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The Week of April 4, 2021: On This Day In SCOTUS History

This week we will cover the establishment of the U.S. Patent System and the mistaken identity of the first patent, the Flag Act of 1818, the prohibition against patent misuse, right to privacy, and entrapment.

1790, April 10

U.S. Patent System is Established

President George Washington signed the Patent Act of 1790 into law. The first patent board consisted of Thomas Jefferson, Henry Knox, and Edmund Randolph. The first patent was awarded to Samuel Hopkins, of Philadelphia, Pennsylvania, for an innovative method of extracting potash from wood ashes. Potash (the word is derived from potassium, a byproduct of the wood ash) was used as a fertilizer and, more importantly at that time, to make soap.

Credit for the first patent had long been mistakenly attributed to a Samuel Hopkins of Pittsford, Vermont. This was due to the mistake of a clerk who attributed the first patent to the wrong Samuel Hopkins when they were attempting to reconstruct the patent office’s records after a devastating fire in 1836. It would be over 100 years before the real Samuel Hopkins, of Philadelphia, was correctly identified. This article and correction that appeared in a 2002 issue of American Heritage’s Invention & Technology magazine chronicles the effort to unearth the real Samuel Hopkins. https://www.inventionandtech.com/content/mistaken-identity-0

So accepted was the mistaken Vermont Hopkins that signs and plaques were erected commemorating him. Below is a picture of one of these erroneous signs.

Credit: Daderot at the English-language Wikipedia, CC BY-SA 3.0 <http://creativecommons.org/licenses/by-sa/3.0/>, via Wikimedia Commons.

1818, April 4

The Flag Act of 1818

The Flag Act of 1818 was signed by President James Monroe. The previous Flag Act of 1794 resulted in a flag with 15 stars and 15 stripes, representing the 15 states in the union at that time. The new act fixed the number of stripes to the original 13 colonies and provided for the addition of new states to be reflected in the number of stars only. This new Act coincided with the addition of five new states to the union, as reflected in the five new stars in the field: Tennessee, Ohio, Louisiana, Indiana, and Mississippi.

The photograph in the header of this article shows the original flag as it would have appeared above a U.S. naval ship. The below illustration shows the 20 stars in a star formation. Outside of the U.S. Navy, there were no restrictions as to how the stars should appear so this variation was not uncommon though ultimately not sanctioned.

1913, April 8

The 17th Amendment is Ratified

Article I, Section 3 of the Constitution reads “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

The 17th Amendment to the Constitution provided for the popular election of Senators, as opposed to appointment.

1917, April 9

Prohibition Against Patent Misuse

Motion Picture Patents Co. v. Universal Film Co., 243 U.S. 502 (1917)

This case addresses patent misuse, which is the attempt by a patent holder to restrain trade beyond what is actually protected by the patent.

Facts:

The patent in question “covers a part of the mechanism used in motion picture exhibiting machines for feeding a film through the machine with a regular, uniform, and accurate movement, and so as not to expose the film to excessive strain or wear.” The patent holder, in addition to protecting his rights as regards the mechanism, also attempted to dictate a) the price at which the machine could be resold, and b) the specific patent number (name brand) of film that could be used in the machine.

The subject of this patent ruling.

Analysis:

The Court laid out three rules applicable to patent law:

  1. “The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification. He can claim nothing beyond them.”
  2. [T]he patentee receives nothing from the law which he did not have before, and that the only effect of his patent is to restrain others from manufacturing, using, or selling that which he has invented. The patent law simply protects him in the monopoly of that which he has invented and has described in the claims of his patent.”
  3. “[T]he primary purpose of our patent laws is not the creation of private fortunes for the owners of patents, but is to promote the progress of science and the useful arts” In other words, inventors are more likely to invent and to put their inventions out into the world if they have a reasonable assurance that their ideas will be protected.

The Court noticed, among other things, that the film that patent owner required to be used in the machine itself already had an expired patent. To allow this patent owner’s requirement would be to, effectively, create a monopoly in an unpatented item and thus restrict further invention.

“[T]he owner of a patent is not authorized by either the letter or the purpose of the law to fix, by notice, the price at which a patented article must be sold after the first sale of it, declaring that the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it.”

Without these restrictions, you would end up “with a machine sold and paid for, yet claimed still to be subject … to any restrictions or conditions as to use or royalty which the company which authorized its sale may see fit, after the sale, from time to time to impose. The perfect instrument of favoritism and oppression…. If these restrictions were sustained, plainly the plaintiff might, for its own profit or that of its favorites, by the obviously simple expedient of varying its royalty charge, ruin anyone unfortunate enough to be dependent upon its confessedly important improvements for the doing of business.”

Held:

  1. The patent law makes it unlawful for any person engaged in interstate commerce to lease or sell with conditions where the effect may be to substantially lessen competition or tend to create a monopoly in any line of commerce.
  2. A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation … is plainly void because …, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes.

Postscript:

Oliver Wendell Holmes penned the dissent. The Court’s thinking has evolved over the years regarding the right to restrict the use to materials or supplies not covered under the patent. That discussion goes beyond the scope of this article.

1963, April 8

To Kill a Mockingbird Wins

The movie version of To Kill a Mockingbird won Academy Awards for Best Actor for Gregory Peck, Best Art Direction (Black and White), and Best Adapted Screenplay.

The big winner at the 1963 Oscars was Lawrence of Arabia which one Best Picture and Best Director among others.

1969, April 7

Right to Privacy

Stanley v. Georgia, 394 U.S. 557 (1969)

The U.S. Supreme Court unanimously struck down laws prohibiting private possession of obscene material.

Facts:

Police engaged in a warranted search of the home of a Robert Eli Stanley on suspicion of bookmaking. Instead of betting paraphernalia, the officers found three eight-millimeter reels of pornographic material in a desk drawer. Stanley was subsequently charged with possession of obscene materials, a crime under Georgia law.

Issue: Whether the Georgia obscenity statute that outlaws private possession of obscene matter violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. Put another way, whether a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter is constitutional.

Rule:

The First Amendment protects freedom of speech. Freedom of speech has been extended, through case law, to include the right to receive information and ideas, regardless of their social worth.

Analysis:

Georgia claims that obscene material is not protected under the Constitution and, as such, States are free to set their own laws. “If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?”

There are some amazing quotes in this decision so I will include here some of the most noteworthy:

“These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

“Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion.”

“Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.”

As regards the public distribution of obscene materials, it was not necessary to prove that it could lead to deviant behavior since “such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public. No such dangers are present in this case.”

Held:

“We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime…. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.”

Postscript:

It’s worth noting that this decision did not address what constitutes “obscene” materials. The petitioner did not challenge the obscene nature of the material in question.

The observant reader will also note that the warrant was for the search and seizure of “gambling materials.” The confiscated films were not covered under the warrant. Fortunately, three of the justices, in a concurring opinion, pointed this out. “But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers.”

“[T]he agents were acting within the authority of the warrant when they proceeded to the appellant’s upstairs bedroom and pulled open the drawers of his desk. But when they found in one of those drawers not gambling material but moving picture films, the warrant gave them no authority to seize the films.”

1992, April 6

Entrapment

Jacobson v. United States, 503 U.S. 540 (1992)

https://www.law.cornell.edu/supct/html/90-1124.ZO.html

Issue:

When a crime is committed in response to solicitation by government agents, must the government prove beyond a reasonable doubt that a defendant was predisposed to commit a crime prior to contact by the government in order to overcome an entrapment defense?

Facts:

The Child Protection Act of 1984 made illegal the receipt through the mail of sexually explicit depictions of children. The petitioner, a 56-year-old veteran turned farmer, had received explicit photographs of young boys, via a bookstore mailing list, prior to the passing of this law and at a time when purchasing such materials was not illegal. After the passing of the law two Government agencies sent mail to him through five fictitious organizations and a bogus pen pal, to explore his willingness to break the law. Twenty-six (26) months later he ordered a magazine from one of these sources and was arrested. A subsequent search of his house revealed no materials other than those sent by the Government. Petitioner claimed to be shocked by the material he received, saying that he wasn’t expecting it to be actual minors.

Analysis:

“In their zeal to enforce the law … Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”

In a typical case, or a more elaborate sting operation, the target is simply provided with an opportunity to commit a crime. “Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitioner — who must be presumed to know the law — had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction. But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations.”

“Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it.”

The opinion goes on to criticize some of the tactics used by the government, such as posing as organizations fighting against censorship and appealing to petitioners sense of freedom.

Held:

“Because the Government overstepped the line between setting a trap for the “unwary innocent” and the “unwary criminal,” and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested, we reverse the Court of Appeals’ judgment affirming his conviction.”

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If you think the stock market is crazy, wait until you read what the Supreme Court is up to. Things are getting SPICY!

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Ronald D. Rodriguez

Ronald D. Rodriguez

I am a deputy attorney general working in State government. Visit my LinkedIn profile at linkedin.com/in/ronalddrodriguez/ for more.

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