« PreviousContinue »
and at the end of the emergency it stops, and he reverts to, as nearly as may be, his present situation.
The CHAIRMAN. Any further questions, gentlemen! If not, we thank you very much. You will submit those amendments ?
Mr. FENNING. Yes, Mr. Chairman. Thank you.
S. 1579 (Committee print No. 1] Page 4, line 12 after “tools" insert "processes.”
Page 4, line 13 cancel "patents” and at the end of the line insert: "or a nonexclusive, divisible, transferable license under any United States Letters Patent or Patents."
Page 5, line 6 before "patent" insert "license under a"; same line cancel “or patent right".
Page 5 line 11 add: "Every license so acquired or disposed of shall be limited to production for National Defense purposes and shall be limited in time to, and shall expire with, the emergency. To requisition a license under a patent the President shall send a notice identifying the patent to the Commissioner of Patents who shall record it in the Records of Assignments and publish it in the Official Gazette of the Patent Office and send a copy to the address of the owner of the patent.”
Page 5, line 21 after “President” insert: "within thirty days of the date of the requisition".
STATEMENT OF LESTER P. BARLOW, STAMFORD, CONN.
The CHAIRMAN. Mr. Barlow will be the next witness.
Mr. Barlow, will you be good enough to provide the reporter with your full name?
Mr. Barlow. Lester P. Barlow, mechanical engineer, Stamford, Conn.
The CHAIRMAN. Mr. Barlow, I understand that you want to speak particularly in connection with the question of patents.
Mr. BARLOW. Yes, sir. Mr. Chairman and members of the committee, gentlemen who have preceded me have discussed the law phase of the proposed patent requisition. My case certainly could be held here as exhibit No. A, of how the patent works in time of war, and how compensation is finally if ever paid to the patentee, the inventor.
I have been 23 years trying to get paid for my patents' use in the last war, and not on something they just took at the War Department, but on two patent contracts they there actually voluntarily wrote without my presence but for my protection.
These contracts originally were drafted in 1916, and I was told at the time by several officers of the War Department I should be more careful about my business relations with the Government. I always came back with the statement that I did not feel that the Government would try to rob a man, and particularly in connection with munitions experimenal work, and that after the war I certainly thought I would be properly taken care of. In those days honor meant something in our War and Navy Departments.
Now, here is a letter which was printed in the records during the Barlow and War Department litigation. Subsequently, as most of you may remember, last year the Congress voted to me almost $600,000 as the result of the suit against the War Department that I won in the Court of Claims, and the President signed the bill, and the Comptroller General cleared me of all obligations to the Government, I have had to sue the Treasury Department for that money again, and
I am still suing for half of it; suing the Government for more than half of it again, and if I can live another 25 years, I might get it; but I do not want that kind of business in the future. I want to know where I stand in this war. I'll give the Government the Glmite patent rights for military weapons, but I just do not want any more contracts with the War Department.
Here is a letter written to me by Col. Jay E. Hoffer. This man was in charge of the Ordnance Department section pertaining to bombs and certain types of munitions and he was honest. He wrote this letter on September 14, 1925, to assist me in my litigation, against the War Department because he was the man who knew the history of the matter.
Men come into the defense departments years afterward and know nothing about it, get all kinds of ideas, honest and dishonest, and conjure up all kinds of thoughts; but the man on the job at that time away back in 1916, in every particular question, sustained me in the Barlow v. War Department litigation, and here is his letter:
SEPTEMBER 14, 1925. Mr. LESTER P. BARLOW,
Borglum Studios, Stamford, Conn. DEAR MR. BARLOW: With reference to your claim before Congress for compensation for your bomb inventions, I am sending you the following statement which I would be glad to send to anyone you may name.
"From the beginning of the calendar year 1916, and until December 15, 1917, I was on duty in the office of the Chief of Ordnance, Washington, D. O., as head of the division having charge of the design and procurement of certain classes of ordnance material, which included bombs.
"During the 15 months prior to the declaration of war, the Ordnance Department became greatly interested in the designs of bombs submitted by Mr. Lester P. Barlow, and encouraged the work of development to the extent of placing the facilities of the Frankfort Arsenal at his disposal. The designs were considered so promising that the question of their production in quantity became of great potential importance. As neither the Ordnance Department nor Mr. Barlow was in a position to undertake this work, Mr. Barlow was encouraged to interest private manufacturers, who either had the necessary technical knowledge and facilities or who were in a position to procure the same. The company he interested and with whom the Ordnance Department made contracts for the manufacture of bombs of his designs was the Marlin-Rockwell Co. of New York." With kindest regards and best wishes, Very sincerely yours,
JAY E. HOFRER,
Colonel, United States Army (Retired). Now, you see, gentlemen, I was going to go ahead in 1916 with those designs long before the emergency arose. That was during a time when we were running a campaign in this country io elect a President because he had kept us out of war. There was anything but a war spirit going
I had put in years developing this explosive and these munitions. I had served a period of 4 years in the Navy, years before, in gunnery and ordnance; torpedo and electrical work, and so on, and I had gone into the Mexican revolution to develop and test my early bombs. My first bomb—I did not pick these inventions off of trees or up off the ground. All of those development years I had been operating without compensation and I considered that some day when the necessity arose for bombs in national defense I might be paid. The officers in the War Department wrote those two contracts with the MarlinRockwell Co. to take care of the bomb patent rights after the war was
over and for my benefit. We should have those kind of men in the War Department today.
During the war, and after the war was declared, the Trading with the Enemy Act was passed, and that put the Secrecy Act on not only me, but my attorneys, and the companies which had my patent contracts, the Marlin-Rockwell Co.
None of us could discuss my inventions with anyone without the written permission of the Secretary of War, the Secretary of the Navy, or the President. If we talked without such permission, we violated the law. All of us were subject to that, and if we discussed the inventions out of secret, we were subject to 10 years in the penitentiary and a $10,000 fine, or both, unless we had those Government written orders.
That also subjected us to complete loss of our property rights in the Patents. That is the law today.
Now, that bill was passed July 25, 1910, with limitations, of course, and modified or amended on July 1, 1918, to the strict routine that I have just told you.
All during the war I was called in by the Ordnance Department to discuss manufacturing. At one time they took me to the Liberty Bank in New York, one of the subsidiaries of the Morgan banks, and there in a room was a table much longer than this one where there were about 45 different representatives or different manufacturers, who might make bomb parts. I sat at the head of the table with one of the Morgan bankers, and outlined the particular piece, like the Dohler Diecasting which could be made by the Dohler Diecasting Co. They could make the die castings, and the Hale & Kilburn concern could make the light sheet parts, and I outlined to these representatives of these separate companies, who could best make the individual parts of the bombs and bring them all together to a central plant for assembly.
In that case I was not violating the secrecy orders, because I was working generally under the Government authority and with this Morgan bank man who also was a Government agent, and I was following his instructions, with the permission of the Chief of Ordnance.
I came down here to other conferences of that type in the War Department, but when I went out to Cleveland to assist the Glenn L. Martin Co. in putting bomb racks on their planes to fit the Barlow bombs, I never dreamed that when I went into this suit years later, the Government was going to attempt to take my patent rights away from me, because I was assisting that company in fitting the bomb racks of those planes to carry Barlow bombs.
Nevertheless the Government brought that up as a defense in the Court of Claims and tried to completely wipe me out because I went to the Glenn L. Martin Co. and actually did assist in fitting those racks on those planes, but the Court of Claims would not listen to it.
I was even asked by the Government attorneys if I had discussed this matter with my mother; I was asked that by a Government attorney in the Court of Claims. I was asked how many men I had in my laboratory at Liberty Field, which was my own private flying field, connected with the Marlin Arms Co. I said I had about 40 on the staff. I was asked if I discussed the patents and inventions with any of those men in my own shops during the war.
I said, “Well, yes.” Then I made the statement, “I could not win the damn war all by myself," and the commissioner in charge of the hearings, the trial judge, Judge Gordon, or Commissioner Gordon said, “The witness is right." He said that we had to have our engineers and other cooperating during the World War in order to get this equipment. He said that that line of questioning could not be accepted in his court.
That gives you an idea as to what you are up against when you try to collect on patents from the Government.
Now, the Government of the United States has every possible invention right that it can wish and has that right under the present law. It can pin me down to secrecy and I cannot even go to a manufacturer. Even at this time we may be manufacturing my articles under patents which have been granted, but not made public; all of my patents during the World War were made special and secret by orders and by requests of the Secretary of War to the Commissioner of Patents.
I could introduce into the Patent Office the application on Glmite, which I have not done, because I just do not dare to. They could immediately declare that a secret application, and I would be bound to secrecy and the War Department would probably claim it as its invention. I could not go to a single man or a single person and ask for a dollar to develop it without breaking the law. I could not employ a single man to carry on my experimental work with me and tell him what I was doing. I could not make a single move of any kind which included another living person, or I would forfeit all of my patent rights right there. That is the law today.
Now, the present acts or law permits the Government to take over any patent rights of an individual it wants in order to manufacture for the Government, but the Government can't take the patent and sell it as this bill provides.
I suspect that this bill as drawn has hidden in it somewhere an attempt to carry out much of the practices which were carried out during the World War under the Secret Act, but which did not go far enough then to suit some, because they would have liked to keep United States patent rights, or at least stop a company, after the war, from going ahead with the things that were rightfully its own.
Now, I can see that if I went ahead again at this time as I did in the last war-I developed a great many things used by this Government; many, many millions of dollars were spent building the devices which I created—the synchronized aircraft gun. I built the first one in this country. I got my company into that business, and they succeeded in building 38,000 of those synchronized guns during the war, and into use. The United States Government did not produce a gun of its own design during the entire time of the war which they could get manufactured in time to get it into the war, and the only one that was produced or was in production, of their design, was the one which they came to us to make for them when everybody else in the United States had failed. But the gun we designed, and which we patented, the War Department took our designs and turned them over to the Chicago Pneumatic Tool Co. We could not squawk. We could not say a word. Secrecy stopped us. We were the ones who knew how to make that thing. The Chicago Pneumatic Tool Co. did not and they never could get one to work from their production
stock until after much trouble. We knew what it was all about. They did not. We were the people who were competent to do the work. We designed and created the thing. The other fellow waited for us to make it work and then just grabbed the business.
The Marlin Co. got no royalties for that. The bombs which the Marlin Co. financed me in producing—the original ones—had the same story. Most of the bomb contracts were turned over to other corporations who had not put up a dime for their development. The Marlin Arms Corporation could not collect after the World War, because their patents had not been published and the War Department and industry said, “You did not publish your patents.” The company says, “Well, we could not. We were stopped by a secrecy order. We would have gone to the penitentiary if we had.”
“Well, that leaves us out,” said the other fellows.
We went back to the War Department, and they said, “Well, you did not publish your patents.”
They said, “How can you collect on somebody else's production.” We said, “Because they are our patents.”
"Well, that is another department of the Government,” said the War Department.
Now, mind you, new faces had come on the scene since the original contracts were entered into with the Government, men who do not know anything about them. We had a new crowd in the War Department.
A lot of men came in from industry, were commissioned into the military service, and their companies got our inventions and the Marlin Co. simply failed to collect a dime of those royalties established under the two contracts with the War Department.
They owed me, under my contract, $50,000 a year minimum.
The United States Government clamped down on the Marlin Co., however, for overpayment as they claimed on guns, they clamped a stop order against them from receiving royalties, with the result that they could do nothing but go into receivership, and they were in receivership for a number of years, and the receiver would not release any of my patents back to me--called for under my contract with the company in any year in which they failed to pay the $50,000.
I am showing you how the wheels of the Government worked in my patent case, gentlemen.
The President writes, and he is quite sincere. He wrote this the other night or the other day to the chairman of this committee :
I call your attention to this fact, while the Government should be in a position to obtain this essential equipment and property, it is wholly. willing to pay just and fair compensation for it.
Well now, the President believes that, and Mr. Patterson, of the War Department, here the other day made a statement like that, I noticed it in the record. He believes it, but he should look up the War Department history on patent rights. He would learn something
But I know, as exhibit A, after 25 years that the Government of the United States, which is a very abstract thing, which comes down to an individual somewhere in the Department, and the individuals down in the departments, most of them are honest and fine but there are just enough in there who say, “Well, we do not want to pay for