what they really intended to cover was this, entirely different in

scope.

Mr. BROWN. They can reissue with a new claim.

The CHAIRMAN. What was the time?

Mr. BROWN. There is no statutory time limit on reissues. Where a patent is reissued to broaden the claims the Supreme Court has indicated that a delay of more than two years would be a bar excepting for extenuating circumstances.

The CHAIRMAN. How about intervening rights there!

Mr. BROWN. Well, that is a different question. The courts have recognized intervening rights where one broadens his patent by reissue under the present system. Such a reissued patent is not effective against a man who has taken advantage of the apparent scope of the patent before it is reissued.

Mr. ROBERTSON. Would you be in favor of making intervening rights a matter of statute rather than judicial action?

The CHAIRMAN. I mean supposing that was incorporated in the bill as a statutory law.

Mr. BROWN. I would go further than that, I would favor a bill which would provide that no broadened, valid reissue could be granted where there had been an intervening right. I think the intervening rights should be public and not an individual right. The CHAIRMAN. What do you think, Mr. Neave?

Mr. NEAVE. I think the individual's right should be recognized, as that is in line with the decisions of the courts.

The CHAIRMAN. You would not have any statute law at all?

Mr. NEAVE. Yes; we have done a good deal of work as to making statute law, but it has raised a great many questions in the courts. Intervening rights should begin and end when a personal right is in favor of everyone. I did not want to make any personal suggestion when I am not positive.

The CHAIRMAN. We have introduced a bill on that subject which will be before the House very soon. Are there any other questions of Mr. Brown?

Mr. DIES. No.

The CHAIRMAN. Thank you very much, Mr. Brown. I am now going to call upon Mr. Day.

The CHAIRMAN. I am going to call upon Mr. Leonard Day.

STATEMENT BY LEONARD DAY, VICE PRESIDENT NAKKEN PATENTS CORPORATION, NEW YORK, N. Y.

The CHAIRMAN. Please give your name to the stenographer and state who you represent.

Mr. DAY. My name is Leonard Day. I represent primarily, and am authorized to represent only myself; but if you would bear with me to express appreciation for the emphasis that you, as chairman of this committee, have made upon the contract phase of patent status, and also the quid pro quos that should be in the mind of a third, the necessity of doing everything possible to protect the public as against the organized wealth of all large companies that are capable of protecting themselves.

I would like to make first one suggestion in connection with the bill of your own.

Perhaps. I am not qualified, if I am measured by the yardstick, to represent any one, to say something.

It is 30 years ago this June that I commenced the practice of this kind of profession, but, more or less, by election, I have usually represented the underdog, the lone inventor, perhaps because a living to me was more or less assured, perhaps because I elect to fight for them.

The CHAIRMAN. The committee would like to tell you before we had these bills perfected we listened to every bit of advice that represented capital, labor, and the public. In that way we tried to frame. a bill that would be just to all sides.

Mr. DAY. I have no doubt of that, perhaps to take away the sting of the attorney's remarks for representing the underdog, so I could say at the present time I at least represent some of the larger corporations.

First, and foremost, I think we should realize there are at least two classes of inventors in this country; first, the part of a wellorganized corporation, directed really from above, as to what he shall do. Patent attorneys broaden that scope, keeping back or pushing forth applications for patent.

We have another class of inventors, the real inventor, who believes he has done something, and the Government is going to stand back of him and give him protection for his invention.

First, and foremost, treating this from the contract standpoint I have found out 9 out of 10 lone inventors found they have had perpetrated on them what they consider a fault by the United States Government and I saw what they considered this fault reported on the chairman's bill, in the words of your bill H. R. 10153, “a grant to the patentee, his heirs, or assigns."

The Government never grants that to an inventor; it does not intend to do it, but he thinks that is what he has ahead.

In the words of the Supreme Court:

The franchise which the patent grants consists altogether in the right to exclude everyone from making, using, or vending the thing patented, without the permission of the patentee. This is all he obtains by the patent.

That is by Bloomer v. McQuewan (14 How. (U. S.) 539, 549, 14 L. ed 532).

Now, everyone who is a part and parcel of one of a large corporation knows a patent statute does not mean that, but the inventor thinks if he makes an invention he gets his patent, thinks he is given his grant (without the permission to reproduce that thing free) to sell his invention and get money out of it, whereas, as a matter of fact, the only thing that is given him, with the power of the court, is to stop some one else doing that particular thing. He may find himself infringing upon three or four or five involving patents which have been granted before.

I suggest, your honor, that the patent statute be amended. I am not criticizing anything except all of us as we have gone down the years and perpetrated this misrepresentation. It does not affect the big corporations, the organized wealth; it is a fraud upon the poor, lone inventor who stakes his all in trying to give something to this country. I am not just imagining this. I have represented

that class. Many and many a man I have discouraged from filing application because I have explained to him freely that he would not get that which he thought he would get. But not all attorneys explain fully to him. He actually thinks he is going to get a license to make the thing that he invents. Some of our judges have gone astray on the language in 4884. I knew one judge in New York did so when he first became a judge.

The CHAIRMAN. Has he not the exclusive right to prevent others from utilizing it?

Mr. DAY. No. He has no right to make it if some one else has a broader claim on the same thing. Suppose it was possible for the Patent Office to be a celestial body, to grant patents to animals, and a man invents a sawhorse with two claims for a quadruped, and a couple of years later a man invents the idea of a sawhorse with head and eyes in it. He claims a 4-legged animal with a projecting neck, mentioning head with eyes, and a few years later another man comes along and says, I would like a milk-giving animal and he puts over a cow, and he gets a claim for it, and starts to make cows to feed children milk. The man with the 4-legged patent comes along and says we do not want you to make that and will not let you, and the court gives him an injunction and if he transgresses the injunction he is put in jail for doing with the patent what he has a right to do.

I am talking in plain language but it is the truth and it will not hurt anybody for a patent granted to show what it gives, and as long as we are sitting here trying to reach to the fundamental equities and do good to the country, let us do the job. There is no need to perpetuate false ideas to the entire Nation. It takes a scratch of the pen to make definite as to just what a patent is, and then this class of people who have been flimflammed for years can see what they are going to get. It may be a trifle and some people can say this is only a detail. It is not a detail; it reaches to the very plenary foundation of a square deal. It does not effect the large corporations. We all know what a patent is.

Now, as to the other things, the outstanding important bill, the one that meets my greatest approval is that of your honor, 9448, increasing the facilities of the Patent Office, and in addition, I would say we approve heartily 6677, the Vestal bill, and 10152, the Underwood bill.

Mr. ROBERTSON. Is that the fraud bill, 6677?

Mr. DAY. That is to prevent fraud.

Mr. ROBERTSON. That is the bill you said you would report out favorably to prevent those not members of the bar from calling themselves attorneys.

The CHAIRMAN. From calling themselves counselors.

Mr. DAY. Those three bills, there is nothing but fullhearted approval. As to the others, while the object is right, a little amending and more careful consideration are desirable.

The CHAIRMAN. I will ask Mr. Neave a question. Is the American Bar Association in favor of patent lawyers to advertise themselves all over the country?

Mr. NEAVE. I am sure not.

Mr. BROWN. I am sure not, also.

The CHAIRMAN. Suppose our committee incorporated in this bill a section to prevent any patent lawyers from advertising themselves no matter what names they call themselves.

Mr. BROWN. It is against the code of ethics of the American Bar Association to advertise. That would cover patent laywers,

too.

Mr. BROWN. Your organization would not oppose that then. The bar association would not oppose that if we put it through our committee.

Mr. BROWN. I do not have the bill before me and do not know its provisions.

The CHAIRMAN. This provision is one we have been six years fighting for to prevent lawyers who have not been admitted to the bar from calling themselves attorneys and counselors.

Mr. NEAVE. Everybody will agree that the New York association has taken steps to prevent patent solicitors from advertising even though they are not lawyers.

Mr. ROBERTSON. The American Bar Association and the American Patent Law Association has indorsed 6677.

Mr. FENNING. As it stands without the advertising proposition. Mr. DAY. In connection with some of these bills, rather than to actually go on record than to say I favor or oppose, I will limit my remarks to the general lines of experience that I have had from June, 1902, to date, for nearly all of the time the United States Patent Office or the officials in it have been unequipped to do that. The Patent Office has not asked for them but giving the Patent Office more classification examiners may be helpful, and will be helpful now, and the effect of those new examiners will be felt in a year and a half or two years.

The CHAIRMAN. It will come about in four or five years from now instead of getting a patent, where you are getting litigation, you will get a patent based upon a real investigation and real quality of work.

Mr. DAY. There is no question about that, but there is a constant flux in making the men in the Patent Office right to-day. It is not right next week or next month. The industry of this country is increasing by leaps and bounds and the Patent Office should have enough examiners all the time. Generosity should be exercised.

The CHAIRMAN. Do you not think the Patent Office department ought to be a separate department by itself and be independent of the Department of Commerce or any department?

Mr. DAY. Without question.

The CHAIRMAN. The same as the Tariff Commission or the Radio Commission.

Mr. DAY. Without question, and I believe the recent move of scattering it over two or three buildings is a wrong move unless it provides better facilities. I believe the old personal, one family arrangement in the old Patent Office would work better.

The CHAIRMAN. Would you be in favor of uniting the Patent Office with the Smithsonian Institution to avail themselves of everything in that institution, because we have that in one of the books of Mr. Spencer as a recommendation.

Mr. DAY. I believe the facilities of the Institution in some cases could be used by the Patent Office, and particularly that they should

have an adequate library of arts and sciences, but I do not believe that an alliance with any other institution such as the Smithsonian is right. I have just made the point that the Patent Office has usually been undermanned. They have struggled through. It has

The CHAIRMAN. It has not been waiting for one year to 12 months before it was actually examined by the examiner. Those are real facts. Now, it averages a less length of time but it has been nothing in the past for it to set over a year.

The CHAIRMAN. It has not been waiting for one year to 12 months?

Mr. DAY. I mean to say there have been many periods in the history of the Patent Office when one application filed by an inventor was not actually read through by an examiner until more than a year after it was in his division.

The CHAIRMAN. You say one year to 12 months. One year is 12 months.

Mr. DAY. One year to 13 or 14 months.

Mr. GOODWIN. The length of time the application lies dormant. Mr. DAY. I mean to say the Patent Examiner was so actually driven and rushed that he had others that he was examining that he was working on, and that one came in and stayed in the file unlooked at by him for a year.

The CHAIRMAN. For your information, you have to wait nine months to date before your application is reached.

Mr. Day. It is cut down to four and a half months.

Mr. ROBERTSON. Seven months at the most.

Mr. DAY. That is true, and that is undermanning. Now, Mr. Chairman, for three years I was an examiner in this Patent Office, and I know how examiners are driven, and I know how conscientious they are. They do their best. We did not have a library where we could find anywhere near as much as the General Electric or any one in New York in the public library. The Patent Office has always worked with inadequate facilities to do its side of the story. Now, because of that, and because I believe it is going to continue not so bad because we are watching them now, it is a question whether this H. R. 10153 is wholly equitable to the inventor. One wants to get the patent out and make money out of it. It is not going to penalize the well-organized patent associations that work in the large companies. We can always find a way to do that which we want to do. There is no law made that we can not abide by as long as everybody else means to abide by it. The great organizations can get some advantage for their own particular work. It will always be so. That is merely the application of brains.

But I believe these limits are more apt to work a hardship on the poor, lone inventor than others. This must be borne in mind, that there is no invention which comes out in a patent that is any better than the patent attorney that draws the patent and prosecutes it. The inventor, therefore, we will say, gets a weight of 50 per cent from the merits of his invention and 50 per cent from the patent attorney. Suppose he has not a patent attorney, all of these little hardships work on him. The Commissioner of Patents will tell you about something that is going on in the Patent Office now. I think I can bring the point out without giving any names. Certain inventors have been struggling for a number of years to get