Mr. DAVIS. The New York Patent Law Association. The CHAIRMAN. Eighteen lawyers were called upon for an opinion? Mr. DAVIS. I think I stated I have a list of about 18. The CHAIRMAN. You did not send out the bill to every member of the association and ask for an opinion? Mr. DAVIS. No; we have not had a referendum. The CHAIRMAN. Go right ahead, Mr. Davis. Mr. DAVIS. There was a meeting of 15 members of the large committee on patent law and practice and they appointed a subcommittee, and the subcommittee reports to the main committee and then that committee reports to he board of governors. This was a joint meeting of the board and the committee. It was rather retroactive action. Bill H. R. 10155, to abolish the statute permitting renewal of patent applications, was passed for a further report of the subcommittee. Now, that ends the statement of what we were authorized to say on behalf of the association. Anything I say further is of my own views. I should like to say, as far as the bill H. R. 10155, abolishing the renewals is concerned, I approve of it and would like very much to see it pass. The matter of H. R. 10152, on applications by assignees in the matter of form, is going to be discussed with the chairman after the meeting. The bill H. R. 10156, providing that application should be filed within two years of the real invention, that is the substance of it, I personally approve. The CHAIRMAN. Therefore, the one bill that you wanted to take up is? Mr. DAVIS. H. R. 10153, the 20-year bill; and there is one other. I consider that one of the most important bills before the committee. Mr. DIES. The facts show that many of these patents have been pending for 10, 12, and 15 years, and they are purposely delayed in order that the inventor might keep his patent alive as long as possible. I consider this the hardest one to pass; if we can pass this bill we are going to have a finer patent system than there has ever been in the world. I would not think lawyers would be in favor of it, because it is going to cut down litigations and profits to the man who requires it. The CHAIRMAN. Before you begin, I want to make one statement: Article I, section 8, paragraph 8, of our Constitution, secures to authors and inventors for a limited time an exclusive right to their writings and their discoveries. Before they could get this exclusive right, before the inventor gets the right of patent, in order to promote the progress of science and useful acts, and thereby something to assign; that is, the quid pro quo, it is the sense of the members of this committee, and, as I gather from people who have written me and who represent great corporate interests, that it is essential to expedite a patent to issue. There is no reason why a patent should be in the office 10 or 15 years, until the public becomes patent-minded; there is no reason at all after the application has been put in, why the applicant should procrastinate in the Patent Office. We could leave the matter of time limitation of prosecution of patents to the discretion of the court to give the inventors 2 years, and if necessary, 3 years, so that the court, to give a man an opportunity to profit from his invention, gives him an option of the present 17 years from the issue of his patent, or give him 20 years from the time the application is made, as the committee suggests. Mr. DIES. The fact is disclosed that much of the delay is attributed directly to the action of many attorneys in deliberately delaying every process as long as it can be legally delayed. If we do not do something to place the responsibility upon the attorneys for speedy action there is nothing that can be done by the patent committee. Mr. DAVIS. I agree with Mr. Dies as I think you will not find any substantial disagreement with the proposition that there is a real abuse of the system in the Patent Office and the desirability of routing that out every one is agreed upon that-and no one can help recognizing the soundness of the underlying principle of this bill, that is if the applicant for a patent is going to delay he must do it on his own time. The CHAIRMAN. Right. Mr. DIES. That principle is certainly sound. The CHAIRMAN. What might be anticipated as defects in the bill? Mr. DAVIS. In the first place, the delay in the Patent Office may arise from two causes, one of them, the delay on the part of the Patent Office through overwork or insufficient force and so forth; the other deliberate, purposeful delay of the applicant. Now the delay in the Patent Office, I include in that the delays in court, in these interference proceedings which are very, very considerable and must be taken into account-but let us think first of the deliberate purposeful delay by the applicant for a patent. I am sure the committee and subcommittee have understood where the gain lies-a man or a corporation, or a group of men looking ahead at the start or in the youth of an important industry, anxiously anticipated the general line of growth to that industry file an application or a series of applications for patents with the deliberate purpose of keeping them in the Patent Office and adding to them so far as they are not prohibited by the laws, the fruits of the natural growth of this industry: Now, that is one of the great fruits in the incarcerated case that we are all trying to root out. Now, applying this bill to that difficulty, I feel it is certainly not a complete cure; perhaps nothing is complete. I mean it is not a substitute for the other bill where there is a case pending more than three years, because my view is that no general legislation can combat successfully a private purpose. You must admit that I think by the intelligent action of the man in this case, the Commissioner of Patents, who is clothed with the power to act when he, in the exercise of his judgment, would recognize improper purposes in any particular case. The reason I think this bill will not entirely cure that trouble is, if such a scheme as I have pictured, and which we have all undergone, is under way, then it does not defeat the scheme to limit the term of the patent, that is, the man who is playing that scheme, if he gets a patent for 10 or even 5 years, is just about as successful as if he gets a patent for 17 years. If you take any modern industry to-day, and if you can keep the patent in the Patent Office 2 or 3 years and it then comes out and is held up for 5 years, you have the industry at the point of a pistol, and the fact that he is not limited to 17 years is not a cure. Mr. GOODWIN. Yes; but he is doing what the Constitution stated, he is given an opportunity to devote himself to the arts and sciences. The sooner you know the patent is issued the better. The CHAIRMAN. Absolutely, and I do not think we have a right to let anyone go ahead and hide and conceal themselves for years and years, playing hide and seek in the Patent Office. Mr. DIES. And it is being done on a tremendous scale. I am Mr. DAVIS. There is no one more opposed to it than I am. so much opposed to it, the practice at which this bill is aimed, that I am as anxious to point out any deficiencies in the bill as any one else. The CHAIRMAN. There is an inconsistent attitude your organization has assumed. You supported the bill of Mr. Dies, an excellent bill too, it is allowed, or he can appeal after three years. Is that right? Mr. DAVIS. Yes, sir. The CHAIRMAN. That forces you to come out in the open. If you can compel a man to acquire his patent three years after his application, or after it is allowed, or after appeal from the decision of the patent examiner to the commissioner then you are forcing a man out into the open. Is that right? Mr. DAVIS. Yes, sir. The CHAIRMAN. And then the next move is to compel him to go and pay the owner so as to give the benefits to the arts and sciences; you have no right to be hiding a patent 10 or 15 years. Mr. DIES. We have 724 examiners in the Patent Office-that is a tremendous increase that Congress has made; in order to help we have furnished them every facility in the world, and yet the evidence before our subcommittee shows it is getting to be universal practice to delay these matters indefinitely. Some delay 30 years and are now practicing every scheme in the world for further delay. After furnishing you all those facilities, do you say a man can not get a patent within three years? The CHAIRMAN. And we do more in that bill, Congressman Dies, I may make it three years instead of two years, as on the second page. Mr. DAVIS. I have not made myself plain, Mr. Chairman. The CHAIRMAN. You said the first step is this bill. Push it out in the open. Mr. DAVIS. Yes, sir; that is the first step to put in the Commissioner of Patents hands, the power to take that step. The CHAIRMAN. He has that power. Mr. DAVIS. Something that you said at the outset led me to fear the possibility of this bill H. R. 10153, you felt would cover the whole situation and make the 3-year bill. I do not agree that the 3-year bill is the first and necessary step that we all want to cure this evil. I am representing Mr. Jones, who has one of these patent claims-I go into the Patent Office after three years and Mr. Robertson says, now you must get this case out of the office, either by licensing or a case. I can make some appeal, take it to all the courts there are, I am shut off and laid up against time; that is a very good bill. Now when I come to this 3-year bill, after three years consideration GENERAL REVISION AND AMENDMENT OF PATENT LAW 17 in the Patent Office, I am using my own time, I am assuming 17 years as the duration of patents. The CHAIRMAN. The bill you have offered gives the court the right to act. Mr. DAVIS. I do not object to the 17 years term for a patent; I think that ought to be so. Supposing I am practicing this nefarious plan and I say to my client, it is all right, we are using 17 years; let us use it up, keep it in the office; we will have a 10-year patent, that is good enough; I can hold up the established industry meantime. The CHAIRMAN. It is not fair to the arts and sciences. Mr. DAVIS. Absolutely unfair, so my point is not that I am opposed to this bill; I am in favor of doing anything rational in this bill. The CHAIRMAN. What are you opposed to? Mr. DAVIS. Nothing. The CHAIRMAN. Is there anything in there that you would like to omit or develop? We want you to help us; whatever bills we have here are for the purpose of asking the bars or various industries about. We do not want to put any chains or shackles on any one. If you can think it over and allow me to call upon Mr. Neave, who is one of the most eminent patent lawyers in the country, for something constructive, I will be glad to talk it over with you. Mr. DAVIS. That is what we would like to furnish. The disclaiming of his bill in the bar association, in my opinion, was because no one has had time to give it the thorough-going consideration it deserves. The CHAIRMAN. I want to call your attention to the fact I received letters from the largest organizations in America that approved this bill in toto. Mr. DAVIS. I am not surprised at that, Mr. Chairman, because you are aiming at a very real abuse and the tendency is for any one to say, "I am in favor of the bill." The CHAIRMAN. If you were to come and listen to the hearings we have in our committee of men who come here representing millions of dollars invested, who are crying because patents stay in the Patent Office so long, you would be in favor of its passage. Mr. DAVIS. Why do they stay there? The CHAIRMAN. According to the testimony that has been brought out here, an individual creates a patent and he sees a tremendous use for it 10 or 15 or 20 years from now, it may be now; he keeps on filing what they call claims and interferences, and it is claims, and God knows what else. Mr. DAVIS. Can't the Patent Office force the patents to allowance and issue? The CHAIRMAN. No. Mr. DAVIS. They have to do it some time. The CHAIRMAN. Well, why is the honesty of the commissioner's office questioned. Commissioner Robertson told us patents have been in there 10 or 15 or 30 years. Mr. GOODWIN. It is just like the court, stop these things. Mr. DIES. The commissioner does not have that right himself. The CHAIRMAN. He should do it. What is the Patent Office for if the commissioner can not decide a case. Mr. ROBERTSON. The Patent Office can do it in many cases, but when the applicants pay their attorneys to delay the applications there are many ways in which the cases can be and are being delayed. Mr. DIES. Let me call your attention to this, even where there is none of that done the company had no objection of any kind. In only a common every-day patent, I know in some cases it takes three years. A lawyer can come into court and file certain pleadings to delay a case, not ordinarily, then he says The CHAIRMAN (interposing). Can you talk on that, Mr. Robertson? I would like to get your opinion on that. Mr. DIES. Yes; one particular case stayed there 30 years. Mr. ROBERTSON. On page 287, of your previous hearings are, or pages 288 and 289, of the brief filed in General Motors Co., reference is found to one patent pending 26 years and 4 months, issued in 1923, and to another one pending 36 years. Mr. GOODWIN. Why are those patents pending so long? Whose fault is it? Mr. ROBERTSON. There is some delay in every case, chargeable to the Patent Office especially since the Patent Office one and one-half years ago was almost 11 months in arrears. Now the average delay is about four and one-half months to-day before you can receive an official action; some more than seven months, others under one month, but the average is about four and one-half months. The law gives the applicant six months to reply to an official action and up to three years ago the law gave a year, but it was changed to six months. If the applicant takes the entire time; there is almost a year gone by, then if the applicant files a response by inserting new claims or making it impossible for the Patent Office to allow the case, it stays in the Patent Office longer. If the applicant again makes some deliberate move for delay or makes it impossible for the Patent Office to "allow " the case, he has another six months and so it goes on in that way. Mr. DIES. Now, say that you allowed a patent, and he has how long then to pay his fee? Mr. ROBERTSON. After he has paid his fee, as Mr. Dies suggested, it is all over; when he gets it "allowed " the law gives him six months to pay that printing fee or he will forfeit it; the law gives him another six months to pay a penalty fee to renew or reinstate it. Mr. SWANK. Instead of six months, give him 30 days. The CHAIRMAN. The lawyers come along and hold them there. Mr. SWANK. We are not legislating for lawyers. Mr. ROBERTSON. I would not object to six months; it does not do any harm and would be a hardship to cut down the poor inventor and give him less than three months. It is the six months plus the six months. Mr. SWANK. We can stop that. The CHAIRMAN. On that point, Congressman Swank, let me explain to you how they have that, how you can not prevent the Patent Office from allowing that, a lawyer comes along and holds the application pending in the Patent Office. Mr. SWANK (interposing). We can stop it. |