h of the Court. ntinental Paper Bag Co. › U. S. 405; Crown Die & », 261 U. S. 24, 34; WoodBU. S. 50, 55; Fox Film Corp. 127; Hartford-Empire Co. v. 386, 433. No question of non-use l Gasoline Corp. v. United States, the court below relied, and it lends contention that a patentee may not patent as a protection against misapproinvention, even though it is not used. There only that the monopoly of a patent afforded for violations of the Sherman Act which the had effected by using his patent to enlarge the monopoly beyond the grant and as a means of insing 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 forfeiture 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 1 See Hartford-Empire Co. v. United States, supra, 433, n. 26. 2 See Hartford-Empire Co. v. United States, supra, n. 27. DOUGLAS, J., dissenting. 324 U.S. his complete machine is in no way inconsistent with petitioner's making other permissible 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. 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. 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 F. 204, 212. In 1896 that rule was repudiated by the Circuit 370 DOUGLAS, J., dissenting. Court of Appeals for the Sixth Circuit in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 F. 288, 295, 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, 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, § 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 DOUGLAS, J., dissenting. 324 U.S. 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. 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 self-interest 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 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. 370 DOUGLAS, J., dissenting. might result in further invention by competitors.2 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. 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 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 all-embracing claim, calculated by its wide generalizations and ambiguous language to discourage further invention in the same department of industry . . .' |