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Subject Area: Law
Topic: The American Revolution and Constitution

§ 228.: Regulation of the sale of patented articles.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 228.

Regulation of the sale of patented articles.—

The constitution of the United States contains also a provision,3 authorizing Congress to promote inventions by providing for the issue of exclusive patent rights to inventors. The power has been exercised, and the number of patented articles offered for sale in the United States is legion. In the exercise of the police power over trades and professions, the States very frequently establish regulations, which directly or indirectly interfere with or restrict the sale of patented articles, and the constitutionality of such regulations has often been questioned on that account. But they have been generally sustained, if they were in other respects free from constitutional objection. Thus, it was held to be lawful to restrain the sale of adulterated provisions without a stamp, although the article sold was patented. Congress cannot grant under the patent law the right to practice deception in the sale of adulterated articles;1 and if the adulterated article is injurious, when used in the manner for which it was intended, the sale of it may be prohibited altogether.2 But, unless there is fraud or deception in the manufacture of the patented article, it is very probable that the State could not nullify the patent by a prohibition of the sale of the patented article, on the ground that its sale involves elements of danger to the public.

Within this limitation, however, the sale of the patented article is subject to reasonable regulation by the State. For example, for the purpose of preventing fraudulent practices in the sale of patent rights, it was provided by statute in Indiana that vendors of patent rights shall file with the county clerk an authenticated copy of the letters-patent, with an affidavit that they are genuine and have not been revoked or annulled, and that the vendors have authority to sell. The statute was sustained as not being in violation of the rights of the patentee, nor an invasion of the jurisdiction of Congress.1 But a State law was declared in Nebraska to be unconstitutional, which provided that no one shall sell any patent right within the State until he has first submitted his letters-patent to a county judge and obtained his approval.2 It is also held to be constitutional for a State to impose a license tax upon the sale of patented articles by an ordinary trader, as, for example, peddlers of sewing machines.3 But it seems to be considered unconstitutional for a State to impose a license tax upon the sale by the patentee of his patented article.4

[3]United States Const., art. I., § 8, cl. 8.

[1]Palmer v. State, 39 Ohio St. 236 (48 Am. Rep. 429). As to the general right of the State to regulate the sale of patented articles, see Jordan v. Overseers, 4 Ohio, 295; In re Brosnahan, 4 McCrary C. C. 1 (18 Fed. Rep. 62); Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344. See ante, pp. 412, 413, where it is explained how farpatented articles may be controlled by the anti-trust laws of the State.

[2]Patterson v. Kentucky, 97 U. S. 501.

[1]Brechbill v. Randall, 102 Ind. 528 (52 Am. Rep. 695).

[2]Welch v. Phelps, 14 Neb. 134.

[3]Howe Machine Co. v. Gage, ICO U. S. 676.

[4]State v. Butler, 3 Lea (Tenn.), 222.