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 NOTES OF RECENT CASES ing to do so. The fact that plaintiff had been in similar crowds before and that she had many times narrowly escaped injury, and that, notwith standing the knowledge gained by such experi ences, she joined in the general rush to get into the car did not show her guilty of contributory negli gence as a matter of law. PATENTS. (Monopoly — Right to Equitable Aid.) U. S. C. C. A., 1st. Cir. — A question of tremendous importance to the general public with reference to monopolies and combinations is scrutinized with exceeding care and exhaustiveness by Judge Aldrich in a dissenting opinion in Continental Paper Bag Company v. Eastern Paper Bag Company, 150 Fed. 741. In this case the owner of a patent which had not been put in use sought the aid of a court of equity to enjoin its infringement. The majority opinion, after determining whether defendants were in fringing the patent, passes very lightly over the question as to the right to an injunction by saying that the Supreme Court has not, so far as the court is informed, directly passed on the question in any considered decision but that the weight of au thority is in favor of the right of complainant to an injunction. As constituting the weight of authority are cited: Fuller v. Berger, 120 Fed. 274, 56 C. C. A. 588, 65 L. R. A. 381; Bement v. Nat. Harrow Co., 186 U. S. 70, 88, 90, 22 Sup. Ct. 747, 46 L. Ed. 1058; Heaton Peninsular Button Fastener Co. v. Eureka Specialty Co., 77 Fed. 288, 28 C. C. A. 267, 35 L. R. A. 728; Crown Cork Co. v. Aluminum Stopper Co., 108 Fed. 845, 868, 48 C. C. A. 72; Broadnax v. Central Stockyard Co. (C. C.) 4 Fed. 214, 216; Consol. Roller-Mill Co. v. Coombs (C. C.) 39 Fed. 803; Campbell Printing Co. v. Manhattan Ry. Co. (C. C.) 49 Fed. 930. In an elaborate and well considered dissenting opinion, Judge Aldrich takes issue with the ma jority on this point. He says that there is no pre tense in the case that equitable aid is asked to protect from infringement a patent the plain tiff is using in its business. In the aspect most favorable to the plaintiff the relief sought is in junctive protection to a business or an industry built up in using a particular invention, and through acquiring and holding in deliberate nonuse a competing invention by way of protection. It results, therefore, he says, that a court of equity is asked not to protect from infringement the statutorily intended monopoly of the right to make, use, and vend under a particular patent, but to protect a monopoly beyond and broader than that, a monopoly in aid of the rightful statutory monopoly of the patent in use. The proposition involves the idea of a secondary monopoly main tained to stifle patent competition in the trades and industries, and thus contemplates a condition

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which at once contravenes the purpose of the Con stitution, and a monopoly of a kind and breadth and tor a purpose in no sense ever contemplated by the statutory contract which safeguards the legal right to make, use and vend under a par ticular patent. Simple nonuse, he concedes, is no efficient reason for withholding injunction, for there are many reasons for nonuse, which on ex planation are cogent, but a court of equity may look beyond the fictitious issues in a suit; and when acquiring, holding and nonuse are only ex plainable upon the hypothesis of a purpose to abnormally force trade into unnatural channels, this is quite a different thing from simple nonuse. Under the Constitution and statutes in aid of the constitutional provision with reference to in ventions and discoveries, it was intended to stim ulate art and invention on competitive conditions by protecting the right to each inventor, or each owner, to make, use and vend, and if equity is to aid in stultifying this plain intent through affir mative relief by injunction by protecting patent aggregations held in deliberate nonuse for the pur pose of excluding all patent benefits except such as the holder sees fit to bestow, it will help to over throw the intended meritorious patent competi tion under normal conditions in trade and will help to deny the intended benefits to the public. He cites numerous cases, among others Heaton Pen insular Button-Fastener Case, 77 Fed. 288, 25 C. C. A. 267, 35 L. R. A. 728; Livingston v. Van Ingen, 9 Johns. 507, and Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, to show that the patent right is granted on the reasonable expectation that the inventor will put his patent in practical use or permit others to avail themselves of it upon reasonable terms. A writ of certiorari in this case was granted by the Supreme Court on March nth. This decision is another example of what I have ventured to call the decadence of equity (see 5 Columbia Law Review. 20). Application of an equitable remedy in a hard and fast legal manner, without regard to the inequitable consequence, or to the purpose for which the plaintiff desires relief, is an interesting sign of the times, coming, as it does here, not from a Western Code State, but from a Federal Court in which the distinction between law and equity is supposed to be maintained. R. P. PLEADING. (Constitutional Law.) Ala. — A rather liberal view as to the sufficiency of an objection to the constitutionality of an enact ment is taken in Beauvoir Club v. State, 42 So. Rep. 1040. In this case the legislative enact ment had been pleaded as a defense to a prosecu tion. This plea was demurred to on the broad ground that the enactment was " unconstitutional