentee and the assignee of one territory would not furnish a right of action against the assignee of another, nor would it give the assignee protection against the acts of purchasers who were not parties to the contracts. In order to give adequate protection it is necessary that there should be some obligation that will be binding upon and available to the assignees as between themselves, and will also affect purchasers of the patent rights, or patented articles, or at least such purchasers as bought with notice of the arrangements made with respect to the sale or use of the articles in the various territories.

The question is whether such obligations can be created, and how far they will reach, and in what manner they can be enforced. Suppose, for example, that a patentee has given exclusive licenses to several persons to sell within certain territories, and has taken from each licensee an agreement that he will not sell in the territory of the other. If the patentee himself, or any of his licensees, sell within his own territory to one who is known to be buying for the purpose of selling within the territory of another, and with notice of the agreements, is there any way of preventing the purchaser from selling the goods within the territories of the other licensees? The patent laws, under the decisions of the Supreme Court, afford no protection in such cases. Is there a remedy at law or in equity against the patentee, or the several licensees, or against the purchaser who buys with notice of the agreements?

The remedy of a licensee against the patentee depends of course upon the terms of the contract between them, but to what extent can the several licensees acquire rights as against one another, and as against the acts of purchasers from the others?

The Supreme Court, in Hobbie v. Jennison, while deciding that the patent laws afforded no protection in such cases, said: "It is easy for a patentee to protect himself and his assignees where he conveys exclusive rights under the patent for particular territories. He can take care to bind every licensee or assignee, if he gives him the right to sell articles made under the patent, by imposing conditions which will prevent any other assignee or licensee from being interfered with." There were no conditions nor restrictions