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U.S. Supreme Court

Virtue v. Creamery Package Mfg. Co., 227 U.S. 8 (1913)

Virtue v. Creamery Package Manufacturing Company

No. 80

Argued December 9, 10, 1912

Decided January 20, 1913

227 U.S. 8


To sustain an action under § 7 of the Sherman Act, a necessary element is cooperation by some of the defendants in a scheme involving monopoly or restraint of interstate trade and causing the damage complained of. chanroblesvirtualawlibrary

Page 227 U. S. 9

The owner of a patent has exclusive rights of making, using, and selling which he may keep or transfer in whole or in part.

Patents and patent rights cannot be made a cover for violation of law, but they are not so used when only the rights conferred by law are exercised.

Patent rights can be protected by a party to an illegal combination.

While the combined effect of the separate acts alleged to have made the combination illegal must be regarded as a whole, the strength of each act must be considered separately.

Assertion of patent rights may be so conducted as to constitute malicious prosecution, but failure of plaintiff to maintain the action does not necessarily convict of malice.

Mere coincidence in time in the bringing by separate parties of suits for infringements on patents against the same defendant held, in this case, not to indicate a combination on the part of those parties to injure the defendant within the meaning of § 7 of the Sherman Anti-Trust Act.

A contract by which a manufacturer of a patented article appoints another who does not manufacture or sell like articles his exclusive agent for the output of the factory held in this case not to violate the Sherman Act.

Where an action under § 7 of the Sherman Act was tried in the Circuit Court and argued in the circuit court of appeals on the basis of cooperation between the defendants, this Court will not consider a contention raised for the first time that one of the defendants was itself a combination offensive to the statute.

In this case, it does not appear that the contracts between the defendants were made for the purpose of injuring the plaintiff, and, both courts below having so held, this Court also so holds.

179 F.1d 5 affirmed.

The facts, which involve the construction of § 7 of the Sherman Anti-Trust Act and what constitutes an illegal combination thereunder, are stated in the opinion. chanroblesvirtualawlibrary

Page 227 U. S. 24

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