In Patterson v. Kentucky, (97 U. S., 501,) it was said that an inventor's own right to the use was not enlarged or affected by a patent. See also Willson v. Rouseau, (4 How., 646, 674;) Seymour v. Osborne, (11 Wall., 516, 533;) Cammeyer v. Newton, (C. D., 1887, 182; 11 O. G., 287; 94 U. S., 225;) Densmore v. Scofield, (102 U. S., 375.)

It may be said that these cases deal only with the right of a patentee, and not with the remedy, whether at law or equity, that he may, at any time, or in all his situations, be entitled to. And there is no case in this Court that explicitly does so. However, in the three last cases cited it was decided that patents are property, and entitled to the same rights and sanctions as other property.

In Bement v. National Harrow Company, (186 U. S., 70, 90,) adopting the language of the Circuit Court of Appeals for the Sixth Circuit in Heaton-Peninsular Company v. Eureka Specialty Company, (C. D., 1897, 216; 78 O. G., 171; 77 Fed., 294,) it was said:

If he [a patentee] sees fit, he may reserve to himself the exclusive use of the invention or discovery. If he will neither use his device nor permit others to use it, he has but suppressed his own. * His title is exclusive and so clearly within the constitutional provisions in respect to private property that he is neither bound to use his discovery himself or permit others to use it. The dictum found in Hoe v. Knap, (C. D., 1886, 389; 36 O. G., 1244; 27 Fed. Rep., 204,) is not supported by reason or authority.

In Hoe v. Knap, Judge Blodgett refused an injunction against the infringer, holding that

under a patent which gives a patentee a monopoly, he is bound to either use the patent himself or allow others to use it on reasonable terms.

In a number of the circuit courts of appeals it has been decided that as a consequence of the exclusive right of the patentee he is entitled to an injunction against an infringer, even though he (the patentee) does not use the patented device. The cases are inserted in the margin, also decisions of the circuit courts, some of which define

• Edison v. Mt. Morris Co., 57 F. R., 642, 644 (2d Cir.); Heaton-Peninsular v. Eureka, C. D., 1897, 216; 78 O. G., 171; 77 F. R., 294 (6th Cir.); Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 F. R., 845, 868 (4th Cir.); Fuller v. Berger, 120 F. R., 274, 277 (7th Cir.); Lamson Consolidated Store Service Co. v. Hillman, 123 F. R., 416, 422 (7th Cir.); Victor Talking Machine Co., v. Fair, 123 F. R., 425 (7th Cir.); U. S. Seeded Raisin Co. v. Griffin, 126 F. R., 364, 368 (9th Cir.); Rupp v. Elliott, 131 F. R., 730 (6th Cir.); Munroe v. Railway Appliance Co., 145 F. R., 646, 648 (7th Cir.); Filter Co. v. Jackson, 140 F. R., 340, 343 (8th Cir.); U. S. Fastener Co. v. Bradley, 149 F. R., 222 (2d Cir.); Rubber Tire Co. v. Milwaukee, 154 F. R., 358, 361 (7th Cir.); Indiana Mfg. Co. v. J. I. Case Co., 154 F. R., 365 (7th Cir.).

Carr v. Rice, 1 Fish., 198, 200 (N. Y.); Wintermute v. Redington, 1 Fish., 243 (Ohio); Ransom v. Mayor, 1 Fish., 255 (N. Y.); Pitts v. Wemple, 2 Fish., 15 (Ill.); Whitney v. Emmett, 1 Bald., 304; Broadnax v. Central Stock Yard, 4 F. R., 214, 216 (N. J.); in re Brosnahan, jr., 18 F. R., 62 (Justice Miller) (Mo.); Consolidated Roller Mill Co. v. Coombs, 39 F. R., 803 (Mich.); Wirt v. Hicks,

the right of a patentee and others holding that as incident to the right he is entitled to an injunction, though he had not used his invention.

Counsel for petitioner cites counter cases, which he contends are more direct authority. He also reviews the cases cited by respondent, and contends that they are not relevant to the question in the case at bar, which is not that of the simple non-use of a patent, but a long and unreasonable non-use of it. Judge Aldrich, in his dissenting opinion in the court of appeals, excluded the cases as authoritative for a different reason than counsel expresses. The learned Judge said:

Simple non-use is one thing. Standing alone, non-use is no efficient reason for withholding injunction. There are many reasons for non-use which, upon explanation, are cogent, but when acquiring, holding and non-use are only explainable upon the hypothesis of a purpose to abnormally force trade into unnatural channels-a hypothesis involving an attitude which offends public policy, the conscience of equity, and the very spirit and intention of the law upon which the legal right is founded-it is quite another thing. This is an aspect which has not been considered in a case like the one here.

Respondent attacks the conclusion of Judge Aldrich and that of petitioner, and insists that there is nothing in the record to show that the non-use of the patent was either unreasonable or sinister. A very strong argument is presented by respondent. Its counsel pointedly say that "there is no record evidence at all on the subject or character of complainants' [respondents'] use or non-use," and points out that neither the assignments of error on appeal to the circuit court of appeals nor the petition for rehearing in that court presented the question that the injunction should be denied on the ground of mere non-use or unreasonable non-use. Let us see what the Courts say and what petitioner says. The Circuit Court says:

We have stated that no machine for practical manufacturing purposes was ever constructed under the Liddell patent. The record also shows that the C. D., 1891, 395; 55 O. G., 867; 46 F. R., 71 (N. Y.); Campbell v. Manhattan Railway, C. D., 1892, 492; 60 O. G., 894; 49 F. R., 930 (N. Y.); Edison v. Mt. Morris, 57 F. R., 642, 644 (N. Y.); Masseth v. Johnston, C. D., 1894, 233; 67 O. G., 143; 59 F. R., 612 (Pa.); Bonsack v. Smith, C. D., 1895, 613; 73 O. G., 963; 70 F. R., 383 (N. C.); Columbia v. Freeman, 71 F. R., 302, 306 (Mo.); Wyckoff v. Wagner, 88 F. R., 515 (N. Y.); White v. Peerless, 111 F. R., 190 (Pa.); Brodrick v. Mayhew, 131 F. R., 92 (Wis.); National Co. v. Daab, 136 F. R., 891, 895 (N. J.); Hoe v. Miehle, 141 F. R., 115 (N. Y.); Hartman v. Park & Son, 145 F. R., 358 (Ky.).

Isaacs v. Holland, 4 Wash., 54; Ogle v. Ege, 4 Wash., 584; Mott v. Bennett, 2 Fisher, 642; Sullivan v. Redfield, 1 Paine, 441; Magic Ruffle Co. v. Daughlas, 2 Fisher, 333; Hoe v. Knap, C. D., 1886, 389; 36 O. G., 1248; 27 Fed., 204; Geramin v. Wilgus, 67 Fed., 600, C. C. A. Ninth Circuit; Campbell Printing Press Co. v. Duplex Printing Press Co., C. D., 1898, 349; 82 O. G., 1050; 86 Fed., 331; Robinson on Patents, vol. 1, sec. 43; Curtis on Patents, sec. 320 of the two first editions and sec. 406 of the third and fourth editions.

complainant, so to speak, locked up its patent. It has never attempted to make any practical use of it, either itself or through licenses, and, apparently, its proposed policy has been to avoid this. In this respect it has not the common excuse of a lack of means, as it is unquestioned that the complainant is a powerful and wealthy corporation. We have no doubt that the complainant stands in the common class of manufacturers who accumulate patents merely for the purpose of protecting their general industries and shutting out competitors.

The comment of the Circuit Court of Appeals is:

The machine of the patent in suit is mechanically operative, as was shown experimentally for the purposes of this suit, but it has not been put into commercial use. No reason for the non-user appears in the evidence, so far as we can discover. The defendant's machine has been an assured commercial success for some years. It was suggested at the oral argument that an unused patent is not entitled to the protection given by the extraordinary remedy of an injunction. This contention was not made in the defendant's printed brief. While this question has not been directly passed upon, so far as we are informed, in any considered decision of the Supreme Court, yet the weight of authority is in favor of the complainant.

The cases were cited.

If these statements are to be reconciled it can only be by supposing that the circuit court inferred the motive of the respondents from the unexplained non-use of the patent. But petitioner has given its explanation of the purpose of respondent. Quoting Judge Aldrich, that the patent in suit has been "deliberately held in non-use for a wrongful purpose," petitioner asks:

What was that wrongful purpose? It was the purpose to make more money with the existing old reciprocating Lorenz & Honiss machines and the existing old complicated Stilwell machines than could be made with new Liddell machines, when the cost of building the latter was taken into account. And this purpose was effective to cause the long and invariable non-use of the Liddell invention, notwithstanding that new Liddell machines might have produced better paper bags than the old Lorenz & Honiss machines or the old Stilwell machines were producing.

But, granting all this, it is certainly disputable that the non-use was unreasonable or that the rights of the public were involved. There was no question of a diminished supply or of increase of prices, and can it be said, as a matter of law, that a non-use was unreasonable which had for its motive the saving of the expense that would have been involved by changing the equipment of a factory from one set of machines to another? And even if the old machines could have been altered, the expense would have been considerable. As to the suggestion that competitors were excluded from the use of the new patent, we answer that such exclusion may be said to have been of the very essence of the right conferred by the patent, as it is the privilege of any owner of property to use or not to use it, without question of motive. (Connolly v. Union Sewer Pipe Co., 184 U. S., 546.)

The right which a patentee receives does not need much further explanation. We have seen that it has been the judgment of Congress from the beginning that the sciences and the useful arts could be best advanced by giving an exclusive right to an inventor. The only qualification ever made was against aliens in the act of 1832. That act extended the privilege of the patent law to aliens, but required them

to introduce into public use in the United States the invention or improvement within one year from the issuing thereof

and indulged no intermission of the public use for any period longer than six months. A violation of the law rendered the patent void. The act was repealed in 1836. It is manifest, as is said in Walker on Patents, section 106, that Congress has not "overlooked the subject of non-user of patented inventions."

And another fact may be mentioned. In some foreign countries the right granted to an inventor is affected by non-use. This policy, we must assume, Congress has not been ignorant of nor of its effects. It has, nevertheless, selected another policy; it has continued that policy through many years. We may assume that experience has demonstrated its wisdom and beneficial effect upon the arts and sciences.

From the character of the right of the patentee we may judge of his remedies. It hardly needs to be pointed out that the right can only retain its attribute of exclusiveness by a prevention of its violation. Anything but prevention takes away the privilege which the law confers upon the patentee. If the conception of the law that a judgment in an action at law is reparation for the trespass, it is only for the particular trespass that is the ground of the action. There may be other trespasses and continuing wrongs and the vexation of many actions. These are well-recognized grounds of equity jurisdiction, especially in patent cases, and a citation of cases is unnecessary. Whether, however, a case cannot arise where, regarding the situation of the parties in view of the public interest, a court of equity might be justified in withholding relief by injunction we do not decide. Decree affirmed.

Mr. Justice HARLAN thinks that the original bill should have been dismissed. He thinks the facts are such that the court should have declined, upon grounds of public policy, to give any relief to the plaintiff by injunction, and he dissents from the opinion and judg

ment.

[Supreme Court of the United States.]

FRASCH v. MOORE.

Decided October 19, 1908.

137 O. G., 230.

DECISION OF COURT OF APPEALS OF DISTRICT OF COLUMBIA IN INTERFERENCE CASES-NOT FINAL-NO APPEAL TO SUPREME COURT OF THE UNITED STATES.

A decision of the Court of Appeals of the District of Columbia on an appeal from the Commissioner of Patents is not "final" within the meaning of section 8 of the act of February 9, 1893, (27 Stat., 434, 436, c. 74,) and therefore is not appealable to the Supreme Court of the United States. APPEAL from and in error to the Court of Appeals of the District of Columbia.

Mr. Charles J. Hedrick for the appellant and plaintiff in error. Solicitor General Hoyt for the appellee and defendant in error.

STATEMENT OF THE CASE.

Frasch applied for a patent for an invention of a new and useful improvement in the art of making salt by evaporation of brine. He expressed his alleged invention in six claims, three of which were for the process of removing incrustation of calcium sulfate from brineheating surfaces, and three of them were for an apparatus for use in the process.

At the time when the application was filed, Rule 41 of the Patent Office did not permit the joinder of claims for process and claims for apparatus in one and the same application. The Examiner required division between the process and apparatus claims, and refused to act upon the merits. An appeal was taken to the Examiners-inChief, but the Examiner refused to forward it. A petition was then filed, asking the Commissioner of Patents to direct that the appeal be heard. The Commissioner held that the Examiner was right in refusing to forward the appeal. (C. D., 1902, 65; 98 O. G., 1967.) From that decision appeal was taken to the court of appeals of the District, which held that it did not have jurisdiction to entertain it. (C. D., 1902, 560; 100 O. G., 1977.) Frasch then filed a petition in this Court for a mandamus, directing the court of appeals to hear and determine the appeal, which petition was dismissed. (Ex parte Frasch, C. D., 1904, 716; 109 O. G., 554; 192 U. S., 566.)

But in United States ex. rel. Steinmetz v. Allen, (C. D., 1904, 703; 109 O. G., 549; 192 U. S., 543,) it was held that Rule 41, as applied by the Commissioner, was invalid, and that the remedy for his action was by mandamus in the supreme court of the District to compel the