which, we understand, has been passed on favorably by your subcommittee but has not yet come up by the committee as a whole. During the last session of Congress an identical bill (H. R. 3534) was unanimously passed by the lower House a few days before the session ended and did not reach the upper House for action. In view of the fact that the previous House of Representatives found H. R. 3534 which is identical to the present H. R. 2128-of sufficient merit to pass it unanimously, it is only right that the present House should have the opportunity to vote on this important legislation. Please use your influence to get this bill out of committee and onto the floor. If it is delayed as it was in last session, the Senate will not have time to give it the action which we feel this bill is entitled to. Hoping you will give this bill your vigorous support and follow it through, we are Sincerely yours, EASTERBROOK & OLESON LUMBER CO., HAWES & GOSNELL, Washington, D. C., June 8, 1955. Hon. EMANUEL CELLER, House Judiciary Committee, Washington, D. C. DEAR SIR: May we respectfully call your attention to the following points which relate to H. R. 2128: This bill does no more than provide just acknowledgment of the term of the special status granted to patent holders by the Congress under the Constitution. Basically this legislation recognized a moral obligation which is soundly in the public interest. Similar action in more than 20 other countries should do much to resolve any doubts as to the fundamental soundness of the principle involved. We submit that no valid reasons have been advanced for a reversal of the position previously held by your committee and accepted by the House in 1954. It is certainly true that no objection has been advanced which would justify even a slight sacrifice of the inviolate standing which must accompany the commitments of the Government as established by the Congress. Therefore, on behalf of the United States Plywood Corp. we respectfully urge your favorable consideration of H. R. 2128. Sincerely yours, ROBERT N. HAWES. NEW YORK, N. Y., March 18, 1955. Re H. R. 2128 patent-extension bill. CHAIRMAN, SUBCOMMITTEE ON PATENTS, House Judiciary Committee, House Office Building, Washington, D. C. DEAR SIR: As a member of the patent committee of the National Association of Manufacturers (representing United States Plywood Corp.), I would like to present respectfully to the honorable committee my personal point of view in connection with the statement by Edwin H. Arnold, chairman of the committee on patents of the National Association of Manufacturers. Mr. Arnold does represent the majority of association members, but there are, nevertheless, certain members who do not share the views expressed by Mr. Arnold in his statement of March 9 before the subcommittee. Among the minority is United States Plywood Corp. In the first place, Mr. Arnold makes no distinction between H. R. 2128 (which is restrictive and is similar to H. R. 3534 of last year) and H. R. 3134 (which is broad and indefinite, i. e., what "circumstances beyond the control of the owner," etc.). The situation has been confused by the introduction of H. R. 3134 which does not have the safeguards of H. R. 2128 and to which, therefore, I am opposed. Mr. Arnold's point (1) that all owners of property suffer because of wartime conditions is not well taken. Obviously, the Government cannot do anything toward rectifying injustices in private contracts. Obviously, the parties to the contract should have themselves provided for relief in case of acts of God, wars, Government restriction, and the like. In the case of patent rights, the relief proposed in H. R. 2128 is definite and certain, and is merely effecting what the Government originally agreed to do-i. e., grant an exclusive right for 17 years without restriction. Intervening rights are provided for in H. R. 2128 so that no injustices will result, as mentioned in Mr. Arnold's point (2). Renewals are provided for in the case of copyrights and trademarks; reissues in the case of patents with defective claims; and increase in duration from 31⁄2 years to 7 or 14 years in the case of design patent applications. Less of a problem is involved in stamping a patent with its extension date (similar to the former practice of stamping renewals in trademarks) than in calculating the shortened period of time for a patent granted under the moratorium laws, i. e., Public Law 690, 79th Congress, and Public Law 220, 80th Congress. The time for processing the petition would not overload the Patent Office, despite Mr. Arnold's point (3). While patent applications have to be amended many times, appeals taken, etc., the petition for extension proposed in H. R. 2128 in practically all cases would be a one-time, speedy determination. Even assuming that Mr. Arnold's comments in this connection were valid, this is tantamount to saying: Allow no more plant applications to be filed because not many people are interested in gardening and, besides, these applications further overload the Patent Office. In addition, the petitioner for an extension will pay $150 for an action, as against $30 for filing a patent application, and $25 for an appeal; so the budget will not suffer. The main purpose of this letter is to point out respectfully that, while Mr. Arnold is undoubtedly sincere in his statements and is the spokesman for NAM, an organization of approximately 20,000 manufacturers, as he states, there are some in the association who do not subscribe to his position but who subscribe instead to the statements made by John J. Lyons, representing G. & W. H. Carson, Inc., Plymouth Meeting, Pa., and Frank P. Scully, of Scully Signal Co., Melrose, Mass. Sincerely, HEILMAN & HEILMAN, P. S.-On March 7, H. R. 4700 was introduced. This bill is similar to H. R. 3134, in that it is too broad.-J. M. H. KENWAY, JENNEY, WITTER & HILDRETH, C. F. BRICKFIELD, Esq., Assistant Counsel, Committee on the Judiciary, DEAR MR. BRICKFIELD: I wish to record my opposition to any bill proposing to extend patents. I understand that the Judiciary Committee is considering three bills, H. R. 2128, H. R. 3134, and H. R. 4700, all generally providing that the terms of certain patents may be extended upon a showing that the owners' enjoyment of them was interrupted by the war. I oppose such measures in the light of my experience as a patent lawyer and also as a veteran. I believe that war is a universal catastrophe, as a result of which some of us lose our lives, some of us lose our property, and practically all of us are affected in one way or another. It would be an obvious impossibility for any governmeat even to attempt fully to compensate its citizens for losses of all kinds resulting directly or indirectly from a war. I fully believe that the compensatory measures taken on behalf of physically disabled veterans is insufficient, largely by reason of unwise and unnecessary bonuses, gratuities, and privileges accorded all veterans. To single out patent owners as a special class would be to hold the patent system up to the scorn of all Americans who have suffered as the result of war. I cannot suppose that a widow whose husband was killed on the field of battle would be disposed to regard with equanimity any proposal to confer special privileges on a manufacturer whose profits were diminished because the enjoyment of his patent monopoly had been interfered with by the war effort. I understand that proposals of this sort have progressed relatively far because little opposition has been voiced. I strongly suggest that the lack of vocal opposition is due to the belief (which I have certainly held) that such proposals are too absurd to be taken seriously. Surely, to pass legislation of this sort would be to demonstrate that the Congress is far too responsive to pressure from self-seeking groups. I believe that the committee should rather be impressed by the fact that those who know more about patents than any other group in the country, the American Patent Law Association, has firmly opposed this sort of legislation. Yours respectfully, HERBERT P. KENWAY. Hon. EDWIN E. WILLIS, VETERANS OF FOREIGN WARS OF THE UNITED STATES, Chairman, Subcommittee No. 3, Committee on the Judiciary, DEAR MR. WILLIS: The Veterans of Foreign Wars endorses H. R. 2128 and S. 116, to authorize the extension of patents covering inventions, the practice of which was prevented or curtailed by reason of service in the Armed Forces. According to our understanding of the bills as written, the period of extension is twice the period of service between the dates December 7, 1941, and September 2, 1945. Consequently, the period of extension for one whose service was terminated by reason of a service-incurred disability is not as great as for one who was not disabled in the service and continued on active duty until the end of the war. In our view, one who is disabled in the service should be entitled to the same extension period as those who were not disabled. We believe this might be accomplished by amending H. R. 2128 and S. 116 by inserting the following language immediately following the semicolon on line 4, page 2, of each of said bills: "Provided any such individual whose active duty in above services was terminated prior to September 2, 1945, because of a service-incurred disability, shall, for purposes of this Act be considered to have continued such active duty until September 2, 1945;". Respectfully yours, OMAR B. KETCHUM, Director. STATEMENT OF JOHN J. LYONS, A REPLY TO MAJOR POINTS ADVANCED AGAINST THE ENACTMENT OF H. R. 2128 The opposition to the extension of patents and to H. R. 2128 has pin-pointed section 154 of the 1952 act as the target of their reaction. This section defines a patent grant as "the right to exclude others from making, using, or selling the invention." The opposition takes the position that the wording of this section completely defines and limits the patent grants and that Government stop orders did not take away from the pantentee his "right to stop others." Last year Judiciary Subcommittee Chairman Kenneth Keating, of New York, looked beyond this narrow legalistic concept with its particularistic citations drawn from individual cases before the courts and addressed his attention as a legislator to the intent in the Constitution and the equity and justice in the problem. No clearer expression of the fundamental responsibility of the lawmaker can be given than by quoting his words before the House of Representatives, July 27, 1954, on H. R. 3534, the identical predecessor bill to H. R. 2128 which is now under consideration: "Mr. Speaker, I will leave to others, who by training and experience are hetter qualified than I, to discuss the niceties of legal theories regarding the characteristics of the rights which are granted to inventors by the issuance of patents by the United States. "My remarks will be confined to the fundamental merits of this bill as a demonstration of the determination of Congress to redeem the merited reputation that our Government holds for discharging whatever obligations it assumes, "As a prelude to these brief comments, it is sufficient to reiterate the significant words of our Constitution by which Congress is granted the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.' "I speak only to the basic question presented by this bill of whether or not the Congress, pursuant to this purposeful grant of power in the Constitution, already has passed legislation under which the Government has fully discharged the obligations it assumed by the issuance of patents to inventors. To weigh the equities of the proposed legislation now under consideration, it is immaterial to me whether the holder of a patent issued under our present laws has the exclusive rights to its full use and exploitation or whether he has merely a right to exclude others from its use. Under any theory, the fundamental issue before us is whether or not the Government has fairly and diligently and completely carried out the obligations thus assumed. "From the testimony presented to the Committee on the Judiciary upon the hearings on this and several other bills for patent extension, I believe the conclusion is inescapable that the Government is at least morally bound to grant an extension of the terms of patents under the conditions specified in the bill as amended by the committee. "Essentially, the rights granted to an inventor by the issuance of a patent under our laws are analogous to those which arise out of a simple contract. In exchange for the public disclosure and dedication of an invention, the Government of the United States solemnly undertakes to secure to the inventor the exclusive rights to the use of his invention for a full period of 17 years. That is the inducement to inventors which the Government has long offered by law and upon which inventors have been led to rely. "Now, as legislators we would be justifiably incensed if some one proposed that we enact a statute arbitrarily reducing the terms of patents heretofore issued and outstanding from the issued period of 17 years to a period of 13 years or even less. We would regard such a proposal as a clear violation of the obligations which the Government assumed when the patent was issued. And yet the result is the same when the Government during public emergencies issues an order directing that for a period of time the holder of a patent shall not use certain machines or articles or materials or processes the use of which is necessary to the use or development or manufacture or exploitation of a patented invention. A similar result occurs when the inventor himself is drafted into the armed services or is accepted for enlistment therein. "The fact that the Government does not take such drastic measures except during public emergencies does not justify the Government refusing to make reasonable restitution for that part of the 17-year period of the patent during which the action of the Government prevented or substantially curtailed the use and development of the patent. In my opinion, the provisions of this bill would provide no more than reasonable restitution in those classes of cases most directly affected. "The right to the exclusive use of a patented invention for the full period of 17 years is analogous to, if not in essence, a right of property. Where the Government expropriates private property for public use it is required by the Constitution to pay just compensation therefor. If public emergencies such as World War II or the Korean conflict force the Government to abridge the special obligations it assumed by the issuance of patents, the least the Government can do to make good its original undertaking is to extend the terms of such patents for a period corresponding to that during which the normal use or development of the patent was prevented or substantially curtailed. "My conclusion is that unless a bill such as H. R. 3534 is enacted into law, we cannot contend that our Government has fairly and justly carried out the obligations it assumed by the issuance of patents under our laws. To avoid such an unjust and distasteful consequence I urge all of my colleagues to support this bill." Our patent laws find reason for their existence in article 1, section 8, clause 8 of the Constitution which reads as follows: "The Congress shall have power *** to promote the progress of science, and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries; the words 'by securing for limited times' connote no limitation in the meaning of the word 'securing' or any contingency in the terms of the 'limited times' as established by the Congress." The clause does not say, "Congress shall have the power to grant to inventors the right to prohibit others from using their inventions." It does say, "Congress shall have the right to secure to inventors the exclusive rights to their discoveries." By implication, at least, the right to exclude all others from practicing a patented invention includes the right to waive the exclusion, and to grant licenses to others. These rights of exclusion and its waiver are certainly vested solely in the patent owner. When society, through the action of a government agency prohibits the exploitation of such patented invention for any portion of the 17-year contract period, then society has taken the right of exclusion from the patent owner hands and into its own. Section 154 of the 1952 act must be interpreted in its relation to the clause of the Constitution which gave Congress the power to enact patent legislation and also in connection with other provisions of the 1952 act. The clause in article 1, section VIII, clause 8, of the Constitution provides: "The Congress shall have power *** to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." Of what the patent grant consists cannot be understood until the above clause in the Constitution is understood. Under this clause two, and only two areas for the exercise of judgment and decision are left open to the Congress. These two areas are: 1. "The Congress shall have power to promote the progress of science and useful arts ***" This does not make it mandatory for Congress to use such power-that is left to the judgment and decision of Congress. 2. "For limited times"; This means that the length of life allotted to a patent is left to the judgment and decision of Congress. Note that with the exception of allowing Congress to set the time limit, the nature of the reward to be offered inventors is not left to the judgment of Congress. This reward is clearly spelled out in this clause of the Constitution, and Congress has not been granted the right to alter its nature. This clause provides that in the event Congress decides to offer a reward to inventors it may do so by promising "to secure to inventors the exclusive rights to their respective discoveries," and for a length of time to be determined according to the best judgment of the Congress. There can be no other interpretation of the patent clause in the Constitution. The word "secure" is a word of definite meaning. Anything less than a definite meaning changes the word to "insecure," and there is no limit to the degrees of insecurity. The word "secure" is as definite as the word "dead." Almost dead is not dead; almost secure is not secure. And what is secured to inventors? The full rights of a patent as personal property. The 1952 act recognized this, for the first paragraph of section 261 states, "Subject to the provisions of this title, patents shall have the attributes of personal property." The footnote in explanation of the new wording of section 154 of the 1952 act reads as follows: "*** the wording of the granting clause is changed to 'a right to exclude others from making, using, or selling,' following language used by the Supreme Court, to render the meaning clearer. ***" From this it can be seen that it was not the purpose of the authors of section 154 to curtail the rights granted to inventors, as provided for by the Constitution, but rather it was their purpose to “render the meaning clearer." To understand the intent of the authors of section 154, we must look at the prior law. Section 4884 of that law defines the patent grant as “*** the exclusive right to make, use, and vend the invention * The above, while far from complete, is more in keeping with the granting clause in the Constitution. The change to the new wording, section 154, was made because certain persons had taken the wording of the old section 4884 literally without regard to any matter other than the words used. They claimed that when an inventor was granted a patent for an improvement on a previous patent then, due to the wording of this clause he also received the right to "make, use, and vend" his invention even though in so doing he trespassed on the unexpired rights of a previous inventor. While from time to time such legalistic twist on the definition of the patent grant as outlined above was attempted, in no case did the courts support such contention. Nevertheless, the authors of section 154 believed that the new wording would avoid any such interpretations, and would "therefore render the meaning clearer." This new wording does make it clear that the inventor of an improvement on an underlying patent, which is still active, cannot claim the right to the use of the underlying invention, and to that end, but only to that end was the meaning rendered clearer. In attempting to clarify this one phase, the authors forgot that in many cases there are no active underlying patents which would prevent the use of new inventions, and that many improvement inventions are based on expired patents. 66663-55-7 |