Page:The Green Bag (1889–1914), Volume 25.pdf/46

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The Editor's Bag The facts in Dr. Miles Medical Co. v. Park were essentially similar. There the manufacturer sought to enjoin a Cin cinnati firm from selling proprietary medicines at cut rates, and Mr. Justice Holmes, dissenting, said: "There is no statute covering the case; there is no body of precedent that, by ineluctable logic, requires the conclusion to which the court has come." In the Bobbs-Merrill case adherence to this principle of a vendor's freedom of contract would have enabled the owner of the copyright to regulate the terms of all successive sales of the copy righted book, and the question does not seem really to have turned on the law of copyright, but on rights of property in general. In the Mimeograph case it was properly held that restrictions on the use of the article sold might be im posed in the form of a so-called "license restriction," but there again the extent of the vendor's right, rather than the patent law, really furnished the point in controversy, and the attitude of the Court, in treating the problem as one of patent law and in dealing with the vio lation of the agreement of sale as an infringement of patent, was somewhat strained. In the Bath Tub case, why should not the owners of the patent, and their assignees or licensees, by virtue of their control of their own property, have been permitted to sell it on such terms as they saw fit, and to enter into such arrangement for the marketing of their product as they chose? The situation may perhaps be more clearly grasped if we treat the Bath Tub case as no more involving than the Mimeograph case any question peculiar to patent law, but the rights of vendors of goods in general. The common law freedom of contract has been limited, as we have seen, by various decisions which are in effect an exercise of the


police power holding certain methods of sale to be contrary to public policy. Suppose the vendors of a certain pro prietary medicine, or other unpatented article, had combined in the same manner as the defendants in the Bath Tub case for the purpose of controlling prices, would the case then have presented cir cumstances essentially dissimilar? On the authority of Dr. Miles Medical Co. v. Park no right of monopoly of sale would have been sustained, but in the absence of that decision the question would be whether the proprietary rights of the vendors in question could be exercised by them in combination, obviously not for the purpose of stifling competition, as they operate in an open market, but for the purpose of maintaining as high a uniform price as the market would stand. The law of conspiracy is appli cable to such a case, and it is not neces sary to hold that the conduct of the defendants would have been lawful if the same acts committed by only one of them separately would have been lawful. In these days of large corpora tions an individual may be more danger ous to the public welfare than a com bination of individuals, but that is be side the point. The common law of conspiracy, and the statutory phase of it presented by the Sherman act, would have furnished a convenient peg on which to hang a judicial finding of the guilt of any defendant entering into an unlawful combination, whether a paten tee or an ordinary owner of chattels. Obviously it is time to call a halt to those who speak of a patentee's unre stricted monopoly of sale. His patent confers the right of exclusive manufacture o his product, and perhaps also the exclusive right to its use, but in selling it he is subject to the exercise of the police power, like the vendor of any un patented article, and even such protec