Argument for Plaintiffs-Appellants.

229 U. S.

granted by his patent, has been repeatedly upheld. On the other hand, the author can only assign his right as a whole. He could not subdivide the territory in any such way. See Bobbs-Merrill Case, 147 Fed. Rep. 23; Crown Co. v. Standard Brewery, 174 Fed. Rep. 258.

Rights under the patent statute are much broader than those under the copyright statute. The patent statute gives a complete monopoly of the invention. The copyright statute only gives the right of duplicating and the right of vending. "Making" under the patent statute covers every form of the invention which performs the same function in substantially the same way, without regard to appearance.

The patent statute gives the inventor absolute control over the use of the invention and the inventor can forbid its use in any but a particular locality. No author, however, could restrict the reading of his book only to the person who purchases it, or to its being read only in a certain town.

The monopoly granted to the inventor is very much more extensive than that granted to the author, and the scope of "vending" under the patent statute cannot be measured by the scope of "vending" under the copyright statute. The Fair v. Dover Mfg. Co., 166 Fed. Rep. 117; Automatic Pencil Co. v. Goldsmith, 190 Fed. Rep. 205; Indiana Mfg. Co. v. Nichols, 190 Fed. Rep. 579; Edison v. Smith, 188 Fed. Rep. 925; Waltham Watch Co. v. Keene, 191 Fed. Rep. 855.

The cases cited by defendant, to-wit: Bloomer v. McQuewan, 14 How. 539; Adams v. Burke, 17 Wall. 453; Chaffee v. Boston Belting Co., 22 How. 217; Morgan Envelope Co. v. Albany Paper Co., 152 U. S. 425; Keeler v. Standard Folding Bed Co., 157 U. S. 659; Bement v. National Harrow Co., 186 U. S. 70, do not sustain his proposition to the effect that a sale of a patented article under a license restriction borne by that article, and known to the pur

chaser, frees the article from the restrictions. Patterson v. Kentucky, 97 U. S. 501.

Defendant's right in the physical materials of the packages of Sanatogen which be bought is unquestioned. He has, however, no right to use those materials in violation of the reserved portion of monopoly, namely, to sell the package at a retail price lower than one dollar. v. Dick, 224 U. S. 1.

Henry

Plaintiffs' patent grants them the right to exclude all others from any making, using or selling of the patented invention. In Henry v. Dick, the right was sustained of a patentee to enjoin others from violation of conditions as to use attached to a sale.

The patentee's control over selling is coördinate and co-extensive with that over using his invention.

Plaintiffs did not receive the full consideration for the patented article when they received the purchase money, and they have a continuing interest in the article.

The patentee's control over the price of his patented article is reasonable, proper and consistent with sound public policy.

This court has recognized the patentee's control over the resale price of his patented article, and such control comes within the principle decided in Henry v. Dick.

Mr. Daniel W. Baker, with whom Mr. Frank J. Hogan was on the brief, for O'Donnell, defendant-appellee.

Mr. Frederick P. Fish and Mr. Thomas W. Pelham, by leave of court and on behalf of the Gillette Safety Razor Company, filed a brief in support of plaintiffs' contention.

Mr. Horace Pettit, by leave of court and on behalf of the Victor Talking Machine Company, also filed a brief in support of plaintiffs' contention.

MR. JUSTICE DAY delivered the opinion of the court.

This case is on a certificate from the Court of Appeals of the District of Columbia. The facts stated in the certificate are:

"Bauer & Cie, of Berlin, Germany, copartners, being the assignees of letters patent of the United States, dated April 5, 1898, No. 601,995, covering a certain water soluble albumenoid known as 'Sanatogen' and the process of manufacturing the same, about July, 1907, entered into an agreement with F. W. Hehmeyer, doing business in the City of New York under the trade name of The Bauer Chemical Company, whereby Hehmeyer became and has since been the sole agent and licensee for the sale of said product in the United States, the agreement contemplating that Hehmeyer should have power to fix the price of sale to wholesalers or distributors and to retailers, and to the public. The agreement further contemplated that said product should be furnished Hehmeyer at manufacturing cost, the net profits obtained by him to be shared equally by the parties to the agreement. Since April, 1910, this product has been uniformly sold and supplied to the trade and to the public by the appellants and their licensees in sealed packages bearing the name 'Sanatogen,' the words 'Patented in U. S. A., No. 601,995,' and the following:

"Notice to the Retailer.

"This size package of Sanatogen is licensed by us for sale and use at a price not less than one dollar ($1.00). Any sale in violation of this condition, or use when so sold, will constitute an infringement of our patent No. 601,995, under which Sanatogen is manufactured, and all persons so selling or using packages or contents will be liable to injunction and damages.

"A purchase is an acceptance of this condition. All

rights revert to the undersigned in the event of violation.

THE BAUER CHEMICAL Co.'

"The appellee is the proprietor of a retail drug-store at 904 F Street, N. W., in this city. He purchased of the Bauer Chemical Company for his retail trade original packages of said Sanatogen bearing the aforesaid notice. These packages he sold at retail at less than one dollar and, persisting in such sales, appellants in March, 1911, severed relations with him. Thereupon appellee, without the license or consent of the appellants, purchased from jobbers within the District of Columbia, said jobbers having purchased from appellants, original packages of said product bearing the aforesaid notice, sold said packages at retail at less than the price fixed in said notice, and avers that he will continue such sales."

The question propounded is: "Did the acts of the appellee, in retailing at less than the price fixed in said notice, original packages of 'Sanatogen' purchased of jobbers as aforesaid, constitute infringement of appellants' patent?"

The protection given to inventors and authors in the United States originated in the Constitution, § 8 of Art. I of which authorizes the Congress "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." This protection, so far as inventors are concerned, has been conferred by an act of Congress passed April 10, 1790, and subsequent acts and amendments. The act of 1790, 1 Stat. 109, c. 7, granted "the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery." In 1793 (Feb. 21, 1793, 1 Stat. 318, c. 11) the word "full" was substituted for the word "sole," and in 1836 (July 4, 1836, 5 Stat. 117, § 5,

c. 357) the word "constructing" was omitted. This legislation culminated in § 4884 of the Revised Statutes, the part with which we are dealing being practically identical with the act of July 8, 1870, 16 Stat. 198, § 22, c. 230. It provides that every patent shall contain "a grant to the patentee, his heirs and assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery."

The right to make, use and sell an invented article is not derived from the patent law. This right existed before and without the passage of the law and was always the right of an inventor. The act secured to the inventor the exclusive right to make, use and vend the thing patented, and consequently to prevent others from exercising like privileges without the consent of the patentee. Bloomer v. McQuewan, 14 How. 539, 549; Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 425. It was passed for the purpose of encouraging useful invention and promoting new and useful improvements by the protection and stimulation thereby given to inventive genius, and was intended to secure to the public, after the lapse of the exclusive privileges granted, the benefit of such inventions and improvements. With these beneficent purposes in view the act of Congress should be fairly or even liberally construed; yet, while this principle is generally recognized, care should be taken not to extend by judicial construction the rights and privileges which it was the purpose of Congress to bestow.

In framing the act and defining the extent of the rights and privileges secured to a patentee Congress did not use technical or occult phrases, but in simple terms gave an inventor the exclusive right to make, use and vend his invention for a definite term of years. The right to make can scarcely be made plainer by definition, and embraces the construction of the thing invented. The right to use is a comprehensive term and embraces within its meaning