408
THE GREEN BAG
patents for inventions are just and lawful monopolies, one corporation or individual may, by the accident or good fortune of ownership of all patents in a particular art, hold a lawful monopoly of the industry to which that art may relate. Bement v. National Harrow Co., 186 U. S. 70. But what has not yet been squarely decided by the United States Supreme Court, is whether or not the owner of a patent for an invention, which he has not used himself and which he has not allowed others to use, who shows no sound excuse for nonuse of the invention, can, in respect to a patent for that invention, obtain equitable relief by injunction, etc., against an infringer of such a paper patent. The mere fact that such a complainant may own other patents for inventions relating to the same art, which other patented inventions he does use com mercially, is no reason, per se, for refusing him equitable relief. To so hold is to punish the complainant for holding a just monopoly under the other patents, though they may be all the other patents in that art, when, as to those other patents, he has used commercially their invention. In the words of Mr. Robinson (Robinson on Patents, Vol. i., sec. 43) it is "the infringe ment of the use, and not ef the ownership of an invention, that the public have con tracted to prevent or to redress; and the degree of injury committed by the infringer is to be estimated by his interference with that use as already made, or likely to be made, by the inventor. To give one who, having patented a valuable invention prac tically suppresses it, the same redress, in quantity as well as in kind, which justly could be claimed by one who was engaged in its employment, is a perversion of the true idea of the relation of the inventor to the public, and sanctions his neglect of a duty impliedly imposed upon him by his grant." Mr. Robinson's proposition, just stated, is one which warrants the conclusions,
though not the argument, of Judge Aldrich in the Paper Bag case; and, I believe, not a well reasoned case can be found in the books which holds to the contrary. True there are decisions of the Circuit Court and Circuit Court of Appeals which, like the majority opinion of the Circuit Court of Appeals in 1 50 Fed. 741, pass on the question lightly, merely holding that the owner of a patent, because it is a patent, may use it or not as he pleases and still apply for and obtain equitable relief; and thus an array of decisions, ill considered and poorly reasoned, may be culled from the books; but such decisions, not founded upon the true history and policy of our patent laws, can hardly be called authorities which persuade the mind and which shall have the homage of reason, whatever binding force they may have in the particular circuits in which they were decided pending the decision of the Supreme Court on this precise question. The history of the patent system in Eng land and in the United States clearly attests that Mr. Robinson is absolutely correct in the following statements, found in the ex tract from his valuable work quoted supra. (a) That it is the infringement of the use, and not of the ownership of an invention that the public have contracted to prevent or redress. (b) That there is an implied duty resting upon a patentee to put the patented inven tion into commercial use or to license others to do so. It is an easy matter to trace this policy and this implied duty resting upon the patentee in the history of the patent law. It is now well established and has been well settled, both in England and the United States, by the decisions of the Courts and by distinguished authorities in the matter of political economy, that a patent for a new and useful invention, granted in conform ity with law, is a just and lawful mono poly. This has been recognized as sound and true since the passage of the Statute of
