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(The telegram and letter are as follows:)
JOSEPH R. BRYSON,
House Office Building, Washington, D. C.
ST. PAUL, MINN., June 19, 1951.
We favor the enactment of legislation providing for the extension of the original terms of patents where the use, exploitation, or profit thereof were prevented, impaired, or delayed by reason of governmental restriction during the war or for other causes resulting from the last war.
MINNESOTA MINING & MANUFACTURING CO.,
CLEVELAND, OHIO, February 20, 1951.
Re H. R. 9366.
Hon. JOSEPH R. BRYSON,
Member, Judiciary Committee, House of Representatives,
Washington 25, D. C.
MY DEAR CONGRESSMAN: We understand a bill has been introduced, H. R. 9366, which would extend patents to compensate for the war and other national emergency years, a bill somewhat similar to H. R. 4511 about which we wrote your committee members in 1948.
The enclosed copy of the Glenn Moore Shaw letter sent at that time gives facts I believe will be of interest.
Our patent on the Carpenter monolithic concrete floating floor and piping system, which auditoriums, ice arenas, field houses, outdoor rinks, expired in July of 1950, without having the full benefit of its use owing to the war and following restrictive years.
We feel and we should be allowed to carry on for an compensating period, and ask your favorable vote.
Thanking you, I am
Mrs. M. R. CARPENTER
JANUARY 30, 1948.
Re H. R. 4511.
Hon. E. WALLACE CHADWICK,
Congressman from Pennsylvania,
House Office Building, Washington, D. C.
MY DEAR CONGRESSMAN: This letter is in behalf of Mrs. M. R. Carpenter, who I understand has written you asking that you give serious and considerate attention to bill H. R. 4511 which refers to extension of patents and which I believe has come before the Subcommittee on Patents of which you are a member.
It is also my understanding that a substitute bill, H. R. 4304, which would extend patents belonging to veterans of World War II only, has been tentatively recommended by the said subcommittee on the basis that a general extension to all patentees would not be feasible. There is probably some justification in their conclusions but there are certain moral aspects that apply in Mrs. Carpenter's case and unquestionably in many others, that should merit further and specific consideration.
Mr. M. R. Carpenter was an engineer and owner of patents of processes (the all-purpose floor) that were completely curtailed during the war years. These patents have but a short life before expiration. With a patriotism and zeal belying his 72 years, he offered his engineering knowledge and himself to the aircraft division of Fisher Bodies and was immediately placed in the development and expedition of engine nacelles for bombers.
After 2 years of this work and after an especially hard day at the plant, he slept away of a thrombosis. There was no military funeral and no medals, but M. R. Carpenter was a war casualty as surely as though he had stopped an enemy bullet on a battlefield.
I am reciting this little human event to you (such things are not discussed in subcommittees) that you may consider what seems an injustice and a penalty imposed upon Mr. Carpenter's family who is carrying on his business, simply because he was not wearing a military uniform when he died.
When bill H. R. 4304 is being discussed again, please lend your efforts in rectifying what would be an injustice in I am sure, many comparable cases. Very truly yours,
GLENN MOORE SHAW.
Mr. HARRIS. The next witness is Mr. Harry H. Hitzeman.
STATEMENT OF HARRY H. HITZEMAN, PATENT LAWYER, CHICAGO, ILL.
Mr. HITZEMAN. My name is Harry H. Hitzeman, and I am a patent lawyer from Chicago. I have a statement that I would like to file for the record at this point.
Mr. BRYSON. It may be inserted in the record at this point. (The statement is as follows:)
STATEMENT OF HARRY H. HITZEMAN IN RE H. R. 323
My name is Harry H. Hitzeman. I am a patent lawyer from Chicago, Ill. I am interested in the passage of a patent extension law such as H. R. 323. This bill provides for the extension of the terms of patents when the use, exploitation, or promotion thereof was prevented, impaired or delayed due to war, national emergency or other causes.
These causes might arise from:
(1) Granting of royalty-free licenses to the United States Government, or to suppliers of the Government.
(2) Restrictions or prohibitions imposed by the policy of some branch of the United States Government such as prohibition of manufacture of certain things due to shortages of materials, etc.
(3) A state of national emergency either as proclaimed by decree or as existing in fact any prolonged period of time.
(4) A state of war during which the energies of the Nation are directed to manufacture of war materials.
(5) Any other circumstances beyond the control of the patent owner or holder. The application for extension would set forth the facts upon which the extension is based, and if the Commissioner of Patents, from the evidence presented, is satisfied that a patent should be extended, he shall grant such extension for a period commensurate with the extent to which the normal economic return from such patents was prevented, impaired or delayed during the period specified in section 1 of the act and by reason of the circumstances mentioned therein. Similar bills to extend patents have been introduced in practically every session of the Congress for the last 10 years because of the fact that more and more people are realizing the extent to which the patent protection which they obtained by means of a patent has been cut by periods of national emergency, war, etc. In every session of the Congress there have been a number of bills of this general tenor introduced by Congressmen from various parts of the country, and all for the same purpose, that is to extend the term of patents where the normal exploitation has been prevented.
In connection with the armed services personnel, after spending several years during several sessions considering various bills, Congress in the Eighty-first Congress, finally passed a law, now Public Law 598, extending to veterans their patents for a period of twice the length of their time in service, on the sole condition that they show they were not able to benefit from them during the time of such service.
In a report on the hearings held by a subcommittee of the House Judiciary Committee of the Eighty-first Congress, in reporting the above public law favorably, the committee said in part:
"Representations were made and were seriously considered by the House committee that the benefits of such legislation should inure to all patentees who suffered losses by reason of being unable through shortages of materials or other reasons during the war to prosecute and exploit their patent rights. That committee, however, felt that to provide relief for all such persons who suffered losses in this manner would be to overlook the many thousands of persons in other walks of life who suffered grievous and irreplaceable losses in their fortunes because of the circumstances of war. For most of such persons no govern
mental relief has been or could reasonably be afforded, for such conditions cannot reasonably be considered by thinking persons the responsiblity of the Government to restore.
"As to veterans of World War II, however, the committee could perceive a reasonable and logical distinction, for in these cases the circumstances of the removal of the patentees from the scenes of their livelihoods and occupations, and the involuntary (in most cases) nature of their having military or naval duties thrust upon them, effectively deprived them of their freedom to exploit their patent rights even if materials, etc., had been available. Of course, there were many whose patents produced a steady and undiminished income during their absence in service, but these the bill does not benefit. The bill is not intended to deny relief to veterans merely upon showing that they would not have been able to secure materials for the manufacture of the inventions even if they had not been in the service. The bill calls for no additional appropriations, and in some measure makes restitution for the sacrifices of wartime service."
Under this public law, as near as I have been able to discover, contrary to the action taken after World War I when only eight applications for extension were made, at least several hundred have been made by veterans of World War II, indicating very clearly that a great many patent owners were not able to exploit their patents, and because they were veterans they are receiving the advantage of an extension for double the time they were in service. The defect in this law, however, lies in the fact that after June 30, 1951, no more applications will be accepted, and this will certainly work a hardship on many, many veterans who have not as yet even discovered that Public Law 598 exists or that they must apply to obtain extensions of their patents under the same prior to June 30, 1951.
It was urged at the committee hearings on the above law that its restrictions as to time and other qualifications tended to reduce it to class legislation, and that conditions might arise which would prove its inadequacies very shortly. These conditions have already arisen. On December 16, 1950, the President proclaimed a national emergency and the manufacture and sale of thousands of patented items was immediately restricted and is now completely curtailed. In addition, due to the Korean War, which started in June 1950 and is still continuing, many present servicemen who could not apply under Public Law 598 are now being deprived of the right to exploit their patents and inventions, and with the continued conscription of men into military service, a continuing situation exists which now deprives servicemen of rights similar to those granted to persons who were in service only during the period from December 7, 1941, to September 2, 1945.
It was urged at the hearings on the above public law that other bills similar to H. R. 323 be given favorable consideration. The broad reasoning advanced was that patents being granted for a 17-year period and being in the nature of a contract between the Government and the inventor, should not be breached by some action of the Government in reducing the effective length of the term of the patent, nor should the term of the patent be unreasonably curtailed by circumstances beyond the control of the owner of the same.
Patents are granted for a term of 17 years. This grant in effect gives the inventor the right to prevent anyone else from manufacturing, using or selling the patented article during the period of the patent. Or, stated in a different way, the inventor alone has the right under this patent grant to manufacture, use and sell the patented article. Others can only, make, use or sell the patented article by securing a license from the inventor or patent owner by buying this right.
During normal times a person has the right to manufacture and sell anything he desires. This right, if he otherwise remains within the law, is inviolate. So, in normal times an inventor or patent owner has the exclusive right under the patent to manufacture, use or sell the patented article. But what has happened to these rights since the beginning of the twentieth century? For a period of years during World War I when the industrial strength of the country was directed toward the production of war material, inventors' rights were definitely curtailed by this action.
Following the national emergency proclaimed by President Roosevelt in 1933, when manufacture and exploitation was reduced by reason of the pumping of vast sums of borrowed money into Federal projects such as WPA, CCC, PWA, etc., curtailment of the effective life of patents again happened.
Then commencing with the beginning of World War II in Europe in 1938, in a concentration of the Government of the United States and its industries on the manufacture of war material, the effective length of many thousands of patents was again greatly curtailed.
We are all familiar with the conditions that existed during our active participation in World War II. The inability to obtain such elementary household commodities as washing machines, radios, refrigerators, alarm clocks, and even rubber bands, paper clips, and Kleenex, is still fresh in the memory of all of us, and after a few years return to a normal market, we are again back in a condition of national emergency and have geared our production and resources to a wartime basis. How is the normal patent owner ever going to be able to secure the rights granted to him by contract when he obtained the patent, that is, the right to exploit his own invention for a period of 17 years, under such conditions? The simple fact is that the active life of the patent is cut down from 17 years to a much lesser period, and thus the inventor or patent owner receives much less than his contract with the Government provided. A patentee who received a patent last December has no means of knowing if he will ever be able to exploit the same or not, especially if it relates to an invention directed to peacetime articles or to promotion of the arts and sciences (excluding instruments of destruction). We certainly have no way of knowing when the present national emergency may end or when the war in Korea may be over or when one may start somewhere else.
The simplest way to secure to inventors and patent owners the full extent of their patent grant is to enact into law H. R. 323 or a similar bill. This would provide the vehicle by which an inventor or a patent owner who has been deprived of a part of his 17-year grant can secure an extension for the length of time which the original grant provided. This detracts from no one's rights, does not require an appropriation of money to be made by the Congress, but rather makes restitution of a right or remedies a broken condition of the contract which the inventor has with the Government.
In an article written by Capt. George N. Robillard, USN, patent counsel for the Navy, Assistant Chief of Naval Research for Patents, with Beverly Smith, Washington editor of the Saturday Evening Post, appearing in the Saturday Evening Post of June 9, 1951, the heading reads as follows:
ARE WE STIFLING THE INVENTORS?
"A submarine? An atom bomb? Radar? Crackpot notions, we once sneered. We still brush off-and rarely reward—the lonely genius puttering in a cellar workshop. No; says the Navy's patent shark, we must give inventors a fair chance if we want to survive."
And the article starts with this potent statement:
"America must invent or die. It is as simple as that. We and our allies are engaged in a struggle, the end of which no man can foresee, against the Communist powers dominated by the Soviet Union. To counterbalance their greater manpower we have, for the time being, technical superiority in land, sea, air, and atomic weapons. So far, this has deterred the men in the Kremlin from attempting a world-wide war of conquest. If our technical superiority is ever lost or even seriously narrowed down, we may find ourselves in a conflict which will destroy civilization as we know it."
The writer goes on in the article to point out how weak is our system of stimulating, evaluating, and rewarding inventions. While the article dwells at length and principally upon military inventions, these are in the main, of course, derived from our ordinary everyday mechanical and electrical inventions, which are stimulated and promoted only in a vigorous and healthy economy. And this type of economy nurtured by proper stimulation and reward for invention requires the incentive for an inventor as he knows it. That is the right to a patent for 17 years, and the right to enjoy the same for 17 years.
Recently introduced bills, including H. R. 3231 and H. R. 4054, while both directed to attempts to remedy the situation which exists, both fall far short of accomplishing this means except for certain groups or during certain specific periods. H. R. 4054 provides for the extension of terms of patents not capable of full utilization by reason of Government restrictions in World War II, from a period beginning May 27, 1941, through November 4, 1945.
H. R. 3231 is generally similar but provides for the extension of the terms of patents not fully utilized by reason of Government restriction during World War II and during the national emergency proclaimed by the President December
16, 1950. Both of these bills fall short of providing a vehicle under which any and all persons who had been injured could apply for extension. In the case of H. R. 3231, further legislation would be necessary eventually to determine when the period beginning December 16, 1950, would end.
On the other hand, H. R. 323 is not limited in any of the ways that the other two bills are. Nor need further legislation be enacted to carry out the law if H. R. 323 is passed. This bill would also provide a vehicle by which veterans of the present Korean War, veterans during the period between the end of the war and today, and any and all patent owners could apply for and obtain extensions.
The conditions upon which the extensions would be obtained are clearly set forth and the determination of the sufficiency of the same could be with the Commissioner of Patents who is presently functioning in the same capacity in connection with petitions for extensions filed by veterans.
It has been argued in the past that to place such wide discretionary powers in the hands of the Commissioner of Patents might be impractical or dangerous. However, it is neither. The Commissioner's discretion is always subject to review by the Court of Customs and Patent Appeals, and in any event, even after a patent extension is granted by the Commissioner and the owner brings suit upon the same, the United States district courts in the final analysis determine both the validity of such an extended patent and the measure of damages if any are to be allowed. Thus the final determination rests in the hands of the United States district courts.
The committees who have considered these patent-extension bills in the past have approached the problem from the standpoint of whether or not to "give" relief to patent owners "who suffered losses by reason of being unable through shortages or materials or other reasons ** * to exploit their patent rights." They have discussed "government relief" as the basis for patent-extension legislation.
The true basis for enacting patent-extension legislation should be on the grounds of redress for breach of contract-voluntary or involuntary—but nevertheless breach of contract. The patent grant recites a 17-year term and the Government's signature is on that contract in the person of the Commissioner of Patents. When by war, national emergency, or other unforeseen happenings, curtailment of the 17-year continuous grant is interrupted, provision should be made to extend the term to make up for the period of curtailment. Any other approach is a breach of the contract. The right approach is by a public law under which patents can be extended. H. R. 323 is such a bill and its passage would complete the Government's performance under its patent contract.
HARRY H. HITZEMAN.
Mr. HITZEMAN. I am also an inventor. Since I have inserted my statement in the record in favor of H. R. 323, and have generally outlined my views, I will not take up too much of your time.
I would like to make a few statements in rebuttal of what Mr. Hoxie said, and to clarify some of the things that he said.
First, there is definitely a precedent for an extension law. About a hundred years ago there was a law on our books that simply provided that at the end of the term of 14 years, if a patentee, or a patent owner, had not gotten any return out of it, that was sufficient to get an automatic extension of 7 years?
Mr. WILLIS. Was that because of a war, or do you remember?
Mr. WILLIS. Was there a depression? What is the historical back
ground of the statute?
Mr. HITZEMAN. I do not believe that there was.
Mr. WILLIS. I am very much interested in that.
Mr. HITZEMAN. It was about a hundred years ago, in the 1850's.
It was a national law.
Mr. BRYSON. You do not go into that in your statement?
Mr. HITZEMAN. No, sir. I will be glad to clarify that with an additional statement.