Knowledge that Transforms

Two factors have combined to make the patent field particularly fruitful of conflict between private claim and public interest. The first is the double aspect of the patent itself, as a sanction of exclusive privilege, purportedly1 granted in furtherance of a broad social objective. The second, and the more specific, is the extensive overlap of the domains controlled by the frankly monopolistic patent system and by the anti-trust laws. A special and acute problem under the latter head arises with respect to the so-called "tying clauses", by means of which the patentee seeks to impose upon his licensee, as a condition of license, an obligation to purchase from the patentee or from his nominee other goods or materials, for use in connection with the invention.2 Section 3 of the Clayton Act 3 lays an interdiction upon such contracts where they result in lessening of competition or creation of monopoly. Two separable questions are suggested by the tying-contracts practice, and are raised by the Morton Salt case.4 First, by whom and under what circumstances may the illegality or repugnance to public policy of the tying clause be raised? Secondly, how broad a conception of public policy is to govern the disposition of such a plea? Prior to the principal case, these questions had been set in a very different theoretical framework from that which must be constructed to accommodate the present holding.