Argument for Plaintiff.

City, 168 Fed. Rep. 524; Northern Sec. Co. v. United States; McMullen v. Hoffman; Thomson v. Thomson, supra.

Every combination resulting directly or necessarily in restraint of interstate trade is prohibited. It is immaterial what kind of a combination it is; none is exempt; a combination to prosecute law suits is as much prohibited as any other. See cases cited supra.

To wrongfully charge infringement is an actionable wrong. This is true apart from any claim of violation of Sherman Anti-Trust Act. (Also to say that a person has no patent, or valid patent.) Culmer v. Canby, 101 Fed. Rep. 195; 25 Cyc. 263; Bowsky v. Cimiotti Unhairing Co., 76 N. Y. Supp. 465; Watson v. Trask, 6 Ohio, 531; Cousins v. Merrill, 16 U. C. C. P. 114; Meyrose v. Adams, 12 Mo. App. 329; 25 Cyc. 559; Flint v. Hutchinson Burner Co., 110 Missouri, 492; Germ Proof Filter Co. v. Pasteur Filter Co., 81 Hun. 49; Wren v. Weild, L. R. 4 Q. B. 731; Swan v. Tappan, 5 Cush. 104; McElwee v. Blackwell, 94 Nor. Car. 261; Snow v. Judson, 38 Barb. 210; Dicks v. Brooks, L. R. 15 Ch. Div. 22; Barley v. Walford, 9 Q. B. 197.

To take away plaintiff's customers by intimidation and threats renders defendants liable to damages under the Sherman Anti-Trust Act. Loewe v. Lawlor, 208 U. S. 274; People's Tobacco Co. v. Am. Tobacco Co., 170 Fed. Rep. 396.

[15] Plaintiffs have a cause of action at common law. The Creamery Package Company not having any title to the patents it sued upon, had no right or authority to prosecute its suit. It is the same as where a person brings a suit in the name of another without any authority for so doing. The person so doing must be charged with knowledge of the kind of a title it had. 38 Cyc. 517; Bond v. Chapin, 8 Metc. 31; Moulton v. Lowe, 32 Maine, 466; Foster v. Dow, 29 Maine, 442; Smith v. Hyndman, 10 Cush. (Mass.) 554; Streeper v. Ferris, 64 Texas, 12; Hackett v. McMillan, 112 Nor. Car. 513; Metcalf v. Alley, 24 Nor. Car. 38.

The contracts, conspiracy, and combination of the two defendant corporations are clearly illegal under both §§ 1 and 2 of the Anti-Trust Act and also at common law. Continental Wall Paper Co. v. Voight &c. Co., 212 U. S. 227;

Argument for Plaintiff.

Standard Oil Co. v. United States, 221 U. S. 1; United States v. Am. Tobacco Co., 221 U. S. 106; Minnesota v. Creamery Package Co., 110 Minnesota, 415, 437; S. C., 115 Minnesota, 207; Peck v. Heurich, 167 U. S. 624; Thompson v. Thompson (1802), 7 Ves. 468; Hilton v. Woods (1867), L. R. 4 Eq. 432; Scott v. Brown (1892), 2 Q. B. 724; Clark v. Hagar (1894), 22 Can. Sup. Ct. 510; Power v. Phelan (1884), 4 Dorion (Quebec) 57; Little v. Hawkins (1872), 19 Grant Ch. (U. C.) 267 (Ontario); Colville v. Small, 22 Ont. L. Rep. 426; 19 Ann. Cas. 515, citing Continental Wall Paper Co. Case, supra; Johnson v. Van Wyck, 4 App. D. C. 294; Gregerson v. Imlay, 4 Blatchf. 503; 10 Fed. Cas. No. 5795; Pinney v. First Nat. Bank, 68 Kansas, 223; 75 Pac. Rep. 119; 1 Ann. Cas. 331; Wehmhoff v. Rutherford, 98 Kentucky, 91; 32 S. W. Rep. 288; Gilroy v. Badger, 27 Misc. Rep. 640; 58 N. Y. Supp. 392; Gescheidt v. Quirk, 66 How. Pr. 272; Roberts v. Yancey, 94 Kentucky, 243; 21 S. W. Rep. 1047; 42 Am. St. Rep. 357; Miles v. Mutual Reserve Fund Life Ass'n, 108 Wisconsin, 421; 84 N. W. Rep. 159; Bryn[16]jolfson v. Dagner (N. Dak.), 109 N. W. Rep. 320; Burke v. Scharf (N. Dak.), 124 N. W. Rep. 79; Keiper v. Miller, 68 Fed. Rep. 627 (affirmed in 70 Fed. Rep. 128; 16 C. C. A. 679).

A plaintiff cannot maintain an action for damages for infringement of letters patent, but his action must be dismissed, when he acquired the title to his cause of action and claim through a contract against public policy because champertous. 6 Cyc. 881, 882, 889; Stewart v. Welch, 41 Oh. St. 483.

No title to property can be acquired where the act of such acquisition is criminal, or prohibited by statute, or where the transfer is made as a part of, or a step in, or pursuant to, an act prohibited by statute or against public policy. Pearce v. Rice, 142 U. S. 28; Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24; Miller v. Ammon, 145 U. S. 421; 20 Cyc. 937, 938, and cases cited; Holman et al v. Ringo, 36 Mississippi, 690.

The assignment or transfer of a negotiable security upon an illegal consideration is void, and confers no title to the

Argument for Defendants.

instrument on the assignee; and hence the maker of the note given upon a valid consideration, may defeat a recovery upon it by an assignee who won it at a game of cards. Drinkall v. Movius State Bank, 11 N. Dak. 10; 14 Am. & Eng. Ency. of Law (2d ed.), 647, 468; Thomas v. First Nat. Bank, 213 Illinois, 261; Burke v. Buck, 31 Nevada, 74; 99 Pac. Rep. 1078; 21 Ann. Cas. 625.

Without the active assistance of a willing court, the trust and unlawful object must have failed; with such assistance, it was perfected. A court will not lend its aid to the accomplishment of an unlawful object. Peck v. Heurich, 167 U. S. 624; Graham v. LaCrosse &c. Co., 102 U. S. 148; Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24; Hoffman v. Bullock, 34 Fed. Rep. 248; Forker v. Brown, 30 N. Y. Supp. 827; Gruber v. Baker, 20 Nevada, 472; 9 L. R. A. 308.

[17] The object and purpose of a trust must be legal. 28 Am. & Eng. Ency. of Law (2d ed.), 866, 867, and cases cited.

An association formed for an unlawful purpose cannot sue. 30 Cyc. 29.

A corporation cannot be formed for an unlawful purpose. 10 Cyc. 161, and notes.

It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly. Pope Mfg. Co. v. Gormully, 144 U. S. 238; Minnesota v. Creamery Package Mfg. Co., supra.

Mr. Emanuel Cohen and Mr. Amasa C. Paul, with whom Mr. John B. Atwater, Mr. Frank W. Shaw, Mr. George C. Fry, and Mr. W. A. Sperry were on the briefs, for defendants in error:

The 1897 contract between the two defendants was not in restraint of trade, nor an attempt to create a monopoly. In order to condemn an agreement as void under the act of July 2, 1890, its dominant purpose must be an interference with interstate or international commerce. Cincinnati, &c. Packet Company v. Bay, 200 U. S. 179; Hop

Argument for Defendants.

kins v. United States, 171 U. S. 578, 592; United States v.
Joint Traffic Association, 171 U. S. 505, 568; Anderson v.
United States, 171 U. S. 604, 615; Addyston Pipe Co. v.
United States, 175 U. S. 211, 229; Northern Securities Co.
v. United States, 193 U. S. 197, 331; Field v. Barber Asphalt
Co., 194 U. S. 618, 623; Standard Oil Co. v. United States,
221 U. S. 1, 66; Union Pacific Coal Co. v. United States,
173 Fed. Rep. 737.

The agreement of June, 1898, between the two defendants
was not in violation of the Sherman Act.

Even if the Creamery Company were assumed to be a
party to an unlawful combination in restraint of trade,
this would not deprive it of its right to sue for infringe-
[18] ment of its patents. Strait v. National Harrow Com-
pany, 51 Fed. Rep. 819; Connolly v. Union Sewer Pipe Com-
pany, 184 U. S. 540. See also Fritts v. Palmer, 132 U. S.
282; Dickerman v. Northern Trust Co., 176 U. S. 181, 190;
South Dakota v. North Carolina, 192 U. S. 286, 311; Harri-
man v. Northern Securities Co., 197 U. S. 244, 291; In re
Metropolitan Railway Receivership, 208 U. S. 90, 111; In-
ternational Harvester Co. v. Clements, 163 Michigan, 55.

None of the contracts contained any provisions for bring-
ing action against alleged infringers of patents for the pur-
pose of driving them out of business.

The evidence did not warrant the jury in finding any
agreement or conspiracy between the defendants to bring
the patent suits for the purpose of driving the plaintiffs out
of business.

The owner of a patent may notify infringers of his
claims and warn them that unless they desist, suits will be
brought to protect him in his legal rights. The only limita-
tion on the right to issue such warnings is the requirement
of good faith. Kelly v. Ypsilanti Dress Stay Co., 44 Fed.
Rep. 19; Computing Scales Co. v. National Computing
Scale Co., 79 Fed. Rep. 962; Farquhar Co. v. National Har-
row Co., 102 Fed. Rep. 714; Adriance, Platt & Co. v. Na-
tional Harrow Co., 121 Fed. Rep. 827; Warren Featherbone
Co. v. Landauer, 151 Fed. Rep. 130; Mitchell v. Interna
tional &c. Co., 169 Fed. Rep. 145; 30 Cyc. 1054.

95825°-VOL 4-17-52

Argument for Defendants.

There is nothing in this case to indicate that any of the warnings issued by the defendants were made in bad faith, and they were promptly followed by the institution of the infringement suits.

The 1897 agreements had to be solely with the settlement of litigation then existing or apprehended, with the result that a large amount of litigation was settled, and the parties relieved from vexation and expense and enabled to proceed with their business. Bement v. National Harrow Co., 186 U. S. 70, 93.

[19] None of the 1897 agreements was in restraint of trade.

The restraint of trade was not greater than the circumstances of the transaction required. Cincinnati &c. Packet Co. v. Bay, 200 U. S. 176; Shawnee Compress Co. v. Anderson, 209 U. S. 423; Whitwell v. Continental Tobacco Co., 125 Fed. Rep. 454, 461. Stipulations of the kind involved are frequent and valid. Littlefield v. Perry, 21 Wall. 205. They do not contravene public policy. Westinghouse Co. v. Chicago &c. Co., 85 Fed. Rep. 786; Reece v. Fenwick, 140 Fed. Rep. 287, 288.

Nor was the June, 1898, agreement in restraint of trade. The stipulations in the Owatonna Manufacturing Company agreements as to prosecuting infringers were usual covenants, nor warranting the inference of a purpose to drive competitors out of business by groundless suits. See collections of forms in Jones' Legal Forms, pp. 735, 739, 741; Foster v. Goldschmidt, 21 Fed. Rep. 70; Macon Knitting Co. v. Leicester Con. Mills Co., 113 Fed. Rep. 844; Wufley v. New Standard Con. Co., 164 Fed. Rep. 421; Critcher v. Linker, 169 Fed. Rep. 653; Jackson v. Allen, 120 Massachusetts, 64; The Forncrook Mfg. Co. v. Barnum Wire Co., 63 Michigan, 195; Croninger v. Paige, 48 Wisconsin, 229; Washburn & Moen Mfg. Co. v. Southern Fire Co., 37 Fed. Rep. 428.

The Owatonna agreements had to do wholly with manufacture, and were thus beyond the purview of the Sherman law. United States v. Knight Co., 156 U. S. 1; United States v. Northern Securities Co., 120 Fed. Rep. 721, 728;