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published prior to 1846, nor had it been used for any such purposes. It was known that ether inhaled produced in certain instances unconsciousness, and sometimes death, that it was a dangerous drug, capriciously used, and uncertain in results.

"The history of ether anesthesia was the gradual discovery of the following facts:

"That it possessed the power of producing stupor in every case.

"That this stupor could be exactly graduated as to time.

"That it could be increased or diminished and arrested short of danger. "That there were certain infallible indications of danger.

"That, while thus controllable and safe, it could be made so profound that even amputations should not be felt."

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That is a quotation from an article published by Dr. Henry J. Bigelow, M. D., for many years the leading surgeon of New England and who was personally identified with Morton's discovery " from its earliest use, and the first to publish it to the world in a medical journal, a premature publication" that produced controversy and allowed various "jump-up-behinders" plausible grounds for their claim to "prior discovery" to that of Morton.

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It will be observed that this "discovery of Morton's was not as "simple as usually described to be the case. It was a gradual accumulation of important "facts" and by experiment.

In other words, Morton "found out by experiment something that had existed before, but was not known to exist before." It is a mere dispute of words to try to find something that would change his " discovery" as being one not within the purview of patent law, but in order to prevent any renewal of such a claim, I have the honor to suggest to the committee the amendment to section 4886, I have heretofore referred to.

"All the law requires is a principle (property of matter) and its application to a practical use."

Respectfully submitted.

Hon. Wм. I. SIROVICH,

Chairman Committee on Patents,

EMORY A. BRYANT.

House of Representatives, Washington, D. C.

The CHAIRMAN. I am going to call upon Jo. Baily Brown.

STATEMENT BY JO. BAILY BROWN, PITTSBURGH, PA.

The CHAIRMAN. Will you kindly give your name to the stenographer and state whom you represent?

Mr. BROWN. Jo. Baily Brown. I am not quite sure whom I do represent. I think I appeared as the second speaker in your first hearing to outline the patent law revision program of the American Bar Association. I am present at this hearing to-day because the chairman asked me to appear.

The CHAIRMAN. I wanted you, Mr. Brown, because I read that masterly statement of yours on Intervening Rights in Reissue Patent Cases.

Mr. BROWN. Mr. Chairman, I have very little to say. The American Bar Association approved of this series of bills: 10152– The CHAIRMAN. Introduced by whom?

Mr. BROWN. Introduced by Mr. Underwood. I will take them up in order; and that bill H. R. 10153 introduced by Mr. Sirovich was disapproved by the American Bar Association, patent section, at its last meeting, as I recall, by a close vote.

The CHAIRMAN. What was the vote?

Mr. BROWN. There were about 60 present of the members of the patent section of the association.

The CHAIRMAN. Was it disapproved by the section?

Mr. BROWN. Yes; the patent bar generally does not approve this bill. I approve it heartily myself, and have worked for it a great

many years, and our committee on patent law revision last year brought it in as their recommendation, but the full section voted against it as a majority.

Speaking personally, and not for the American Bar Association, it has been my observation that the substance of what is aimed at in this bill has been recommended by every committee or commissioner that has made an intensive study of the patent-law system. I know that it is true of the President's Commission on Efficiency and Economy of 1912, and one or two other investigation bodies have felt that this was what might be called the key remedy to prevent undue delay in bringing out patents. Personally, I think, as the chairman so ably said at the beginning of these hearings, the remedy for intentional delay in the Patent Office is to put the burden on the claimant to put his case in condition for allowance or lose part of his term. In my opinion the applicant who feels his term of monopoly is slipping away, will put the necessary pressure on the attorney to get his case out promptly. And the attorneys will put the necessary pressure on Congress, in that event, to provide the necessary facilities in the Patent Office for avoiding these delays. I think if you will go back to the source and make it to the advantage of inventors to get their patents through quickly it will be done, whereas, if you leave it so there is advantage to the delay, it it is very hard to force the Patent Office to get the patents out promptly.

The next bill, H. R. 10154, introduced by Mr. Rich, which contains two provisions, one relating to the signature în patent applications, and the other validating patents issued to improperly joint applicants, is approved by the patent section of the American Bar Association. I think those provisions were approved unanimously. I do not know of any dissent.

Bill H. R. 10155, introduced by Mr. Goodwin, to abolish the statute permitting renewal of patent applications, was recommended by the patent law revision committee of the American Bar Association, patent section, but was disapproved by that body.

The CHAIRMAN. It was?

Mr. BROWN. Yes, sir.

The CHAIRMAN. What was the vote there?

Mr. BROWN. I can not give you that. I can get it and put it in the record.

The CHAIRMAN. I would like to have it.

Mr. BROWN. The patent law revision committee was composed of some 15 attorneys from various parts of the country. They bring in a report, which is printed, and circulated not less than 30 days before the annual meeting, then these things are brought up and debated in full meeting and voted upon. If these things are passed by the patent section they then go before the American Bar Association-several thousand members of them-and proposals for changes of law have to be passed by the whole association also before they even can come before any committee of Congress to advocate any legislation.

The CHAIRMAN. We have representatives of the bar associations from Cleveland and Boston who voiced their approval of the bill. Mr. BROWN. I think you will find the patent section of the American Bar Association is generally a little more advanced and liberal

in its views than the American Patent Association, and what you might call a cross section of the patent lawyers outside of the bar association. I am a little prejudiced, because I have given a good deal of my time in patent law revision work to the American Bar Association. I may be wrong in thinking its work is more carefully considered and more progressive than that of the other associations. There are quite a number of changes that have been considered. Many of us who have been working on revision of the patent law are in favor of some things not approved by the bar association. I want to make clear to you the disapproval of the association of some of these bills, even though I approve them myself.

This next bill, H. R. 10156, introduced by Mr. Kelly, to limit inventors to priority of two years before filing applications for patents, was approved by the American Bar Association, patent section, by a very close vote. In frankness, I want to say there was strong opposition to it; I happen to know that, for instance, in the Pittburgh Patent Law Association, this proposition has not been approved.

The CHAIRMAN. You understand that these, bills were all recommended by the American Law Association.

Mr. BROWN. Not all.

The CHAIRMAN. Which ones?

Mr. BROWN. H. R. 10153 was not approved, and H. R. 10155 did not originate with the American Bar Association.

Personally, I think the Sirovich bill (H. R. 10153) and the Kelly bill (H. R. 10156) taken together would do more to improve the patent system in the United States than all of the other proposed bills put together. My belief is that if you force a man to go into the Patent Office promptly, by which I mean if you provide, as proposed, that any delay of more than two years after completion of his invention may result in an inventor losing his right to a patent, and if you provide that in any event the patent will expire at a fixed date after the filing of the application, you will have removed the chief incentives which now cause inventors, and particularly their assignees, to delay in filing applications and to delay in bringing out patents on applications. Certainly if you couple these propositions with that of the Dies bill (H. R. 10157) which empowers the commissioner to terminate the prosecution of an application after three years, you would work a very substantial, and in my opinion a very desirable, change in the patent laws. I believe this change would be decidedly to the benefit of the public generally and, except in a few very rare instances, no undue hardship to inventors or patent

owners.

The CHAIRMAN. What is the reason for the objection to these bills; why should men object to expediting the matter of a man getting his patent instead of having it in the office 25 or 30 years?

Mr. BROWN. Referring to the bill by Mr. Kelly to force a patent application to be filed within two years after completion of the invention by making it so a man might otherwise lose his rights, the objection has been that some members of the bar feel that sometimes a man does not know what his invention is until after he has worked and tinkered with it for a long time. If he has to file within two years he might have filed his application too soon; others have said that now the inventions are being made in the research depart

ments and that many inventions can not be adequately tested out under three years or more.

The CHAIRMAN. Why can't a man, without having to spend a fortune of money, know that some one is working on a patent to save his time? I think if I knew Mr. Jo. Baily Brown wanted to put in an application, but not knowing anything about that, but along comes Mr. Jo. Baily and files it, then I am prevented with going ahead with my invention.

Mr. BROWN. Under any scheme, one entering a new field has to take a chance that there has been an application in the office that may become a patent and dominate the field. A man producing a new article must do so at his peril so far as pending applications go, but you can limit that peril. That is an object of these bills. You can force a man to go into the Patent Office promptly. We felt in giving him two safe years of delay in filing that we were being very liberal with him. A great many of the bar do not agree with me on this however. They think the time should not be limited. As to the chairman's bill (H. R. 10153) the objections are somewhat the same. A great many people say a man can not get his patent through the Patent Office in three years and ought not to be penalized for something he can not prevent. The experience in my own office has been that we can get cases through the Patent Office in two or three years if we put the proper amount of active constructive intensive work in them. I know some of the attorneys will not agree with me that, with the exception of certain special cases, that is ample time for formal prosecution. As Mr. Neave said this morning, in all of these things someone is going to be hurt by any statute. But it seems to me, and to our committee that worked on these changes, that as Mr. Neave further said, you must balance the good to the public against the evil to the individual in specific cases. This 2-year limitation on filing, and the 3-year prosecution rule will hurt the individual sometimes, but our belief is they would be overbalanced by the good to the public.

I do not believe I have mentioned H. R. 10157, introduced by Mr. Dies, for the purpose of empowering the commissioner after three years to conclude the prosecution of a case. That was approved by the American Bar Association, and it is one of their bills. We feel it would very materially aid in removing those long-pending applications from the Patent Office, and to a large extent would prevent the extending of applications 5 or 10 years, or more, at the same time leaving with the commissioner certain authority to prevent hardship in special cases.

Now I believe that is the last one of the American Bar Association bills.

H. R. bill 9448, to provide a permanent force to classify patents in the Patent Office, has not been considered by our association. Mr. DIES (interposing). By whom was that introduced? Mr. BROWN. That was the Sirovich bill.

The CHAIRMAN. I want to call your attention to the fact that every group that was here cooperating and helping Commissioner Robertson in his Patent Office said there was a great delay in the classification of these cases and that to take care of this work would necessitate the appointing of about 35 men.

Mr. BROWN. That bill is aimed at one of the crowning evils, not due to the fault of anyone, but the way it has grown up. As patents have grown in number the classification has become more and more cumbersome. It has not been brought up to date for a long time. I think your committee could count on the unanimous support of the public and patent bar generally for any bill to bring patent classification up to date, and keep it up to date in the true sense.

I would like to say in the matter of the bill relating to disclaimers which Mr. Neave and Mr. Davis have opposed, but which they approve in principle if the bill be properly modified, that the amended bill they are suggesting is very near an original one that was reported out of our patent law revision committee. Our committee was in favor of limiting disclaimers to whole claims, or to eliminate claims. These disclaimers that Mr. Neave speaks of as "finesse disclaimers" were not approved. Personally I think if the committee rejects the bar association bill it would do well to take the one proposed by Mr. Davis and Mr. Neave. In other words, I think you would be making a step forward with either bill.

One other thing, Mr. Neave and Mr. Davis, as I recollect, have criticized the bill having for its object the empowering of an assignee to file additional applications on the same invention on the ground that the oath could not be properly taken by the assignee. Our intention in principle was that the oath would be varied in form so that it could be taken by the assignee. In other words, the assignee would swear to the best of his knowledge and belief. One who has derived title could take the oath that as far as he knows, the invention was made by the applicant-assignor. That would be some protection. However, if the committee should revise that bill so that the application filed by an assignee could relate only to the subject claimed by the original applicant, it would still be a step forward and a substantial relief. That point was given careful consideration in our committee and our original proposition was that of Mr. Davis and Mr. Neave to limit the matter to the subject claimed in the original bill. But the words were broadened by the section.

Very frequently the assignee after having been issued a patent to a perfectly good invention finds that inadvertently or through mistake the inventor did not claim all of the invention described in the application.

The inventor has assigned it to another, and perhaps disappeared, and the situation has been that the man who had bought and paid for the invention could not protect it. Our thought in drafting that bill was to word it so that the Patent Office and the courts could consider the specification, drawings, and claims, to determine what the invention was that the man had intended to patent and had assigned, and to provide that that invention could be protected by later applications, by the assignee making an oath and application to cover the invention the assignor had made and assigned to him. That seemed to us a workable proposition. I realize that does leave the door open to many close questions. You have the same proposition to-day; you can not reissue a patent except to cover an invention that was disclosed in the original application.

Mr. DIES. And a good many say you can not tell what it was intended to cover; they look and see the invention this man made;

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