Bauer & Cie. v. O'Donnell,
229 U.S. 1 (1913)

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U.S. Supreme Court

Bauer & Cie. v. O'Donnell, 229 U.S. 1 (1913)

Bauer & Company v. O'Donnell

No. 951

Argued April 10, 1913

Decided May 26, 1913

229 U.S. 1


The right to make, use and sell an invented article existed without, and before, the passage of the patent law; the act secured to the inventor the exclusive right to make, use and vend the thing patented.

While the patent law should be fairly and liberally construed to effect the purpose of Congress to encourage useful invention, the rights and privileges which it bestows should not be extended by judicial construction beyond what Congress intended.

In framing the patent act and defining the rights and privileges of patentees thereunder, Congress did not use technical or occult phrases, but in simple terms gave the patentee the exclusive right to make, use, and vend his invention for a definite term of years.

A patentee may not by notice limit the price at which future retail sales of the patented article may be made, such article being in the hands of a retailer by purchase from a jobber who has paid to the agent of the patentee the full price asked for the article sold. Henry v. Dick Co., 224 U. S. 1, distinguished.

The patent law differs from the copyright law in that it not only confers the right to make and sell, but also the exclusive right to use the subject matter of the patent.

Page 229 U. S. 2

The words "vend" and "vending," as used in § 4952, Rev.Stat., in regard to the copyright protection accorded authors and as used in § 4884, Rev.Stat., in regard to the protection accorded inventors for their patented articles, are substantially the same, and the protection intended to be secured to authors and inventors is substantially identical.

While Bobbs-Merrll Co. v. Straus, 210 U. S. 339, recognized that there are differences between the copyright statute and the patent statute, and disclaimed then deciding the effect of the word "vending" as used in the latter, this Court now decides that the terms used in regard to the protection accorded by both statutes in regard to the exclusive right to sell are, to all intents, the same.

The right given by the patent law to the inventor to use his invention should be protected by all means properly within the scope of the statute, and the patentee may transfer a patented article with a qualified title as to its use. Henry v. Dick Co., 224 U. S. 1.

Where the transfer of the patented article is full and complete, an attempt to reserve the right to fix the price at which it shall be resold by the vendee is futile under the statute. It is not a license for qualified use, but an attempt to unduly extend the right to vend. Henry v. Dick Co., 224 U. S. 1, distinguished.

While the patent law creates to a certain extent a monopoly by the inventor in the patented article, a patentee who has parted with the article patented by passing title to a purchaser has placed the article beyond the limits of the monopoly secured by the act. Adams v. Burke, 17 Wall. 453.

The facts, which involve the construction of § 4884, Rev.Stat., and the extent of the rights thereunder of patentees to control the price at which the patented article shall be sold by their vendees, are stated in the opinion.

Page 229 U. S. 8

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