THE PROTECTION OF UNUSED PATENTS
407
Cases, 909 (case No. 9,884), that in granting Simple nonuse, he concedes, is no efficient or refusing equitable relief in patent causes reason for withholding injunction, for there the courts of the. United States have fol are many reasons for nonuse, which on lowed the English Chancery practice. explanation are cogent, but a court of It would also seem to be well settled law equity may look beyond the fictitious issues that in order to show a prima facie case for in a suit; and when acquiring, holding and equitable relief by way of injunction, in a nonuse are only explainable upon the hypo suit for infringement of letters patent, the thesis of a purpose to abnormally force bill should allege: (1) that complainant has trade into unnatural channels, this is quite the title to the patent; (2) that he is in a different thing from simple nonuse. enjoyment of the patented invention, hav Under the constitution and statutes in aid ing put the same into practical use. See of the constitutional provision with refer McCoy v. Nelson, 121 U. S., 4.84-487, where ence to inventions and discoveries; it was the question of the sufficiency of the alle intended to stimulate art and invention on gations of the bill were in question; also competitive conditions by protecting the Justice Washington's opinion in Ogle v. right of each inventor, or each owner, to Ege, 4 Wash. C. C, 584; Mott v. Bennett, make, use and vend, and if equity is to aid 2 Fisher's Patent Cases, 665; Neilson v. in stultifying this plain intent through affirm Thompson, Websters Patent Cases, 277; and ative relief by injunction by protecting Curtis on Patents, sec. 328. patent aggregations held in deliberate nonAs to the proposition discussed by Judge use for the purpose of excluding all patents Aldrich in his dissenting opinion in the benefits except such as the holder sees fit to Paper Bag case, supra, it is said in The bestow, it will help to overthrow the in tended meritorious patent competition under Green Bag for June: "In the aspect most favorable to the normal conditions in trade, and will help to deny the intended benefits to the public." plaintiff the relief sought is injunctive pro However sound the conclusions reached tection to a business or an industry built up in using a particular invention, and through by Judge Aldrich in his dissenting opinion acquiring and holding in deliberate nonuse in the Paper Bag case may be (I believe they are sound), nevertheless, I firmly be a competing invention by way of protec tion. It results, therefore, he says, that a lieve that the sounder reason for reaching court of equity is asked not to protect from his conclusions is merely that the com plainant in that case, under the facts stated infringement the statutorily intended mon opoly of the right to make, use, and vend in the opinion, was not entitled to equitable under a particular patent, but to protect a relief, simply because the complainant had monopoly beyond and broader than that, not put the patented invention into coma monopoly in aid of the rightful statutory merical use, had not licensed others to do so and had shown no sound excuse for not monopoly of the patent in. use. The propo sition involves the idea of a secondary putting the invention into commercial use. The mere ownership by the complainant monopoly maintained to stifle patent com petition in the trades and industries, and of other patented inventions which it did thus contemplates a condition, which at use, had it even owned all the other existing once contravenes the purpose of the Consti patents for paper bag machines, should tution, and a monopoly of a kind and place the complainant in no worse position breadth and for a purpose in no sense ever than if it held only the patent in suit, which contemplated by the statutory contract it had not used and would not allow others which safeguards the legal right to make, to use. use and vend under a particular patent. It seems pretty well settled that as
