The Compulsory Working of Patents

view by the framers of the Constitu tion) and then proceed to work his patented invention embodying the in vention of the expired patent. In this way the patentee of the secondary in vention may reap the just reward for his labor. Under the proposed law, as we shall see, the holder of the servient patent would be compelled to grant a license to the holder of the dominant patent upon the ground that the former's patented invention "is being withheld or suppressed" for the purpose or with the result of preventing competition. On the 16th day of April, 1912, Rep resentative Oldfield of Arkansas intro duced a bill seeking to obtain what may be termed "The Compulsory Working of Patents." The bill was at once re ferred to the House Committee on Patents and is known as House bill No. 23,417. On August 8, 1912, the Committee on Patents reported the bill back to the House with amendment in the nature of a Substitute Bill (Report No. 1,161) with the recommendation that the amended or Substitute Bill be passed. This bill was committed to the Committee of the Whole House on the State of the Union and ordered to be printed (Union Calendar No. 370). As contra-distinguished from the decisions of the U. S. Supreme Court, the larger part of the present or Substitute Bill is devoted to provisions attempting to bring patent property within the provisions of the Sherman Anti-Trust Law approved July 2, 1890. Before considering the bill, as now amended, the following questions may be asked: — First: Do the provisions of the follow ing quoted from the Patent Committee's recently reported Substitute Bill carry out the spirit of the Constitutional Clause? Obviously not. Second: Are these proposed amend

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ments calculated to secure for limited times to inventors "the exclusive right to their discoveries" within the terms of the Constitution? Obviously not. By the terms of section 1 of the Sub stitute Bill it is proposed to amend sec tion forty-eight hundred and eightyfour of the Revised Statutes to read as follows : — Sec. 4884. Every patent shall contain a short title or description of the invention or discovery correctly indicating its nature and design, and shall have annexed thereto and made a part thereof a copy of the specification, claims, and drawings of the application therefor, to which it shall refer for the particulars of the invention or discovery, and contain a grant to the patentee, his heirs, or assigns, of the exclusive right to make, use, and vend the invention or discovery throughout the United States and all Territories and possessions under the jurisdiction thereof for the term of seventeen years. But every patent granted for an invention shall be so limited as to expire nineteen years from the date of the filing in this country of the applica tion upon which the patent was granted, exclu sive of the time actually consumed by the Patent Office or the courts in considering the application and where the application has been involved in interference, of the actual time in which it has been so involved; and in no case shall the patent be in force more than seventeen years. The district court wherein the owner of a patent or of any interest therein has a residence or established place of business shall have juris diction to compel the granting of a license under such patent under the circumstances hereinafter set forth. The person applying for such license shall file a bill in equity setting forth briefly the facts and circumstances, and the court shall there upon hear the person applying for such license and the owner of the patent. If the applicant shall allege and prove to the satisfaction of the court that the patented invention is being with held or suppressed by the owner of the patent, or those claiming under him, for the purpose or with the result of preventing any other person from using the patented process, or making, using, and selling the patented article in the United States in competition with any other article or process, patented or unpatented, used, or made, used and sold, in the United States by