Jungersen v. Ostby & Barton Company/Dissent Jackson

by Robert H. Jackson

United States Supreme Court

335 U.S. 560

Jungersen  v.  Ostby & Barton Company

 Argued: Nov. 10, 1948. --- Decided: Jan 3, 1949

Mr. Justice JACKSON, dissenting.

I think this patent meets the patent statute's every requirement. And confronted by this record an industry heretofore galled by futility and frust ation may well be amazed at the Court's dismissal of Jungersen's ingenious and successful efforts.

Of course, commercial success will not fill any void in an invalid patent. But it may fill the void in our understanding of what the invention has meant to those whose livelihood, unlike our own, depends upon their knowledge of the art. Concededly, in this high-pressure age sales volume may reflect only powerful promotion or marketing magic, and its significance as an index of novelty or utility may rightly be suspected. But Jungersen's success was grounded not in the gullibility of the public but in the hard-headed judgment of a highly competitive and critical if not hostile industry. Knowing well its need for and its failure to achieve improvements on available processes, that industry discarded them, adopted this outsider's invention, and made it a commercial success.

It would take a singular self-assurance on the part of one who knows as little of this art as I do, or as I can learn in the few hours that can be given to consideration of this case, to ignore the judgment of these competitors who grew up in the industry and say that they did not know something new and useful when they saw it. And if Benvenuto Cellini's age-old writings are so revealing to us laymen of the appellate Bench, it is hard to see why this practical-minded industry which the Court says was following Cellini failed through all the years to get his message.

It would not be difficult to cite many instances of patents that have been granted, improperly I think, and without adequate tests of invention by the Patent Office. But I doubt that the remedy for such Patent Office passion for granting patents is an equally strong passion in this Court for striking them down so that the only patent that is valid is one which this Court has not been able to get its hands on.

I agree with the opinion of Judge Learned Hand below.

Notes