ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/lpf/supreme-court.patents

Text File | 1992-11-03 | 6KB | 95 lines

     In The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp.,
340 U.S. 147 (1950) Mr. Justice Douglas filed an interesting
concurring opinion for himself and Justice Black.

     "It is not enough," says Justice Douglas , "that an article is
new and useful.  The Constitution never sanctioned the patenting of
gadgets.  Patents serve a higher end--the advancement of science.  An
invention need not be as startling as an atomic bomb to be patentable.
But it has to be of such quality and distinction that masters of the
scientific field in which it falls will recognize it as an advance."
He then quotes the following from an opinion of Justice Bradley's
given 70 [now 109] years before:

     "It was never the object of those laws to grant a monopoly for
every trifling device, every  shadow of a shade of an idea, which would
naturally and spontaneously occur to any skilled mechanic or operator
in the ordinary progress of manufactures.  Such an indiscriminate
creation of exclusive privileges tends rater to obstruct than to
stimulate invention. It creates a class of speculative schemers who make
it their business to watch the advancing wave of improvement, and gather
its foam in the form of patented monopolies, which enable them to lay a
heavy tax upon the industry of the country, without contributing anything
to the real advancement of the arts.  It embarrasses the honest pursuit
of business with fears and apprehensions of concealed  liens and unknown
liabilities lawsuits and vexatious accountings for profits made in good
faith." (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).

     The opinion [of Justice Douglas, I think] concludes: "The
attempts through the years to get a broader, looser conception of
patents than the Constitution contemplates have been persistent.  The
Patent Office, like most administrative agencies, has looked with
favor on the opportunity which the exercise of discretion affords to
expand its own jurisdiction.  And so it has placed a host of gadgets
under the armour of patents--gadgets that obviously have had no place
in the constitutional scheme of advancing scientific knowledge.  A few
that have reached this Court show the pressure to monopolies to the
simplest of devices:

     Hotchkiss v. Greenwood, 11 How. 248 (1850): Doorknob made of clay
rather than metal or wood, where different shaped doorknobs had previously
been made of clay.
     Rubber-Tip Pencil Co. v. Howard, 20 Wall, 4998 (1874): Rubber caps
put on wood pencils to serve as erasers.
     Union Paper Collar Co. v. Van Dusen, 23 Wall. 530 (1875): Making collars
of parchment paper where linen paper and linen had previously been used.
     Brown v. Piper,91 U.S. 37 (1875): A method for preserving fish by freezing
them in a container operating in the same manner as an ice cream freezer.
     Reckendorfer v. Faber,92 U.S. 347 (1876): Inserting a piece of rubber
in a slot in the end of a wood pencil to serve as an eraser.
     Dalton v. Jennings, 93 U.S.271 (1876): Fine thread placed across open
squares in a regular hair net to keep hair in place more effectively.
     Double-Pointed Tack Co. V. Two Rivers Mfg. Co., 109 U.S. 117 (1883)):
Putting a metal washer on a wire staple.
     Miller v. Foree, 116 U.S.22 (1885): A stamp for impressing initials in
the side of a plug  of tobacco.
     Preston v. Manard, 116 U.S. 661 (1886): A hose reel of large diameter so
that water may flow through hose while it is wound on the reel.
     Hendy v. Miners' Iron Works, 127 U.S.370 (1888): Putting rollers on a
machine to make it movable.
     St. Germain v. Brunswick, 135 U.S. 227 (1890): Revolving cue rack.
     Shenfield v. Nashawannuck Mfg. Co,  137 U.S. 56 (1890): Using flat cord
instead of round  cord for the loop at the end of suspenders.
     Florsheim v. Schilling, 137 U.S. 64 (1890): Putting elastic gussets in
corsets.
     Cluett v. Claflin, 140 U.S. 180 (1891) A shirt bosom or dickie sewn
onto the front of a  shirt.
     Adams v. Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid
fastened to the lantern  by a hinge on one side and a catch on the other.
     Patent Clothing Co. V. Glover, 141 U.S. 560 (1891): Bridging a strip
of cloth across the fly  of pantaloons to reinforce them against tearing.
     Pope Mfg. Co. v. Gormully Mfg. Co., 144 U.S.238 (1892): Placing rubber
hand grips on  bicycle handlebars.
     Knapp v. Morss, 150 U.S. 221 (1893): Applying the principle of the
umbrella to a skirt  form.
     Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co.
152 U.S. 425 (1894): An oval  rather than cylindrical toilet paper
roll, to facilitate tearing off strips.
     Dunham v. Dennison Mfg. Co. 154 U.S. 103 (1894): An envelope flap
which could be fastened  to the envelope in such a fashion that the
envelope could be opened without tearing.

     The patent involved in the present case belongs to this list of
incredible patents which the Patent Office has spawned.  The fact that
a patent as flimsy and as spurious as this one has to be brought all
the way to this Court to be declared invalid dramatically illustrates
how far our patent system frequently departs from the constitutional
standards which are supposed to govern."

     The invention at issue was a simple wooden structure to move an
order of groceries at a check-out counter as a rack of balls is moved
in pocket billiards.

     This list of patents declared invalid by the highest court did
not stop in 1894.