The Proposed Patent Law Amendments Two men build similar machines to do the same work. One devises an ingenious little attachment which makes his machine much the more attractive to the buying public and grad ually gets for him a large share of the business. The other applies for a compulsory license. Now, what is the measure of the fee he should pay? The device itself costs only a few dollars, but its sole possession is what gives its inventor an advantage in his business. To share it at any price knocks the greatest prop from under the business his ingenuity and energy has built up. To compel him to share his business advantage by compulsory license would kill initiative.
While a patent owner is using his utmost endeavors to establish the utility of his invention, it is unjust to have him crippled, at the outset, by a system of compulsory licenses, that can be taken advantage of by the very people whom the proposed legislation is professedly intended to reach. After he has estabt lished the utility of his invention, it is unjust to have it destroyed by compel ling him to grant a license to parties who have contributed no expenditure or effort to the invention. As an officer of the Inventors' Guild said: Everybody realizes, that is familiar with the past history of the invention, for example of the wireless telegraph or of the incandescent lamp, or any other important invention — the tele phone — that had the terms of royalty been fixed, we will say, the first year of life of that patent, it would almost certainly have been inequitable.
If anybody can compel the patent owner to issue a license, the patent ceases to be 'his exclusive right," or even his property at all; and the sole inducement for which inventors, manu facturers and capitalists devise and expilot invention is absolutely destroyed.
IV The clamor against so-called "li cense restrictions" — that is, agree ments between the patent owner and his customers, denning the manner in
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which the patented article shall be used or disposed of — arises chiefly from a popular misconception of the recent Dick patent case. The notion engendered by Chief Jus tice White's dissenting opinion in that case that Henry would have been held as an infringer, if Miss Skou or any other user of the Dick mimeograph had bought Henry's ink at a corner drug store, has absolutely no foundation in fact. The infringement in the Dick case, the Supreme Court expressly held, consisted in the fact that Henry, know ing of the license restriction, and with the expectation and intention that Henry's ink would be used for the pur pose of violating this license restriction, — to which Miss Skou, as Henry well knew, had expressly assented when she acquired the mimeograph, — had sup plied Miss Skou with the means of ac complishing this wrongful act. Indeed, the court below expressly found that Henry had deliberately and knowingly instigated Miss Skou to this wrongful act, and had even instructed her that if she would pour Henry's ink into Dick's can, and throw away Henry's can, she would not be caught violating the license restriction. No argument is needed to justify a license restriction, to which the cus tomer's attention is drawn at the time he acquires the article, and to which he voluntarily assents when he acquires it, which merely requires that he use the art icle only with supplies that are specially prepared for it, or in continuity with machines that are specially adapted to it, or in some particular manner requi site in order to accomplish the purposes for which the article was intended. "It may be that the article is of such nature that, in order that it shall work properly, it shall require very great care in select
