So, to avoid the argument in one case, the authors provided a new wording which the legalistic quibblers are now using in an attempt to limit the scope of a patent grant from that specified in the Constitution. Section 154, in curing one possible misinterpretation of the patent grant, has provided the opportunity for a new misinterpretation which could not have been in the minds of the authors of section 154 at the time it was written. It should be abundantly clear that section 154, of the 1952 act, can be interpreted only in connection with the constitutional provision of article I, section 8, clause 8. In view of this constitutional provision, the proper interpretation of the patent grant is: The inventor shall have for a period of 17 years the exclusive rights to the full use and control of his invention, provided it does not infringe upon underlying inventions or patents which are at the time still active. Congress has the power to rescind the patent laws in their entirety. Congress has the power to alter the length of life allotted to issuing patents, but Congress does no have the power to alter the nature of the patent grant. Furthermore, under our Constitution, no other department of our Government has the power or the right to alter the length of life of a patent. While Congress has the right to change the 17-year period of issuing patents, it does not have the right to shorten this period on already issued patents. A patent once issued is a contract between the inventor and the Government, and a contract, unless expressly provided for in its terms, cannot be altered on a unilateral basis. When during World War II, an agency of the Government issued stop orders which deprived the owner of the full benefits of his patent, it took unilateral action which breeched the contract and reduced the 17-year term agreement to, in most cases, a 13-year tenure. The Government is under legal and moral obligation to restore to the patent owner the time so taken away and no ruminations on legal dicta can dissolve this responsibility. The Patent Act of 1952 has recognized the principle involved by providing that compensation shall be paid inventors whose public use of their inventions was prevented by Government secrecy orders, even though their patent when issued will then have the 17-year life. Section 183 of the 1952 act provides: "An applicant *** whose patent is withheld *** shall have the right *** to apply to the head of any department or agency who caused the order to be issued for compensation for the damage caused by the order of secrecy It is argued that the wording of section 154 of the 1952 act is correct because the Government cannot give to an inventor rights which he already possesses. So far as it goes, that is correct but in keeping with the Constitution, the Government can secure to the inventor those rights, and that is exacly what the patent grant promises. Taking 4 years away from a patent owner certainly is not securing him in his right to 17 years protection as promised in the patent contract. Again, we do not regard as conclusive against general patent extension legislation as such, the argument advanced by the opposition that the patent owner receives only a limited right to exclude others from making or using or selling his patented invention and is therefor not entitled to relief unless, as is almost never the case, that limited right has been impaired. Such argument overlooks the development of the principle of "frustration" in the general law of contract, which, as Professor Williston has pointed out, is applicable even though performance of the contract has not, literally, become impossible. Thus, as stated in 5 Williston on Contracts (Rev. Ed. 1938) par. 1935, containing a classification of cases of excusable impossibility, it is stated at page 5419: "The fifth class does not strictly fall within the boundary of impossibility. Performance remains entirely possible, but the whole value of the performance to one of the parties at least, and the basic reason recognized as such by both parties, for entering into the contract has been destroyed by a supervening and unforeseen event. This does not operate primarily as an excuse for the promisor, the performance of whose promise has lost its value, but as a failure of consideration for the promise of the other party, not in a literal sense it is true, but in substance, because the performance has lost its value. The name 'frustration' has been given to this situation. Until recently, it has received little clear recognition, but its adoption seems involved in some decisions and their justice is plain." (Emphasis in original.) See also, ibid, sections 1954 et. seq. As pointed out in later sections of Professor Williston's work (see particularly, ibid., pp. 5478-5480), the better rule is that one who has furnished the agreed compensation prior to the happening of the event constituting frustration, and prior to performance by the other party to the contract, should be permitted to recover such consideration. There is no particular difficulty in equating situations arising under the general law of contracts and those existing with particular reference to the patent contract. And it would appear that there are patent situations on the basis of which an equitable claim for extension can be made out. A patent may be regarded as a contract between the United States and the patentee. The undertaking of the patentee is to teach the public how to practice his invention and to dedicate that invention to the public. Assuming the undertaking of the United States to be the limited one of assuring to such patentee the right to exclude others from making or using or selling the patented invention for a term of 17 years from the date on which the patent issued, it is submitted that a basic reason, recognized as such by both parties, for entering into this contract, is that the patentee, or those licensed by him, shall be able to practice the invention for economic gain-for however much the invention may be worth. We have no doubt that the profit motive constitutes a fundamental premise upon which the draftsmen of the Constitution and the patent laws hoped to stimulate inventors to exert themselves and to disclose the results of their work, and upon the basis of which also, inventors do these things. It does not seem realistic to take the position that either party to this compact was under any illusion that invention would be stimulated, or that inventors would be satisfied, by the granting and receipt of a nugatory right to exclude. It should also be noted that the patentee has fully performed his part of the bargain, and furnished all of the requested consideration by the disclosure inherent in the issuance of a patent. Although, strictly speaking, it is impossible for him to recover this consideration once disclosure has been made, it seems entirely consistent with the remedial principle of the doctrine of frustration to afford him relief, in an appropriate case, by granting an extension of the term of his patent, for a period equal to that for which frustration was operative. This would be analogous to permitting recovery of the value of performance, where counterperformance has become impossible. (See 6 Williston on Contracts (Rev. Ed. 1938) par. 1972.) It is further to be noted that the principle of contract "frustration" is applied wherever the requisite failure of consideration can be shown to exist, without regard to whether such failure can be attributed to action on the part of the other party to the contract. It would seem that the right of the patentee to some remedy for frustration of the patent contract would arise a fortiori in those cases where such frustration was brought about by act of the United States or any of its agencies. The fact that the right to relief might be limited to those cases in which it could be established not only that the patent contract had been frustrated, but also that such frustration had been caused by the United States or any agency thereof, has a bearing upon another objection frequently urged against any and all patent legislation, namely, that such legislation would introduce an element of uncertainty into the planning and preparations of those who intend to utilize patented inventions after they have terminated. If the remedy is in fact limited to those cases where there has occurred, in whole or in substantial part, a frustration of the contract between the inventor and the United States. brought about by the latter, the number of patentees entitled to relief is not likely to be great, save after a war or other grave national eergency. Even then, in such situation, the equities would seem to lie definitely on the side of the inventors rather than on that of manufacturing members of the public seeking to take advantage of a contract, the consideration for which has failed. Moreover, those sufficiently well advised to be able to plan or prepare to utilize specific inventions as soon as the patents thereon terminate, would be, in most cases at least, well aware of the existence or nonexistence of the conditions upon which a request for an extension could be based. Another argument, against patent extension legislation-to the effect that such legislation is class legislation and as such is inequitable to the many citizens who inevitably suffer loss of one sort or another during wars or national emergencies and receive no compensation therefor-if carried to its logical conclusion, would preclude the granting of any relief for the taking of property, or for other casualties. Without a doubt, the United States could not afford to remedy all of the financial casualties of war. This has not, however, prevented the Congress from making provision for relief for those having direct contractual relations with the Government whose position was adversely affected by gov-ernmental action. This is exemplified by the statutory provisions for the termination of war contracts (41 U. S. C., par. 101 et seq.). In this connection, it may be recalled that Representative Crumpacker, during the 1953 hearing before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, 83d Congress, 1st session, on H. R. 1301, et al., stated, as reported at page 76 of the printed transcript of the hearing: "In that connection, I might suggest that the solution rather than one individual private bill might be general legislation permitting all people in that class to file claims perhaps either in the Court of Claims or in some commission set up for the purpose similar to provisions in the war contracts termination: legislation and things of that sort. It would relieve Congress of the burden of passing on each individual case when it arises." Although "frustration" of the patent contract differs technically from the breach of contract involved in canceling or terminating war contracts, both situations under the general law of contracts give rise to a right to relief. Ac-cordingly, there is no more ground for regarding patent-extension legislation as class legislation than there is for so regarding statutory provisions seeking to protect war contractors on termination. CORPUS JURIS SECUNDUM, VOLUME 69 Section 5.-Patent as contract A patent duly issued amounts to a contract between the inventor and the Government. A patent duly issued amounts to a contract between the inventor and the Government, under which the public, through the Government, agrees that, in consideration of the inventor's disclosure of his invention and the grant of the right to use it after his patent expires, he shall be protected in his exclusive use during the life of the patent, and the certificate of patent, or instrument containing the grant of a patent right, evidences such a contract. This contract consists of mutual, interrelated considerations moving from each party to the other for such contract. The consideration given on the part of the patentee is the disclosure of the invention and the advantages derived therefrom by the public, to the effect that, when the statutory right to exclude others from the use of the invention has expired, the public generally may exercise its natural rights to make, use, and sell anything of which it has sufficient knowledge. The consideration on the part of the Government is the grant of the exclusive right to make, use, and vend the invention throughout the United States, and the territories thereof, for a limited period of time. Section 6.-Patent right as property A patent right is an intangible, incorporeal right, and is regarded as property, personal to the owner thereof, and as having a situs only at his domicile. A patent gives the patentee title to an intangible, incorporeal right, in the nature of a privilege or franchise, a title which continues to exist until divested by a voluntary grant or other legal means of divestment. The right granted is a species of property, property of the patentee, or holder of the patent, which, insofar as its incorporeal nature permits, is subject to the general laws relating to such property, and is surrounded by the same rights and sanctions which attend other property, and is protected by the same constitutional guaranties, and, therefore, is protected against appropriation or interference both by individuals and by the Government. Even a patent application is itself property. CONGRESS OF THE UNITED STATES, Hon. EMANUEL CELLER, HOUSE OF REPRESENTATIVES, Washington, D. C., April 19, 1955. Chairman, House Committee on Judiciary, House of Representatives, Washington 25, D. C. DEAR CHAIRMAN CELLER: I wish respectfully to request that the Committee on the Judiciary give favorable action to H. R. 2128 to extend the terms of certain patents. I am of the opinion, as are many of my constituents, that the provisions of the bill offer the only fair and just solution to a problem placed by two wars upon inventors, through no fault of their own. Sincerely yours, Hon. PETER FREYLINGHUYSEN, Jr., DON MAGNUSON. MIESSNER INVENTIONS, INC., Morristown, N. J., April 12, 1955. House Office Building, Washington, D. C. MY DEAR CONGRESSMAN: Last year patent extension bill H. R. 3534, after passing the House and the Senate Judiciary Committees, narrowly missed passing the Senate when, in the last hour before adjournment, Senator Gore interposed a suggestion for some further study. This proposed legislation, now H. R. 2128, must run the same gantlets as last year's 3534, with perhaps an easier course because the proponents and the Congress are more familiar with it. Whatever you may be able to do to aid its enactment will be very much appreciated by all those inventors and patent owners who, like myself, were prevented by wartime decrees from enjoying the full 17-year patent term stipulated in the Government's agreement with patentees. During most of the past 25 years the patent system has been cruelly emasculated by a number of factors, among which principally are: 1. Congressional failure to appropriate adequate funds for carrying on the Patent Office work. (They give Stassen billions for foreign aid!). 2. The flash-of-genius decision of Justice Douglas which makes it well nigh impossible to secure patents on any but new law-of-nature inventions. 3. The decisions of the district courts which have invalidated about 9 out of 10 patents in infringement suits. 4. The rulings of the Treasury Department in refusing capital gains treatment for income derived from inventions. (In one case this cost me an additional $48,000 in tax when the Revenue Department reversed its 12-year policy relative to this matter.) As a result of 3 above, patent infringement by manufacturers has been rife and, as a result of all these reasons, independent inventors particularly have greatly reduced their efforts to improve the world we live in, or have gone into Government or industrial laboratories. It has been shown time and time again that our great milestones of industrial and national progress have been laid by independent inventors. This is not generally realized, because they find their way by adoption into the large manufacturing organizations whose uniform policy gives them the company name and dress so that the populace is led to believe that they were organization-born and bred. Very seldom is the real inventor ever mentioned. More likely than not, his patents are infringed or "designed around" and he doesn't even receive a financial reward. Unfortunately, the days of Alexander Graham Bell, Tom Edison, and George Westinghouse have long since passed. If the inventors and entrepreneurs who have made America great are not, like "the goose which laid the golden eggs," to be throttled by a beaten-down patent system, a lot must be done, and soon, to rectify the errors of the past 25 years. So much for the patent system in general. Returning to patent extension legislation, there are on record numerous cases where patents of individual inventors have been extended because the Govern- · ment has been unable to perform its contract with the inventor. In these, separate bills have been passed. In my own case, I have some 75 patents in 1 field (electronic musical instruments) which were outlawed during the recent wars. These patents began issuing about 1932 and continued through the years. Licensing operations were begun in 1935 under patents relating to electronic organs, pianos, and guitars. By 1938 royalty income had risen to about $20,000 a year. Then as War II came on, all of these manufacturing operations were forced to a stop by materials allocations decrees. This continued throughout the war and, because of related factors, were, in case of pianos, never resumed. In the case of organs, resumption of manufacture could not take place until 1946. A few years later many of my earliest and most basic patents began to reach the end of their 17-year terms. Over 30 have now expired, and their later years, when royalties were rising to a point which promised to put my operations in financial black, these operations were killed by governmental edict. On a conservative basis, I figure that this cost me at least $100,000 on the prior manufacturing operations alone. Now I have a new, stringless electronic (portable) piano, with a very large potential market, on which I have been at work since 1930. It is no mean scientific achievement, and the world's largest musical-instrument manufacturer has a license under my patents for its manufacture. Indeed they have just begun merchandising them. However, many of my earlier patents, on which this development is based, have expired, and reliance on them for royalty collection is now nil, so that my position vis-a-vis patents is insecure. I therefore request that you prepare a bill designed to extend the lives of those patents of mine which have expired (or could not be worked) since the beginning of World War II, for a period of at least 4 years. In addition to the reasons outlined above, there are some others which should have some bearing on this case: 1. I served in the United States Navy from 1908 to 1911 as a wireless operator. 2. I served the Navy as a civil-service employee (expert radio aide for aviation) at Pensacola, Fla., during 1916-17, with technical charge of the development of radio for aircraft. 3. During War II, I dropped all of my own research and development work and did intensive, private, and unremunerated research work on military applications of electronics, such as radar, sonic-radio, antisubmarine buoys, and other such devices, radio altimeters, highly portable radio transmitters, etc. My dealings were mostly with the Bureau of Ships. 4. During War II, I gave to the Government, through the Secretaries of War and Navy, nonexclusive, royalty-free licenses under all of my patents. All of the above can be fully documented. My purpose in requesting you to prepare and get enacted a special patentextension bill for the patents above outlined is twofold: (a) To indicate to Congress that they may expect a flood of such requests for private bills, if they do not pass general laws such as H. R. 2128, and (b) as an "anchor to windward" in case such legislation is not enacted. I will be glad to give you full details as to patent numbers and dates, losses caused by my inability to work these patents during the war years, etc., as you may require. If you could grant me a personal interview at some convenient time in your Morristown office, I will be glad to present any further facts which you may require and to answer any and all questions. Or, if you would care to visit me here sometime, where I have all of the information you may require, that would be even better. I know that you are always extremely busy, but as my Representative in Congress, I must urge your consideration of these requests. The Government simply has not met its just contractual obligations relative to a 17-year term for working my patents, and I have no other recourse. Additionally, it is very important at the very present that these patents be extended, for my licensee has just requested the numbers of my patents which bear on the electronic piano which they are making, so that they can decide whether or not to pay royalties specified in our agreement. May I hear from you at your early convenience? Very truly yours, BENJAMIN FRANKLIN MIESSNER. P. S.-I am a director of Patent Equity Association. My company (letterhead) is a personal holding corporation for my inventive operations, and a oneman outfit. B. M. INDUSTRIAL CONFERENCE BOARD, Hon. EMANUEL CELLER, Chairman, House Judiciary Committee, DEAR MR. CELLER: During the last Congress a measure to restore equity and grant relief to thousands of patentholders and servicemen passed the House and was defeated in the Senate only by the refusal of one Senator to agree to suspend the rules. This measure is again before the Senate as bill S. 116 and before the House as bill H. R. 2128. Its effect is to extend the life of patents in cases where the |