Brief for the United States (1914)

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89 ii('«;at ;ilt lioiiu'li, as ;i iii.-iltci' of fact, no j)i<'1iir(* appears iijx)!! the liliii uiilil tlic inia<;(' is fixed and (le\'el( »j )ed. Alfred I). I>i'iek, of I lie rniNcrsal i^'iliii Maniifaetui'iiit? (V)., j)r()(liieed t y])es of the ne^^ativc film and the positive lihn used i)v tliat e()iii])tiny. (Govt. Exs. 278, 279, \M, 3418.) l^oth lihiis were obtained from the Eastman Kodak Co. in the condition in whieli they were introduced in evidence. The ne^ati\'e is i)erforated and then run throusjh the camera. The positive is also perforated, after which the picture is printed upon it l)y contact with the negative. Perforating machines are obtained from Bell & Howell. (VI, 3420, fol. 2.) That to call an article a patented article does not make it such is axiomatic. It is equally true that to issue so-called licenses does not bring such ostensible licenses within the patent laws nor confer upon the parties the rights and privileges which spring out of lawful licenses under valid patents. The license agreements are drawn on the theory that the positive is patented and the rights asserted are claimed to be rights in relation to the use of a patented article, which is asserted to be the positive film. The agreements relate to the disposition of that unpatented article in commerce. As the positive is not covered by reissue 12192, the attempt to control the disposition of the product of the negative— that is to say, the attempt to control and regulate the commerce in the positive film — is exactly