to protect the whole invention was to be achieved by complete suppression of the use of the subcombination invention and that the suppression for the protection of the complete machine would invalidate the patent because it would be contrary to the constitutional purpose and to the spirit if not the letter of the patent laws. We think both assumptions are unwarranted. Section 4886 of the Revised Statutes authorizes "any person who has invented any:

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new and useful machine" to "obtain a patent." The patent grant is not of a right to the patentee to use the invention, for that he already possesses. It is a grant of the right to exclude others from using it. As the statute, R. S. § 4884 provides, the grant is of the "exclusive right to make, use and vend" the invention, and this includes the exclusive right to license others to make, use and vend it. By the very terms of the statute the grant is nothing more than a means of preventing others, except under license from the patentee, from appropriating his invention.

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It by no means follows that such a grant is an inconsistent or inappropriate exercise of the constitutional authority of Congress "to promote the Progress of Science and useful Arts" by securing to inventors "the exclusive Right to their Discoveries." Congress, in the choice of means of promoting the useful arts by patent grants, could have provided that the grant should be conditioned upon the use of the patented invention, as in fact it did provide by the Act of 1832 (4 Stat. 577) authorizing the issue of patents to aliens conditioned upon the use of the invention, which provision was later repealed (5 Stat. 117, 125). But Congress was aware that an unpatented invention could be suppressed and the public thus deprived of all knowledge or benefit of it. It could have concluded that the useful arts would be best promoted by compliance with the conditions of the statutes which it did enact, which require that patents be granted only for a limited term upon an application fully disclosing the invention and the manner of making and using it. It thus gave to the inventor limited opportunity to gather material rewards for his invention and secured to the public the benefits of full knowledge of the invention and the right to use it upon the expiration of the patent.

[8] This Court has consistently held that failure of the patentee to make use of a patented invention does not affect the validity of the patent. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 136 O. G. 1297; Crown Co. v. Nye Tool Works, 261 U. S. 24, 34, 312 O. G. 400; Woodbridge v. United States, 263 U. S. 50, 55, 327 O. G. 683; Fox Film Corp. v. Doyal, 286 U. S. 123, 127; HartfordEmpire Co. v. United States, 323 U. S. 386, 433. No question of nonuse was involved in Ethyl Gasoline Corporation v. United States, supra, 459, on which the court below relied, and it lends no support to the contention that a patentee may not rightly use his patent as a

protection against misappropriation of his invention, even though it is not used. There it was held only that the monopoly of a patent afforded no defense for violations of the Sherman Act which the patentee had effected by using his patent to enlarge the patent monopoly beyond the grant and as a means of increasing the use of an independent patented invention.

Congress has frequently been asked to change the policy of the statutes as interpreted by this Court by imposing a forfeiture1 or providing for compulsory licensing if the patent is not used within a specified time, but has not done so.

We have no occasion to consider here whether a better rule governing the grant of patents could be devised than that prescribed by Congress, as this Court has interpreted it; or whether the courts on equitable principles should decline to enjoin patent infringements or decline to compel the issue of a patent if and when it appears that the patentee or inventor intends to make no use of the invention. The record neither calls upon nor permits us to decide any of these questions, for it fails to establish that petitioner has any such intention. Petitioner's intended use of the patent to prevent others from appropriating it and by that means from appropriating an essential part of his complete machine is in no way inconsistent with petitioner's making other permissable uses of the subcombination patent. In fact, he does use the subcombination as a part of his completed machine and proposes to continue to use it. Execution of his declared purpose to prevent appropriation of either of his inventions, whether used separately or together, would not prevent his licensing others to make, use and vend the subcombination, on terms which would adequately protect the value of the monopoly of both his inventions to which he is entitled by the patent laws. And we cannot say that others, who could not secure a license to use the complete machine, would not find it profitable to secure, or that petitioner would not find it profitable to grant, licenses to use the subcombination which the court below has found to be a useful device which has advanced the art.

[9] The record establishes no intention by petitioner not to use his invention, and no proposed use of it disclosed or suggested by the record affords any basis for withholding the grant of the patent. The judgment below must therefore be reversed, and the cause remanded to the court of appeals for further proceedings in conformity to this. opinion to enable it to consider and decide the issues raised by the pleadings. See Bates v. United States, 323 U. S. 15, 17 and cases cited. Reversed.

1 See Hartford-Empire Co. v. United States, supra, 433, n. 26.

2 See Hartford-Empire Co. v. United States, supra, n. 27.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MURPHY concur, dissenting:

The right of suppression of a patent came into the law over a century after the first patent act was passed. In 1886 Judge Blodgett had ruled that a patentee

is bound either to use the patent himself or allow others to use it on reasonable or equitable terms. Hoe v. Knap, 27 Fed. 204, 212.

In 1896 that rule was repudiated by the Circuit Court of Appeals for the Sixth Circuit in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 Fed. 288, 295, 78 O. G. 171, where the court stated that a patentee's

title is exclusive, and so clearly within the constitutional provisions in respect of private property that he is neither bound to use his discovery himself, nor permit others to use it.

That theory was adopted by this Court in Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 136 O. G. 1297, decided in 1908. That was an infringement suit. One defense was that the patentee had suppressed the patent. The Court held, Mr. Justice Harlan dissenting, that suppression of the patent was no defense; that the patentee's "right can only retain its attribute of exclusiveness by a prevention of its violation." Id., p. 430.

I think it is time to be rid of that rule. It is inconsistent with the Constitution and the patent legislation which Congress has enacted. Article I, Section 8 of the Constitution grants Congress the power

to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Of the various enumerated powers it is the only one which states the purpose of the authority granted Congress.

The Congress is given no general power to issue letters patent or to reward inventors as it will. An experience with grants of monopoly in England was fresh in the minds of the Fathers; the lesson had been underlined in recent differences with the Crown. Hamilton, Patents and Free Enterprise (1941), p. 152, Temporary National Economic Committee, Monograph No. 31, 76th Cong., 3d Sess.

The purpose "to promote the progress of science and useful arts" accordingly provides the standards for the exercise of the power and sets the limits beyond which it may not go. That purpose also provides the guide for the interpretation of patent laws enacted pursuant to that power.

It is a mistake therefore to conceive of a patent as but another form of private property. The patent is a privilege "conditioned by a public purpose." Mercoid Corp. v. Mid-Continent Co., 320 U, S. 661, 666, 561 O. G. 345. The public purpose is "to promote the progress of science and useful arts." The exclusive right of the inventor is but

the means to that end. That was early recognized by this Court. See Pennock v. Dialogue, 2 Pet. 1, 19; Kendall v. Winsor, 21 How. 322, 327-328; Seymour v. Osborne, 11 Wall. 516, 533-534. But the Paper Bag case marked a radical departure from that theory. It treated the “exclusive” right of the inventor as something akin to an "absolute" right. It subordinated the public purpose of the grant to the selfinterest of the patentee.

The result is that suppression of patents has become commonplace. Patents are multiplied to protect an economic barony or empire, not to put new discoveries to use for the common good.1

It is common practice to make an invention and to secure a patent to block off a competitor's progress. By studying his ware and developing an improvement upon it, a concern may "fence in" its rival; by a series of such moves, it may pin the trade enemy within a technology which rapidly becomes obsolete. As often as not such maneuvers retard, rather than promote, the progress of the useful arts. Invariably their effect is to enlarge and to prolong personal privilege within the public domain. Hamilton, op. cit., supra, p. 161.

One patent is used merely to protect another. The use of a new patent is suppressed so as to preclude experimentation which might result in further invention by competitors. A whole technology is blocked off. The result is a clog to our economic machine and a barrier to an economy of abundance.

It is difficult to see how that use of patents can be reconciled with the purpose of the Constitution "to promote the progress of science and the useful arts." Can the suppression of patents which arrests the progress of technology be said to promote that progress? It is likewise difficult to see how suppression of patents can be reconciled with the provision of the statute which authorizes a grant of the "exclusive right to make, use, and vend the invention or discovery." Rev. Stat. § 4884, 35 U. S. C. § 40. How may the words "to make, use, and vend" be read to mean "not to make, not to use, and not to vend"? Take the case of an invention or discovery which unlocks the doors of science and reveals the secrets of a dread disease. Is it possible that a patentee could be permitted to suppress that invention for seventeen years (the term of the letters patent) and withhold from humanity the benefits of the cure? But there is no difference in principle between that case and any case where a patent is suppressed because of some immediate advantage to the patentee.

1 For illustrations see Investigation of Concentration of Economic Power, Hearings, Temporary National Economic Committee, Pt. 2 (1939), pp. 345, 776; Hamilton, op. cit.. supra, pp. 46-47, 59.

2 The vice is the same as the practice, consistently condemned by this Court, of writing into the claims broad, general specifications. As stated by Mr. Justice Bradley in Carlton v. Bokee, 17 Wall. 463, 471-472, "We think it proper to reiterate our disapprobation of these ingenious attempts to expand a simple invention of a distinct device into an allembracing claim, calculated by its wide generalizations and ambiguous language to discourage further invention in the same department of industry..."

I think it is time to return to the earlier, and I think the true, philosophy of the patent system. We should not pass on to Congress the duty to remove the private perquisites which we have engrafted on the patent laws. This Court was responsible for their creation. This Court should take the responsibility for their removal. I would adopt the view of Hoe v. Knap, supra. In a case like the present (Butterworth v. Hoe, 112 U. S. 50, 61, 129 O. G. 615), as in infringement suits (Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 492–494, 536 O. G. 3) the Court sits as a court of equity. It should withhold its aid from a patentee who has employed or plans to employ the patent not to exploit the invention but to suppress it in order to protect another patent or otherwise. Cf. Ethyl Gasoline Co. v. United States, 309 U. S. 436, 459, 515 O. G. 827. If that purpose were clear, a patent should not issue in the first instance. If it has been issued and not cancelled and the patent has been suppressed, anyone should be permitted to use it at least on payment of reasonable royalties. In that way the constitutional objective will be more nearly realized-the product of the inventive genius of the human mind will be put to work in the economy.

Mr. Justice RUTLEDGE, dissenting:

I would affirm the judgment. But I do not reach the interesting and important questions debated by the Court's opinion and my dissenting brethren. They are of 'such a character that, in my opinion, they should not be determined in the absence of a record presenting facts and issues making this necessary. In this case the facts do not so clearly present the issues of "fencing" and "blocking" that decision. upon them is required or appropriate.

Those issues were not raised or considered until the case reached the court of appeals. Evidence concerning intent to suppress was not received in the district court and petitioner is entitled to its day in court upon that question, unless it has conceded it. The record, as this Court's opinion indicates, is not clear that the concession has been made with the effect of admitting that petitioner had no intention to exploit the patent. If, as the trial court found, the machine without the splitting knife would not "produce any useful result," this fact together with the assertion of the claims relating to the full combination, or with it and the concessions apparently made in the court of appeals, might be sufficient to sustain that court's conclusion that the only purpose of the alleged invention was to "fence" or "block." But the court of appeals expressly rejected the trial court's finding in this respect and a showing of motion pictures here, such as took place in the court

3 These situations are to be distinguished from the case of the inventor who though he has an expectation of exploiting the patent has not yet arranged the necessary financing, or, for other reasons, has not yet been able to go into production.