Under the patent law, the grant by patent of the exclusive right
to use, like the grant of the exclusive right to vend, is limited
to the invention described in the claims of the patent, and that
law does not empower the patent owner, by notices attached to the
things patented, to extend the scope of the patent monopoly by
restricting their use to materials necessary for their operation
but forming no part of the patented invention, or to send such
articles forth into the channels of trade subject to conditions as
to use or royalty, to be imposed thereafter, in the vendor's
discretion.
The Button-Fastener Case, 77 F. 288, and
Henry v. Dick Company, 224 U. S. 1,
overruled.
In determining how far the owner of a patent may restrict the
use after sale of machines embodying the invention, weight must be
given to the rules long established that the scope of every patent
is limited to the invention as described in the claims, read in the
light of the specification, that the patentee receives nothing from
the patent law beyond the right to restrain others from
manufacturing, using, or selling his invention, and that the
primary purpose of that law is not to create private fortunes, but
is to promote the progress of science and the useful arts.
The extent to which the use of a patented machine may validly be
restricted to specific supplies or otherwise by special contract
between the owner of the patent and a purchaser or licensee is a
question outside of the patent law, and not involved in this
case.
235 F. 398 affirmed.
The case is stated in the opinion.
Page 243 U. S. 505
MR. JUSTICE CLARKE delivered the opinion of the Court.
In this suit relief is sought against three defendant
corporations as joint infringers of Claim number seven of United
States letters patent No. 707,934, granted to Woodville Latham,
assignor, on August 26, 1902, for improvements in projecting
kinetoscopes. It is sufficient description of the patent to say
that it covers a part of the mechanism used in motion picture
exhibiting machines for feeding a film through the machine with a
regular, uniform, and accurate movement, and so as not to expose
the film to excessive strain or wear.
The defendants, in a joint answer, do not dispute the title
Page 243 U. S. 506
of the plaintiff to the patent, but they deny the validity of
it, deny infringement, and claim an implied license to use the
patented machine.
Evidence which is undisputed shows that the plaintiff, on June
20, 1912, in a paper styled "License Agreement," granted to the
Precision Machine Company a right and license to manufacture and
sell machines embodying the inventions described and claimed in the
patent in suit and in other patents, throughout the United States,
its territories and possessions. This agreement contains a covenant
on the part of the grantee that every machine sold by it, except
those for export, shall be sold
"under the restriction and condition that such exhibiting or
projecting machine shall be used solely for exhibiting or
projecting motion pictures containing the inventions of reissued
letters patent No. 12,192,
leased by a licensee of the licensor
while it owns said patents and upon other terms to be fixed by
the licensor and complied with by the user while the said machine
is in use and
while the licensor owns said patents (which
other terms shall only be the payment of a royalty or rental to the
licensor while in use)."
The grantee further covenants and agrees that to each machine
sold by it, except for export, it will attach a plate showing
plainly not only the dates of the letters patent under which the
machine is "licensed,", but also the following words and
figures:
"Serial No. ___."
"Patented No. ___"
"The sale and purchase of this machine gives only the right to
use it solely with moving pictures containing the invention of
reissued patent No. 12,192, leased by a licensee of the Motion
Picture
Page 243 U. S. 507
Patents Company, the owner of the above patents and reissued
patent, while it owns said patents, and upon other terms to be
fixed by the Motion Picture Patents Company and complied with by
the user while it is in use and while the Motion Picture Patents
Company owns said patents. The removal or defacement of this plate
terminates the right to use this machine."
The agreement further provides that the grantee shall not sell
any machine at less than the plaintiff's list price, except to
jobbers and others for purposes of resale, and that it will require
such jobbers and others to sell at not less than plaintiff's list
price. The price fixed in the license contract for sale of machines
after May 1st, 1909, is not less than $150 for each machine, and
the licensee agrees to pay a royalty of $5 on some machines and a
percentage of the selling price on others.
It is admitted that the machine, the use of which is charged to
be an infringement of the patent in suit, was manufactured by the
Precision Machine Company, and was sold and delivered under its
"License Agreement" to the Seventy-Second Street Amusement Company,
then operating a Playhouse on Seventy-Second Street, in New York,
and that, when sold, it was fully paid for and had attached to it a
plate with the inscription which we have quoted, as required by the
agreement.
Reissued patent 12,192, referred to in the notice attached to
the machine, expired on August 31, 1914. The defendant Prague
Amusement Company, on November 2, 1914, leased the Seventy-Second
Street Playhouse from the Seventy-second Street Amusement Company,
and acquired the alleged infringing machine as a part of the
equipment of the leased playhouse. Subsequent to the expiration of
reissued patent 12,192, the defendant Universal Film Manufacturing
Company made two films or reels, which, between March 4th and 17th,
1915, were sold to the defendant the Universal Film Exchange, and
on March 17, 1915, were supplied to the defendant Prague Amusement
Company for use on the machine, acquired as we have stated, and
were used upon it at the Seventy-second Street Playhouse on March
18th, 1915.
Page 243 U. S. 508
On January 18, 1915, the plaintiff sent a letter to the
Seventy-Second Street Amusement Company notifying it in general
terms that it was using without a license a machine embodying the
invention of patent No. 707,934 and warning it that such use
constituted an infringement of the patent, and on the same day the
plaintiff addressed a letter to the defendant Universal Film
Exchange, notifying it that it also was infringing the same patents
by supplying films for use upon the machine of the Seventy-Second
Street Playhouse and elsewhere. The bill in this case was filed on
March 18, 1915.
The district court held that the limitation on the use of the
machine attempted to be made by the notice attached to it after it
had been sold and paid for, was invalid, and that the
Seventy-Second Street Amusement Company, the purchaser, and its
lessee, the Prague Amusement Company, had an implied license to use
the machine as it had been used, and it dismissed the bill without
passing on the question raised in the pleadings as to the validity
of the patent. The circuit court of appeals affirmed the district
court (235 F. 398), and the case is here for review on
certiorari.
It was admitted at the bar that 40,000 of the plaintiff's
machines are now in use in this country, and that the mechanism
covered by the patent in suit is the only one with which motion
picture films can be used successfully.
This state of facts presents two questions for decision:
First. May a patentee or his assignee license another to
manufacture and sell a patented machine, and, by a mere notice
attached to it, limit its use by the purchaser or by the
purchaser's lessee to films which are no part of the patented
machine, and which are not patented?
Second. May the assignee of a patent, which has licensed another
to make and sell the machine covered by it, by a mere notice
attached to such machine, limit the
Page 243 U. S. 509
use of it by the purchaser or by the purchaser's lessee to terms
not stated in the notice, but which are to be fixed, after sale, by
such assignee, in its discretion?
It is obvious that in this case we have presented anew the
inquiry, which is arising with increasing frequency in recent
years, as to the extent to which a patentee or his assignee is
authorized by our patent laws to prescribe by notice attached to a
patented machine the conditions of its use and the supplies which
must be used in the operation of it under pain of infringement of
the patent.
The statutes relating to patents do not provide for any such
notice, and it can derive no aid from them. Rev.Stats. § 4900,
requiring that patented articles shall be marked with the word
"Patented," affects only the damages recoverable for infringement,
Dunlap v. Schofield, 152 U. S. 244, and
Rev.Stats. § 4901 protects by its penalties the inventor, but
neither one contemplates the use of such a "License Notice" as we
have here, and whatever validity it has must be derived from the
general, and not from the patent, law.
The extent to which the use of the patented machine may validly
be restricted to specific supplies or otherwise by special contract
between the owner of a patent and the purchaser or licensee is a
question outside the patent law, and with it we are not here
concerned.
Keeler v. Standard Folding Bed Co.,
157 U. S. 659.
The inquiry presented by this record, as we have stated it, is
important and fundamental, and it requires that we shall determine
the meaning of Congress when, in Rev.Stats. § 4884, it provided
that
"every patent shall contain . . . a grant to the patentee, his
heirs or assigns, for the term of seventeen years,
of the
exclusive right to make,
use, and vend
the
invention or discovery throughout the United States, and the
territories thereof."
We are concerned only with the right to "use," authorized to be
granted by this statute, for it is under warrant of this
Page 243 U. S. 510
right only that the plaintiff can and does claim validity for
its warning notice.
The words used in the statute are few, simple, and familiar,
they have not been changed substantially since they were first used
in the Act of 1790, c. 7, 1 Stat. 109,
Bauer v. O'Donnell,
229 U. S. 1, and
their meaning would seem not to be doubtful if we can avoid reading
into them that which they really do not contain.
In interpreting this language of the statute, it will be of
service to keep in mind three rules long established by this Court,
applicable to the patent law and to the construction of patents,
viz.:
1st. The scope of every patent is limited to the invention
described in the claims contained in it, read in the light of the
specification. These so mark where the progress claimed by the
patent begins and where it ends that they have been aptly likened
to the description in a deed, which sets the bounds to the grant
which it contains. It is to the claims of every patent, therefore,
that we must turn when we are seeking to determine what the
invention is, the exclusive use of which is given to the inventor
by the grant provided for by the statute -- "He can claim nothing
beyond them."
Keystone Bridge Co. v. Phoenix Iron Co.,
95 U. S. 274;
Railroad Co. v. Mellon, 104 U. S. 112,
104 U. S. 118;
Yale Lock Mfg. Co. v. Greenleaf, 117 U.
S. 554,
117 U. S. 559;
McClain v. Ortmayer, 141 U. S. 419,
141 U. S.
424.
2nd. It has long been settled that the patentee receives nothing
from the law which he did not have before, and that the only effect
of his patent is to restrain others from manufacturing, using, or
selling that which he has invented. The patent law simply protects
him in the monopoly of that which he has invented and has described
in the claims of his patent.
United States v. American Bell
Telephone Co., 167 U. S. 224,
167 U. S. 239;
Continental Paper Bag Co. v. Eastern Paper Bag Co.,
210 U. S. 405,
210 U. S. 424;
Bauer v. O'Donnell, 229 U. S. 1,
229 U. S. 10.
3rd. Since
Pennock v.
Dialogue, 2 Pet. 1, was decided in
Page 243 U. S. 511
1829, this Court has consistently held that the primary purpose
of our patent laws is not the creation of private fortunes for the
owners of patents, but is "to promote the progress of science and
the useful arts" (Constitution, Art. I, § 8) -- an object and
purpose authoritatively expressed by Mr. Justice Story in that
decision, saying:
"While one great object [of our patent laws] was, by holding out
a reasonable reward to inventors and giving them an exclusive right
to their inventions for a limited period, to stimulate the efforts
of genius the main object was 'to promote the progress of science
and useful arts.'"
Thirty years later, this Court, returning to the subject, in
Kendall v.
Winsor, 21 How. 322, again pointedly and
significantly says:
"It is undeniably true that the limited and temporary monopoly
granted to inventors was never designed for their exclusive profit
or advantage; the benefit to the public or community at large was
another and doubtless the primary object in granting and securing
that monopoly."
This Court has never modified this statement of the relative
importance of the public and private interests involved in every
grant of a patent, even while declaring that, in the construction
of patents and the patent laws, inventors shall be fairly, even
liberally, treated.
Grant v.
Raymond, 6 Pet. 218,
31 U. S. 241;
Winans v.
Denmead, 15 How. 330; Walker, Patents, § 185.
These rules of law make it very clear that the scope of the
grant which may be made to an inventor in a patent, pursuant to the
statute, must be limited to the invention described in the claims
of his patent (104 U.S.
104 U. S. 118,
supra), and, to determine what grant may lawfully be so
made, we must hold fast to the language of the act of Congress
providing for it, which is found in two sections of the Revised
Statutes. Section 4886 provides that
"any person who has invented or discovered any new and useful
art, machine,
Page 243 U. S. 512
manufacture, or composition of matter, or any new and useful
improvement thereof, . . . may . . . obtain a patent therefor,"
and § 4884 provides that such patent, when obtained, "shall
contain . . . a grant to the patentee, his heirs or assigns . . .
of the exclusive right to . . . use . . . the invention or
discovery."
Thus, the inventor may apply for, and, if he meets the required
conditions, may obtain, a patent for the new and useful invention
which he has discovered, which patent shall contain a grant of the
right to the exclusive use of his discovery.
Plainly, this language of the statute and the established rules
to which we have referred restrict the patent granted on a machine,
such as we have in this case, to the mechanism described in the
patent as necessary to produce the described results. It is not
concerned with, and has nothing to do with, the materials with
which or on which the machine operates. The grant is of the
exclusive right to use the mechanism to produce the result with any
appropriate material, and the materials with which the machine is
operated are no part of the patented machine or of the combination
which produces the patented result. The difference is clear and
vital between the exclusive right to use the machine, which the law
gives to the inventor, and the right to use it exclusively with
prescribed materials to which such a license notice as we have here
seeks to restrict it. The restrictions of the law relate to the
useful and novel features of the machine which are described in the
claims of the patent; they have nothing to do with the materials
used in the operation of the machine, while the notice restrictions
have nothing to do with the invention which is patented, but relate
wholly to the materials to be used with it. Both in form and in
substance, the notice attempts a restriction upon the use of the
supplies only, and it cannot, with any regard to propriety
Page 243 U. S. 513
in the use of language, be termed a restriction upon the use of
the machine itself.
Whatever the right of the owner may be to control by restriction
the materials to be used in operating the machine, it must be a
right derived through the general law from the ownership of the
property in the machine, and it cannot be derived from or protected
by the patent law, which allows a grant only of the right to an
exclusive use of the new and useful discovery which has been made
-- this and nothing more.
This construction gives to the inventor the exclusive use of
just what his inventive genius has discovered. It is all that the
statute provides shall be given to him, and it is all that he
should receive, for it is the fair, as well as the statutory,
measure of his reward for his contribution to the public stock of
knowledge. If his discovery is an important one, his reward under
such a construction of the law will be large, as experience has
abundantly proved, and if it be unimportant, he should not be
permitted by legal devices to impose an unjust charge upon the
public in return for the use of it. For more than a century, this
plain meaning of the statute was accepted as its technical meaning,
and that it afforded ample incentive to exertion by inventive
genius is proved by the fact that, under it, the greatest
inventions of our time, teeming with inventions, were made. It
would serve no good purpose to amplify by argument or illustration
this plain meaning of the statute. It is so plain that to argue it
would obscure it.
It was not until the time came in which the full possibilities
seem first to have been appreciated of uniting in one many branches
of business through corporate organization, and of gathering great
profits in small payments, which are not realized or resented, from
many, rather than smaller or even equal profits in larger payments,
which are felt and may be refused, from a few, that it came to be
thought that the "right to use . . . the invention"
Page 243 U. S. 514
of a patent gave to the patentee or his assigns the right to
restrict the use of it to materials or supplies not described in
the patent, and not, by its terms, made a part of the thing
patented.
The construction of the patent law which justifies as valid the
restriction of patented machines, by notice, to use with unpatented
supplies necessary in the operation of them, but which are no part
of them, is believed to have originated in
Heaton-Peninsular
Button-Fastener Co. v. Eureka Specialty Co., 77 F. 288 (which
has come to be widely referred to as the
Button-Fastener
Case), decided by the Circuit Court of Appeals of the Sixth
Circuit in 1896. In this case, the court, recognizing the pioneer
character of the decision it was rendering, speaks of the "novel
restrictions" which it is considering, and says that it is called
upon
"to mark another boundary line around the patentee's monopoly
which will
debar him from engrossing the market for an article
not the subject of a patent,"
which it declined to do.
This decision proceeds upon the argument that, since the
patentee may withhold his patent altogether from public use, he
must logically and necessarily be permitted to impose any
conditions which he chooses upon any use which he may allow of it.
The defect in this thinking springs from the substituting of
inference and argument for the language of the statute, and from
failure to distinguish between the rights which are given to the
inventor by the patent law and which he may assert against all the
world through an infringement proceeding, and rights which he may
create for himself by private contract, which, however, are subject
to the rules of general, as distinguished from those of the patent,
law. While it is true that, under the statutes as they were (and
now are), a patentee might withhold his patented machine from
public use, yet, if he consented to use it himself or through
others, such use immediately fell within the terms of the
Page 243 U. S. 515
statute, and, as we have seen, he is thereby restricted to the
use of the invention as it is described in the claims of his
patent, and not as it may be expanded by limitations as to
materials and supplies necessary to the operation of it, imposed by
mere notice to the public.
The high standing of the court rendering this decision and the
obvious possibilities for gain in the method which it approved led
to an immediate and widespread adoption of the system, in which
these restrictions expanded into more and more comprehensive forms
until at length the case at bar is reached, with a machine sold and
paid for, yet claimed still to be subject not only to restriction
as to supplies to be used, but also subject to any restrictions or
conditions as to use or royalty which the company which authorized
its sale may see fit, after the sale, from time to time to impose.
The perfect instrument of favoritism and oppression which such a
system of doing business, if valid, would put into the control of
the owner of such a patent should make courts astute, if need be,
to defeat its operation. If these restrictions were sustained,
plainly the plaintiff might, for its own profit or that of its
favorites, by the obviously simple expedient of varying its royalty
charge, ruin anyone unfortunate enough to be dependent upon its
confessedly important improvements for the doing of business.
Through the twenty years since the decision in the
Button-Fastener Case was announced, there have not been
wanting courts and judges who have dissented from its conclusions,
as is sufficiently shown in the division of this Court when the
question involved first came before it in
Henry v. A. B. Dick
Co., 224 U. S. 1, and in
the disposition shown not to extend the doctrine in
Bauer v.
O'Donnell, 229 U. S. 1.
The exclusive right to "vend" a patented article is derived from
the same clause of the section of the statute which gives the
exclusive right to "use" such an article,
Page 243 U. S. 516
and, following the decision of the
Button-Fastener
Case, it was widely contended as obviously sound that the
right existed in the owner of a patent to fix a price at which the
patented article might be sold and resold under penalty of patent
infringement. But this Court, when the question came before it in
Bauer v. O'Donnell, supra, rejecting plausible argument
and, adhering to the language of the statute from which all patent
right is derived, refused to give such a construction to the act of
Congress, and decided that the owner of a patent is not authorized
by either the letter or the purpose of the law to fix, by notice,
the price at which a patented article must be sold after the first
sale of it, declaring that the right to vend is exhausted by a
single, unconditional sale, the article sold being thereby carried
outside the monopoly of the patent law and rendered free of every
restriction which the vendor may attempt to put upon it. The
statutory authority to grant the exclusive right to "use" a
patented machine is not greater -- indeed, it is precisely the same
-- as the authority to grant the exclusive right to "vend," and,
looking to that authority, for the reasons stated in this opinion,
we are convinced that the exclusive right granted in every patent
must be limited to the invention described in the claims of the
patent, and that it is not competent for the owner of a patent, by
notice attached to its machine, to in effect extend the scope of
its patent monopoly by restricting the use of it to materials
necessary in its operation, but which are no part of the patented
invention, or to send its machines forth into the channels of trade
of the country subject to conditions as to use or royalty to be
paid, to be imposed thereafter at the discretion of such patent
owner. The patent law furnishes no warrant for such a practice, and
the cost, inconvenience, and annoyance to the public which the
opposite conclusion would occasion forbid it.
It is argued as a merit of this system of sale under a
Page 243 U. S. 517
license notice that the public is benefited by the sale of the
machine at what is practically its cost, and by the fact that the
owner of the patent makes its entire profit from the sale of the
supplies with which it is operated. This fact, if it be a fact,
instead of commending, is the clearest possible condemnation of the
practice adopted, for it proves that, under color of its patent,
the owner intends to and does derive its profit not from the
invention on which the law gives it a monopoly, but from the
unpatented supplies with which it is used, and which are wholly
without the scope of the patent monopoly, thus in effect extending
the power to the owner of the patent to fix the price to the public
of the unpatented supplies as effectively as he may fix the price
on the patented machine.
We are confirmed in the conclusion which we are announcing by
the fact that, since the decision of
Henry v. A. B. Dick Co.
supra, the Congress of the United States, the source of all
rights under patents, as if in response to this decision, has
enacted a law making it unlawful for any person engaged in
interstate commerce
"to lease or make a sale or contract for sale of goods, . . .
machinery, supplies or other commodities,
whether patented or
unpatented, for use, consumption or resale . . . or fix a
price charged therefor, . . . on the condition, agreement or
understanding that the lessee or purchaser thereof shall not use .
. . the goods . . . machinery, supplies or other commodities of a
competitor or competitors of the lessor or seller where the effect
of such lease, sale, or contract for sale, or such condition,
agreement or understanding may be to substantially lessen
competition or tend to create a monopoly in any line of
commerce."
38 Stat. 730.
Our conclusion renders it unnecessary to make the application of
this statute to the case at bar which the circuit court of appeals
made of it, but it must be accepted by us as a most persuasive
expression of the public
Page 243 U. S. 518
policy of our country with respect to the question before
us.
It is obvious that the conclusions arrived at in this opinion
are such that the decision in
Henry v. A. B. Dick Co.,
supra, must be regarded as overruled.
Coming now to the terms of the notice attached to the machine
sold to the Seventy-Second Street Amusement Company under the
license of the plaintiff, and to the first question as we have
stated it.
This notice first provides that the machine, which was sold to
and paid for by the Amusement Company, may be used only with moving
picture films containing the invention of reissued patent No.
12,192, so long as the plaintiff continues to own this reissued
patent.
Such a restriction is invalid because such a film is obviously
not any part of the invention of the patent in suit, because it is
an attempt, without statutory warrant, to continue the patent
monopoly in this particular character of film after it has expired,
and because to enforce it would be to create a monopoly in the
manufacture and use of moving picture films wholly outside of the
patent in suit and of the patent law as we have interpreted it.
The notice further provides that the machine shall be used only
upon other terms (than those stated in the notice), to be fixed by
the plaintiff, while it is in use and while the plaintiff "owns
said patents." And it is stated at the bar that, under this
warrant, a charge was imposed upon the purchaser graduated by the
size of the theater in which the machine was to be used.
Assuming that the plaintiff has been paid an average royalty of
$5 on each machine sold, prescribed in the license agreement, it
has already received over $200,000 for the use of its patented
improvement, which relates only to the method of using the films
which another had invented, and yet it seeks by this device to
collect during the life of the patent in suit what would doubtless
aggregate
Page 243 U. S. 519
many times this amount for the use of this same invention after
its machines have been sold and paid for.
A restriction which would give to the plaintiff such a potential
power for evil over an industry which must be recognized as an
important element in the amusement life of the nation, under the
conclusions we have stated in this opinion, is plainly void because
wholly without the scope and purpose of our patent laws, and
because, if sustained, it would be gravely injurious to that public
interest, which we have seen is more a favorite of the law than is
the promotion of private fortunes.
Both questions as stated must be answered in the negative, and
the decree of the circuit court of appeals is
Affirmed.
MR. JUSTICE McREYNOLDS concurs in the result.
MR. JUSTICE HOLMES, dissenting:
I suppose that a patentee has no less property in his patented
machine than any other owner, and that, in addition to keeping the
machine to himself, the patent gives him the further right to
forbid the rest of the world from making others like it. In short,
for whatever motive, he may keep his device wholly out of use.
Continental Paper Bag Co. v. Eastern Paper Bag Co.,
210 U. S. 405,
210 U. S. 422.
So much being undisputed, I cannot understand why he may not keep
it out of use unless the licensee, or, for the matter of that, the
buyer, will use some unpatented thing in connection with it.
Generally speaking, the measure of a condition is the consequence
of a breach, and if that consequence is one that the owner may
impose unconditionally, he may impose it conditionally upon a
certain event.
Ashley v. Ryan, 153 U.
S. 436,
153 U. S. 443;
Lloyd v. Dollison, 194 U. S. 445,
194 U. S. 449.
Non debet, cui plus licet, quod minus est non licere. D.
50, 17, 21.
Page 243 U. S. 520
No doubt this principle might be limited or excluded in cases
where the condition tends to bring about a state of things that
there is a predominant public interest to prevent. But there is no
predominant public interest to prevent a patented teapot or film
feeder from being kept from the public, because, as I have said,
the patentee may keep them tied up at will while his patent lasts.
Neither is there any such interest to prevent the purchase of the
tea or films that is made the condition of the use of the machine.
The supposed contravention of public interest sometimes is stated
as an attempt to extend the patent law to unpatented articles,
which, of course, it is not, and more accurately as a possible
domination to be established by such means. But the domination is
one only to the extent of the desire for the teapot or film feeder,
and if the owner prefers to keep the pot or the feeder unless you
will buy his tea or films, I cannot see, in allowing him the right
to do so, anything more than an ordinary incident of ownership, or,
at most, a consequence of the
Paper Bag Case, on which, as
it seems to me, this case ought to turn.
See Grant v.
Raymond, 6 Pet. 218,
31 U. S.
242.
Not only do I believe that the rule that I advocate is right
under the
Paper Bag Case, but I think that it has become a
rule of property that law and justice require to be retained. For
fifteen years, at least since
Bement & Sons v. National
Harrow Co., 186 U. S. 70,
186 U. S. 88-93,
if not considerably earlier, the public has been encouraged by this
court to believe that the law is as it was laid down in
Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty
Co., 77 F. 288, and numerous other decisions of the lower
courts. I believe that many and important transactions have taken
place on the faith of those decisions, and that, for that reason as
well as for the first that I have given, the rule last announced in
Henry v. A. B. Dick Co., 224 U. S. 1, should
be maintained.
I will add, for its bearing upon
Straus v. Victor
Talking
Page 243 U. S. 521
Machine Co., ante, 243 U. S. 490,
that a conditional sale retaining the title until a future event
after delivery has been decided to be lawful again and again by
this Court.
Bailey v. Baker Ice Machine Co., 239 U.
S. 268,
239 U. S. 272.
I confine myself to expressing my views upon the general and
important questions upon which I have the misfortune to differ from
the majority of the Court. I leave on one side the question of the
effect of the Clayton Act, as the Court had done, and also what I
might think if the
Paper Bag Case were not upheld, or if
the question were upon the effect of a combination of patents such
as to be contrary to the policy that I am bound to accept from the
Congress of the United States.
MR. JUSTICE McKENNA and MR. JUSTICE VAN DEVANTER concur in this
dissent.