United States v. Vehicular Parking, Ltd. (61 F. Supp. 656, 1945)

LEAHY, District Judge.

Final judgment was entered in this case, after final argument on the form of the decree. Nearly a year later the Vehicular group of defendants now moves to modify the judgment. The substantial features of suggested modification are: (1) Not to have the decree run against the individual defendants; (2) there should be no provision that defendants be required to give royalty-free licenses; (3) defendants should not be enjoined from threatening to institute or instituting infringement suits; and (4) the elimination of the visitorial paragraphs under which the Department of Justice is granted certain discovery privileges for the purpose of securing future compliance with the decree. There were other modifications suggested. Their dis<-posal will appear later.

1. While true in Hartford-Empire Co., v. United States, 323 U.S. 386, 65 S.Ct. 373, a statement appears that under the facts of that case, there was no necessity to have the injunctive features of the decree operate against individual defendants, in the case at bar the reasons for including individual defendants have already been discussed and; decided. See 56 F.Supp. 297. Nothing additional has been brought forward persuasive enough to take the individual defendants from without the force of the decree entered.

2. Before the judgment was filed, the question whether defendants should be required to give to any and all applicants royalty-free licenses was fully argued and considered, but determination of the inclusion of stich a provision in the decree was reserved. The government now urges that such a provision must be affirmatively inserted in the decree. The defendants object. The objection will be sustained because I am unable to agree with the government’s reading of Hartford-Empire Co. v. United States, supra, that the court has power to mandate a royalty-free license where the patent has been used as an instrument in violation of the anti-trust laws. If a court could permit such a provision it-would obviously be tantamount to a cancellation of the patent. There are definitive statutory provisions for cancellation of a. patent. I am thus compelled to read Hartford-Empire Co. v. United States for the-proposition that a patent is not to be can-celled by making it royalty-free because it-was once utilized as a device to violate the-anti-trust laws. Hence, Paragraph 9 of the-decree should be deleted, as, under the-views expressed herein, there is no judicial: or legislative authorization for such a cancellation. There should be, however, in order to remedy the evil of the illegal monopoly which defendants have set up, some-form of compulsory licensing. Hartford-Empire Co. v. United States, supra. Some-such provision as this is suggested: “defendants and each of their officers and directors are hereby enjoined and restrained, from refusing to grant licenses to any person desiring such license Under any present patents owned or controlled by defendants.