of these other fellows' success, calmly copies the claims of these patents into his application, asks for and is accorded an interference, and Bang! there is trouble right away. Sometimes the public that is interested is not extensive enough to make much ado. At other times the circle of discontent and of wronged feeling is wider. Sooner or later this situation will be dealt with and reflected in the decisions of the tribunals.

Appurtenant Monopolies.-With the exclusive feature of the monopoly to the patentee of his actual or specific patented invention, for the limited term of his monopoly, came gradually monopolies appurtenant thereto. At first, due to the general range of patented inventions, the state of trade and the factors determining the prices of goods and the control of manufacture of the same, these appurtenant monopolies aroused but relatively little attention and caused but relatively little irritation. The doctrine of the earlier decisions, in the Bement case and the Heaten Peninsular case, for instance, drew attention to these appurtenant monopolies. As the conditions of trade and manufacture and the factors governing prices changed in extent and character, and as the range of patented inventions multiplied and extended, these appurtenant monopolies were seized upon by the owners of patented inventions, at first plausibly and not unnaturally, until they sometimes attained a growth out of all proportion to the originals, reaching out and clutching otherwise most innocent articles of trade and consumption, and forming the basis for most exacting price restrictions and control. They even went so far as to constitute foci about which were built quite astonishing trade monopolies which sought protection from attack under the Sherman Act by magnifying and relying upon rights appurtenant to patents for inventions. At first the lower tribunals followed and extended the doctrines of the earlier decisions, which also were followed by the Supreme Court, but this inherent dislike of the public was making itself steadily felt. Again the public became irritated, and, therefore, resentful, and drastic, radical, remedial legislation was sought. The feeling began to be reflected in the decisions of the tribunals. It expressed itself in the dissent in the Dick case. It gained nearly full sway in the Sanatogen case, the Bathtub case, the Victrola case and in the Motion Pictures case. Elaborately built-up trade combinations yielded to the feeling and tumbled like cob houses, until for the

moment it becomes difficult to assert and maintain these appurtenant monopolies even in their proper, beneficial sphere.

Accountings and recoveries on accountings accompanying adjudicated breaches of the patent monopolies have reflected this feeling. At first the simple doctrines of tort were applied substantially without friction. At first, too, the exclusion side of the patent monopoly was greatly preponderant and the successful litigant, by accomplishing complete exclusion of the invader, set relatively small store on his rights of money recovery. Then, as these rights received more attention, the technical side of the patent monopoly entered, the rules of recovery became complicated, the practice became involved and expensive, and both Bench and Bar seemed puzzled and indefinite. The public at large was seldom directly affected by these recoveries. The, so to speak, patent-public not infrequently felt that it was not receiving justice, and this feeling began to be reflected in the decisions of the tribunals until a body of decisions is arising which seems to discard many of the older requirements, and seems to attempt to cut through all complexities and award to the patentee some substantial recovery where his monopoly has been substantially invaded. This may be sound, as far as it goes, but when, in this effort to show a liberality of award, that liberality is partitioned throughout the manufacture, sale and use of the three-headed patented monopoly, the sting of recovery begins to be felt through the mass of the trading and consuming public, and the inherent dislike will assert itself and be reflected in the decisions of the tribunals for good or evil to the entire system.

Restriction on Suits by Patentee. The patentee may sue the infringing maker, user or seller. Having elected to sue the maker and been defeated, can he then sue a user? Precise precedent did not appear. The sting of public opinion, however, found response in the tribunals and the Supreme Court in Kessler vs. Eldred said that he could not, basing its opinion not on precedent, but on the express proposition of the harassing of the public by such suits against users after the proposition as to the validity and scope of the patent had been finally determined in a suit against the maker by a court of competent jurisdiction.

In matters of patents for design inventions, this public feeling is heard, but the result is not yet clearly coherent.

Discontinuances.-It had been the custom for the plaintiff in an equity suit, as matter of right, at any time, at least before the argument of the case, to discontinue his action unless the defendant under the pleadings was entitled to affirmative relief, even though the defendant might be under the vexation and expense of a possible second suit upon the same cause of action. This sometimes occasioned great uncertainty in a large number of sellers and users of the alleged patented device, to say nothing of the immediate defendant or of the alleged infringing manufacturer. The practice continued-not, however, without occasional mutterings of distinct public discontent, until, in a striking instance in the Southern District of New York, the settled practice was perforce followed, because of that settled practice and of precedent. In this case, however, the class of the public affected was very considerable. Its interests evidently prompted the adoption of a rule by the federal judges in the Southern District of New York which leaves it to the discretion of the court "to permit the plaintiff to discontinue, even though the defendant cannot have affirmative relief under the pleadings, and though his only prejudice is the vexation and expense of a possible second suit upon the same cause of action."

At this time, when there is so much else in the meetings of the Association to engage our attention, and when there are so many others so much more worth listening to than the speaker, it is not our purpose to deal exhaustively by argument, by quotations from decisions, or by prophecy, with this subject, which must have engaged the thoughts of all of us at one time or another and which links the practice of our technical speciality to the great body of law and practice, and makes it pulsate with the throbs of public life. One must, under these circumstances, be brief and only suggestive.

Two things, as practitioners, we perhaps might bear constantly in mind: One is to be responsive to this feeling, which seems inherent in the general public, and control it and steer it along well-recognized courses into safe and reliable harbors. The other is to stand strong and fearless, not yield to ill-advised public clamor, not turn a cold shoulder to it, not be indifferent to it, but heed and meet it to the end that the system, which has wrought so much good for this nation, shall not perish but shall helpfully endure.

PROCEEDINGS

OF THE

JUDICIAL SECTION

Meeting of the Judicial Section of the American Bar Association held at the Grand Union Hotel, on Tuesday, September 4, 1917, at two o'clock in the afternoon.

William C. Hook, judge of the U. S. Circuit Court of Appeals for the Eighth Judicial Circuit, presided as Chairman.

The Chairman:

Circumstances not necessary to be mentioned have led me to dispense with an address as Chairman, and I will therefore proceed to introduce the distinguished speakers in the briefest way.

I take great pleasure in presenting to you His Excellency Boris A. Bakhmetieff, the Ambassador of Russia, who will speak to us upon the subject of Public Law and Democracy in Russia. (His Excellency Boris A. Bakhmetieff then delivered his address, see page 615.)

The Chairman:

There need be no fear of democracy in Russia if the people of that country are not deceived by the camouflage of autocracy within and without. As having a pertinent bearing upon the remarks of the Ambassador concerning the ability of the Russian people for self-government, it occurs to me that the observations of Montesquieu are particularly in point: "When the common people adopt good maxims they adhere to them more steadily than those whom we call gentlemen. It is rarely that corruption commences with the former: nay, they frequently derive from their imperfect light a stronger attachment to the established laws and customs.”

The gentleman who will next address us has gained an enviable renown as a jurist in connection with that branch of jurisprudence being slowly developed in this country, the fundamental conception of which is that an ounce of initial prevention is better

than a pound of correction or punishment. After leaving the Bench he became a distinguished member of the Judiciary Committee of the House of Representatives. It is my pleasure to introduce the Hon. Warren Gard, of Ohio.

(Hon. Warren Gard then delivered his address, see page 632.)

Judge Robert R. Prentis, of Virginia, Chairman of the Committee on Nominations, made a report as follows:

The committee unanimously reports recommending the election of the following officers of the Section:

For Chairman: William C. Hook, judge, U. S. Circuit Court of Appeals, of Leavenworth, Kansas.

For Secretary: John T. Tucker, of Baltimore, Maryland.

For members of the Executive Committee: Orrin N. Carter, of the Supreme Court of Illinois; Thomas C. McClellan, of the Supreme Court of Alabama; Andrew A. Bruce, of the Supreme Court of North Dakota; Francis J. Swayze, of the Supreme Court of New Jersey.

On motion duly seconded the report was adopted, and the respective nominees were declared elected for the ensuing year.

The Chairman:

The next business in order is new business. Is there any new business?

Judge Clarence N. Goodwin, of Illinois:

I desire to submit to the Section a resolution which I have discussed with Mr. Whitelock, the Secretary of the American Bar Association, and also with a number of distinguished members of the American Bar Association, and I am submitting it to the Section at Mr. Whitelock's suggestion as being the proper way for it to receive such consideration as it deserves. It is as follows:

"Resolved, That in the opinion of the Judicial Section of the American Bar Association the passage of an act of Congress providing for the appointment of a national judicial commission is a step necessary to the attainment of judicial efficiency, and we recommend that a committee should be appointed by the American Bar Association for the purpose of drafting and submitting to Congress a bill for such an act."

The Chairman:

Is this resolution seconded?