Page:Harvard Law Review Volume 10.djvu/43

17 TERRITORIAL RIGHTS IN PATENTED ARTICLES, IJ It may be objected that the effect of this, after all, is to impose restrictions upon the use and sale of articles of merchandise, and that such restrictions are inconsistent with the right of property in chattels, and that it is against public policy to permit personal property to be subject to restraints with respect to the place in which it may be used, and that it may be even an improper re- straint upon commerce between the States. We need not now inquire whether the doctrine of notice may be applied to the ordinary sales of personal property, and whether it is possible for an own^r to execute a contract with respect to any chattel in the ordinary course of trade which shall be binding upon all who take with notice of it. Questions of public policy would no doubt affect, the decision in such a case, but to apply the doctrine to cases of sales of patented articles sold by persons having limited rights under the patent laws is only to give protection to rights which the patent laws have created. Whatever may be thought of the policy of permitting a person to divide up the franchise of a patent, and to assign several franchises for different parts of the United States, that right is expressly given by the patent laws, and it is only because goods once sold are no longer subject to the patent that the right is not protected by the patent law itself. It would seem, therefore, that it is not against public policy to per- mit the holders of the several franchises to protect the franchise by special contracts with reference to the use of the articles within their territories; but, on the other hand, it seems to be the only way in which effect can be given to the policy implied in that provision of the patent laws which authorizes the patentee to make an assignment for a specified part of the United States. There are some suggestions in the text-books and in the de- cided cases that the doctrine of notice of restrictive covenants will be applied to the use and sale of patented articles within specified districts. Justice Blatchford, in Hobbie v. Jennison,^ spoke only of binding each assignee or licensee by imposing conditions which would prevent any other assignee or licensee from being interfered with, and Justice Shiras, in Keeler z;. Standard Folding Bed Co.,^ isaid, "Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a ques- tion before us, and [is one] upon which we express no opinion." .But in a recent English case, Wederman v. Societe Generale 1 149 U.S. 355. a 155 U.S. 659.