348
The Green Bag
"The new conditions imposed are first, that where there is matter the publication of which is paid for, the fact of such payment shall be dis closed by marking the matter as an advertise ment, and, second, the disclosure as to ownership, etc., previously exacted is enlarged by making it necessary in the case of a corporation to fur nish the names of the stockholders, and also re quiring that the names of the principal creditors, etc., be given. "As the right to consider the character of the publication as an advertising medium was pre viously deemed to be incidental to the exercise of the power to classify for the purpose of the second-class mail, it is impossible in reason to perceive why the new condition as to marking matter, which is paid for as an advertisement is not equally incidental to the right to classify. "And the additional exactions as to disclosure of stockholders, principals, creditors, etc., also are as clearly incidental to the power to classify as are the requirements as to disclosure of ownership, editors, etc., which for so many years formed the basis of the right of admission to the classification. We say this because of the inti mate relation which exists between ownership and debt, since debt in its ultimate conception is a dismemberment of ownership and the power which it confers over an owner is, by the common knowledge of mankind, often the equivalent of the control which would result from ownership itself. . . . "We repeat that in considering this subject we are concerned not with any general regulation of what should be published in newspapers, not with any condition excluding from the right to resort to the mails, but we are concerned solely and exclusively with the right on behalf of the publishers to continue to enjoy great privileges and advantages at the public expense, a iight given to them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the founda tion of the privileges accorded." Interstate Commerce. See Railway Rates. Monopolies. Patentee's Alleged Monopoly of Sale — Limitation of Resale Prices by Paten tee's Agent — Meaning of "Exclusive Right to Vend" under the Statute. U. S. Price restrictions imposed by manufacturers on the resale of patented articles were held not to be binding on retailers by the important decision of the Supreme Court of the United States in Bauer & Cie. v. O'Donnell (L. ed. adv. sheets,
no. 15, p. 616), decided May 26. The decision, which goes a long way toward shearing patent privileges, was not a complete surprise, being consistent with the attitude of the Court in the recent Bathtub case (Standard Sanitary Mfg. Co. v. U. S., 226 U. S. 20). It suggests what comes very near being a reversal of the decision in the Dick case (Henry v. Dick Co., 224 U. S. 1), though this latter case was different in that it involved the enforced use of accessories which were not themselves patented. . The "TheCourt right (Day, to make, J.) said: use and — sell an invented article is not derived from the patent law. This right existed before and without the passage of the law and was always the right of an inventor. The act secured to the inventor the exclusive right to make, use and vend the thing patented, and consequently to prevent others from exer cising like privileges without the consent of the patentee. . . . "The question now before this court for judi cial determination is: May a patentee by notice limit the price at which future retail sales of the patented article may be made, such article being in the hands of a retailer by purchase from a jobber who has paid to the agent of the patentee the full price asked for the article sold? "The object of the notice is said to be to effec tually maintain prices and to prevent ruinous competition by the cutting of prices in sales of the patented article. That such purpose could not be accomplished by agreements concerning articles not protected by the patent monopoly was settled by this court in the case of Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, in which it was held that an attempt to thus fix the price of an article of general use would be against public policy and void. It was doubt less within the power of Congress to confer such right of restriction upon a patentee. Has it done so? The question has not been determined in any previous case in this court, so far as we are aware. It was dealt with under the copy right statute, however, in the case of BobbsMerrill Co. v. Straus, 210 U. S. 339. In that case it was undertaken to limit the price of copy righted books for sale at retail by a notice on each book fixing the price at one dollar and stating that no dealer was licensed to sell it for less and that a sale at a less price would be treated as an infringement of the copyright. It was there held that the statute, in securing to the holder of the copyright the sole right to vend copies of the book, conferred a privilege which, when the book was sold, was exercised by the
