Excerpt from A&P Tea Case

The Special Role of Patents under the Constitution

William O. Douglas

Trek Through the Hills

Judicial Treatment of Nonconformists

Douglas on Antitrust

The C&O Canal


U.S. Supreme Court

A. & P. TEA CO. v. SUPERMARKET CORP., 340 U.S. 147 (1950) 340 U.S. 147

No. 32.
Argued October 18-19, 1950.
Decided December 4, 1950.


MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK agrees, concurring.


The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents - gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to the simplest of devices:

  • Hotchkiss v. Greenwood, 11 How. 248: Doorknob made of clay rather than metal or wood, where different shaped door knobs had previously been made of clay.

  • Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498: Rubber caps put on wood pencils to serve as erasers.

  • Collar Co. v. Van Dusen, 23 Wall. 530: Making collars of parchment paper where linen paper and linen had previously been used. [340 U.S. 147, 157]

  • Brown v. Piper, 91 U.S. 37: A method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer.

  • Reckendorfer v. Faber, 92 U.S. 347: Inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser.

  • Dalton v. Jennings, 93 U.S. 271: Fine thread placed across open squares in a regular hairnet to keep hair in place more effectively.

  • Double-Pointed Tack Co. v. Two Rivers Mfg. Co., 109 U.S. 117: Putting a metal washer on a wire staple.

  • Miller v. Foree, 116 U.S. 22: A stamp for impressing initials in the side of a plug of tobacco.

  • Preston v. Manard, 116 U.S. 661: A hose reel of large diameter so that water may flow through hose while it is wound on the reel.

  • Hendy v. Miners' Iron Works, 127 U.S. 370: Putting rollers on a machine to make it moveable.

  • St. Germain v. Brunswick, 135 U.S. 227: Revolving cue rack.

  • Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56: Using flat cord instead of round cord for the loop at the end of suspenders.

  • Florsheim v. Schilling, 137 U.S. 64: Putting elastic gussets in corsets.

  • Cluett v. Claflin, 140 U.S. 180: A shirt bosom or dickey sewn onto the front of a shirt.

  • Adams v. Bellaire Stamping Co., 141 U.S. 539: A lantern lid fastened to the lantern by a hinge on one side and a catch on the other.

  • Patent Clothing Co. v. Glover, 141 U.S. 560: Bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing.

  • Pope Mfg. Co. v. Gormully Mfg. Co., 144 U.S. 238: Placing rubber hand grips on bicycle handlebars. [340 U.S. 147, 158]

  • Knapp v. Morss, 150 U.S. 221: Applying the principle of the umbrella to a skirt form.

  • Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425: An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.

  • Dunham v. Dennison Mfg. Co., 154 U.S. 103: An envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing.

The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern.

Source: FindLaw Inc.