319 DOUGLAS, J., dissenting in part. nevertheless be outlawed entirely where they have been employed to build the monopoly or to create the restraint of trade. United States v. Crescent Amusement Co., supra, pp. 187-188. For the aim of the decree is not only to prevent a repetition of the unlawful practice but to undo what was done, to neutralize power unlawfully acquired, to prevent the defendants from acquiring any of the fruits of the condemned project. Standard Oil Co. v. United States, 221 U. S. 1, 78. If that is to be done here, I think we must do more than forbid further expansion of the existing monopolistic situation. The defendants have unlawfully acquired control and domination over this industry to the exclusion of competitors. This control was obtained in part through the unlawful acquisition and use of patents. As stated by the District Court, "These patents, through the agreements in which they are enmeshed and the manner in which they have been used, have, in fact, been forged into instruments of domination of an entire industry. The net effect is that a business, originally founded upon patents which have long since expired, is today less accessible to free enterprise than when it was first launched." 63 F. Supp. 513, 532. If defendants are allowed royalties on those patents, they do, indeed, reap dividends from their unlawful activities. As stated in a dissent in the Hartford-Empire case, "Every dollar hereafter, as well as heretofore, secured from licenses on the patents illegally aggregated in the combination's hands is money to which the participants are not entitled by virtue of the patent laws or others. It is the immediate product of the conspiracy." 323 U. S. p. 443. But beyond that is the effect on the industry. Here defendants have been in a commanding and impregnable position. They have dominated the field and suppressed competition. If competition is to be restored strong measures must be adopted to provide the maximum op DOUGLAS, J., dissenting in part. 332 U.S. portunity for new ventures to compete with the established giants of the industry. It is here that the major vice of permitting royalties on the licensed patents becomes apparent. Each dollar of royalty adds a dollar to the costs of the new competitor and gives the established licensor another dollar with which to fight that competition. As stated by National Lead in its brief before this Court: "National and du Pont not only compete with their licensees but dominate the titanium industry. A requirement of uniform, reasonable royalties in no way frees competition because, no matter what the royalty may be, in this industry a licensee required to pay more than its licensor will be at a competitive disadvantage." "Compulsory licensing alone would not be enough to restore the industry to a healthy, competitive condition. If National and du Pont are permitted to receive royalties on their existing patents, they will still be in position to dominate the industry." If National Lead, the world's largest producer of titanium pigments, expects to find itself at a competitive disadvantage as a result of reasonable royalty licenses, what can be the probable fate of newcomers or existing independents of small stature? * The decree approved by the Court stops short of granting effective relief. Divestiture is refused. Compulsory licensing is ordered, but only to those who are willing reciprocally to license use by the defendants of their patents. It must be remembered that one of the consequences of the unhealthy monopolistic condition in the industry has been a dearth of the ordinary patent litigation. The burden of testing potentially invalid patents will thus be placed on the first enterprise unwilling to pay the royalties. 319 DOUGLAS, J., dissenting in part. In this additional respect the decree will enable the large established companies to strengthen their dominant position. To get the benefits of the decree an independent must give up one of his few competitive advantages— the exclusive right to use such patents as he may possess. These provisions, plus the additional requirement of royalties on the misused patents, even though those royalties be "reasonable," greatly increase the odds against restoration of competition in this industry. Except as to the matters mentioned, I join in the opinion of the Court. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1947. RODGERS v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 58. Argued October 16, 1947.-Decided November 10, 1947. Penalties incurred under the Agricultural Adjustment Act of 1938, as amended, for marketing cotton in excess of farm marketing quotas fixed pursuant thereto, do not bear interest for the period between the date the penalties became due and the date judgment is entered therefor. Pp. 373-376. 158 F.2d 835, reversed. The District Court rendered judgment for penalties incurred under the Agricultural Adjustment Act of 1938, as amended, plus interest from the dates the penalties became due to the date of judgment. The Circuit Court of Appeals affirmed. 158 F. 2d 835. This Court granted certiorari. 331 U. S. 799. Reversed, p. 376. Petitioner submitted on brief pro se. Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Sonnett, J. Stephen Doyle, Robert W. Ginnane and W. Carroll Hunter. |