THE PROTECTION OF UNUSED PATENTS to the patent would also be an infringe ment. The true test in every case will be whether the acts complained of are calcu lated substantially to interfere with the profits of the patentee." (The italics in the last quotation are mine). This same principle has been recognized in the decisions of our Federal Courts in this country, some instances of which are the following : The learned and distinguished Judge Blodgett, in the case of Hoe et al. v. Knapp et al., 27 Fed. Rep. 204-212, says at page 212, what is strictly applicable to the prin ciple which I am contending for, as follows: "I think, under a patent which gives a patentee a monopoly, he is bound either to use the patent himself or allow others to use it on reasonable or equitable terms, and as I refused an injunction on the motion before the hearing, I shall refuse an injunction in the interlocutory decree, and allow the defendants to continue to use the patent on their giving bond as they have heretofore." In Kendall v. Winsor, 21 How. 322, in speaking of the policy of our law, the court says : "It is undeniably true that the limited and temporary monopoly granted to in ventors was never designed for their exclu sive profit or benefit; the benefit to the public or community at large was another and doubtless the primary object in grant ing and securing that monopoly." In Grant v. Raymond, 6 Peters 218, Chief Justice Marshall says: "The great object and intention of the act is to secure to the public the advantages to be derived from the discoveries of the individuals." In the case of New York Paper Bag Co. v. Hollingsworth, 5 C. C. A. 490-497, Judge Putnam agreed with the majority of the court that the bill should be dismissed because infringement was not made out. "If the record in this case is to be opened, I agree with the conclusions of the majority of the court; but as the patentees have never
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made any use of their alleged invention, nor attempted to do so, nor permitted its use by others, nor given an explanation of the non-user or any reason for it, I doubt whether the case submitted is not one of mere legal right, and whether the com plainant should not be left to its remedy at common law, if entitled to any relief at all." The "power" vested in the United States Courts under section 4921 of the Revised Statutes of the United States, to grant in junctions in patent causes, is limited to granting such injunctions "according to the course and principles of Courts of Equity." It would seem that in determining this "power," courts of equity should take into consideration the history and policy of the patent law. Judge Grosscup, in his dissenting opinion in the case of Fuller v. Berger, at p. 281 of 120 Fed., recognizes this principle, in the following words : "A patent is not a private contract, nor a transaction between private individuals. It is a contract between the patentee and the public; and to every suit brought to enforce the patent, the public is beneficially a party. How a patentee has used his con tract right, and how he intends to use it in the future, is a matter not unconnected with the public's interest in the litigation, and comes, therefore, to be a pertinent inquiry when an enforcement of his con tract rights is asked for." If laches in filing the bill be a good defense, why is it not a good defense in equity that the complainant, without good excuse, has not put the patented invention into use nor allowed others, under license from him, to put the invention into use? As Mr. Justice Brewer said, when circuit judge, in Baltimore & Ohio Tel. Co. v. Bell Tel. Co., 23 Fed. 539: "There is no peculiar sanctity hovering over or attaching to the ownership of a patent. It is simply a property right, to be protected as such." St. Louis, Mo., June, 1907.
