Page:The Green Bag (1889–1914), Volume 25.pdf/194

 The Patent System in Congress tends," declare the minority, "it is somewhat extraordinary that the ma jority has been unable to show a single case of the purchase of a patent for such a purpose." The efficacy of the Sherman law, which was practically ignored in the majority report, is strongly emphasized by a timely quotation from the Bathtub decision {Standard Sanitary Manufac turing Company v. United States, 226 U. S. 20) decided since the majority re port was published, from which it ap pears that most of the terrors ascribed by the majority to the patent system have long since been abolished by the Sherman law. The proposal to adopt in the American patent system innovations from the patent laws of Great Britain, Canada, Germany and France is significantly disposed of with the remark that "the majority report does not even state that such laws have operated satisfac torily and to the public benefit," and with the conclusive explanation that the patent laws of these countries differ so radically in theory from the American patent laws that they afford no safe analogy. After remarking that the great pre ponderance of the testimony before the committee showed that any policy of "compulsory license" such as the Oldfield bill proposes, would be "an extremely discouraging thing to inven tion and industry, . . . uncalled for and dangerous," and certain to entail "positive harm to the patent system," and "widespread bad effects," the mi nority examine critically the provisions for compelling the patent owner to grant a license. No opportunity is afforded a licensee who has previously purchased a license from the patent owner to intervene or be heard in the proceedings to compel the granting of

179

a subsequent license. Indeed, there is no requirement that a licensee shall even be notified when an application to compet the issuance of a subsequent license has been filed. The frequent case of patents standing in the names of several owners is not anticipated in the bill. Whether all the joint owners must be made parties to compulsory license proceedings, or whether such proceed ings can be had by bringing in only one of the joint owners, are questions whichapparently never occurred to the majority. The bill provides that when a "patented invention" is being "withheld," pro ceedings for a compulsory license may be begun. Every claim in a patent purports to state an invention, and there may be more than a hundred in a single patent. By the express language of the bill, therefore, compulsory license proceedings may be brought in respect to each and every claim set forth in the patent. The burden of such proceed ings becomes apparent, when it is noted that the questions involved include all the questions that can be raised in an infringement suit, and in addition the question of whether the invention is being "withheld." By a peculiarity of phraseology, it is provided that com pulsory license proceedings may be begun only when "the patented inven tion is being withheld or suppressed . . . with the result of preventing any other person from using the patented process ... in competition with any other article or process." "In other words," the minority remark, "the mere 'shelv ing' of a patent is not a sufficient ground on which to base an action for compul sory license. This plainly is an invita tion to the easy circumvention of the law by the simple expedient of assigning the patent which it is desired to suppress to some one not engaged in producing any article in compel ition with the