Fox Holed

Last week almost the entire cinema industry--producers, exhibitors, makers of sound equipment--felt sheepishly good. A fox which had been snarling at their heels for more than a year was curtly flicked back into his hole by Washington's nine wise old men, and the industry wondered why it ever got excited in the first place.

In 1929 bald, acquisitive William Fox was the grand panjandrum of filmland. Next year he was ousted from control of his companies by a coalition of creditors. With $21,000,000 in cold cash and a five-year pension of $500,000 annually, he was well able to finance a comeback if he could find something to come back with. He thought he had it in patents, bought abroad and transferred to his personal holding company, covering the "double print" method of recording both sound and picture on a single film and the "sprocket" or "flywheel" method of reproduction, which were universally displacing older systems. He sued three exhibitors, aiming behind them at the makers of their equipment (R.C.A. Photophone and Western Electric). A Circuit Court of Appeals upheld his claim. The defendants appealed to the Supreme Court. Last autumn the Supreme Court refused to review the lower court's findings.

Instantly there was turmoil. Mr. Fox's threat of a dictatorship was scoffed at but the scoffing was tremulous and there were conferences behind locked doors, attempts to reassure alarmed exhibitors. Rumors flew that Mr. Fox had been offered millions to sell out. He answered by suing virtually the whole industry, eleven companies in all. By this time the defendants' battery of counsel included onetime Attorney General William D. Mitchell.

Then the country's highest tribunal changed its mind, consented to review. The ruling handed down last week left Mr. Fox without a leg to stand on. In substance the Court declared that the Fox patents had not been infringed, that they were not valid. Reason: lack of "novelty and invention." The practice of printing a single positive film from separately developed negatives had long been known, was free to anyone to apply to sound-recording systems. The flywheel was the property of mankind. As long ago as 1879 Thomas Edison found he could not patent the flywheel on his phonograph.

Technically the ruling dealt only with the three cases brought up from the Circuit Court. But there was no doubt last week that Mr. Fox, retreating into his hole, would lose little time pulling the rest of his forlorn litigation in after him.

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