Page:The Green Bag (1889–1914), Volume 25.pdf/195

 180

The Green Bag

patented invention." Since compul sory license proceedings may be begun three years after the filing of the appli cation for the patent, interference pro ceedings lasting for three years in the Patent Office may result in compulsory license proceedings being begun on the very day that the patent was originally issued. Whether the court in such pro ceedings can compel the granting of an exclusive license — which would vir tually deprive the owner of the inven tion; how the court with justice can fix the royalties for the entire life of the patent; and how the royalties shall be fixed and readjusted, in the event of the subsequent granting of additional licenses — these are all questions to which the bill gives no answers. Ob viously the legal expense involved in such proceedings must be so enorm ous as to give the greatest advantage to large corporations equipped with re sources sufficient to stand such expense. Last and most serious of all, no pro vision has been nor can be devised to compel the applicant who has subjected the patent owner to these expensive compulsory license proceedings to accept the license upon the conditions and terms of royalty which the court may prescribe. "The evils arising from the vendors of patented articles fixing the price at which the article may be resold to the public," and "the evils arising from the vendors of patented articles prohibit ing their use except in connection with other unpatented articles purchased by them," were deeply lamented in the majority report. The minority remark, however, that "the majority report contains no specification of the 'evils'" and a "great majority" of the witnesses who appeared before the committee "op posed any change in the law in this respect." "Hundreds of letters," de

clare the minority, "were received by the committee from small retailers all over the country asserting that the proposed legislation would demoralize their busi ness." The minority quote Mr. Louis D. Brandeis to the effect that the main tenance by an individual manufacturer of the resale price of his patented goods develops conpetition, preserves indus trial independence, stimulates inven tion, insures fair prices and is entirely different, in substance and in effect, from a conspiracy among a group of combining manufacturers to maintain prices on their combined products; "the majority," declare the minority, in con clusion, "make absolutely no attempt to show any bad result of the right of a manufacturer of a patented article to fix resale prices, which has been well recog nized "The andaction established and the for report many years." of the majority," explain the minority, "was based on a total misapprehension of the legal effect of the decision in Dick v. Henry {Mimeograph case). . . . That these fears expressed by the majority were not justified, appears by referring to the recent decision in Standard Sani tary Manufacturing Company v. United States (Bathtub case)." This decision, and others which the minority mention, show that, contrary to the belief of the majority, patent rights are effectually curbed by the Sherman law, so that "the Dick case did not, as the majority of the committee seem to have supposed, over turn what has always been the law with respect to limitations on patent rights. Indeed, the law is now what the majority admits it was before the Dick decision, and the fears expressed in the majority report as to what might result from that decision have proven ground less. . . . These fears being now dis pelled, the proposal to change the law rests on nothing at all."