render the fabric thus finished or treated fire-, water-, mildew and water-resistant, so as to make the treated fabric in all respects suitable for outdoor use in all climates. These finishes also prolong the life of fabrics treated therewith, when used outdoors, and the properties imparted to cotton duck and other fabrics by these finishes make the use of such duck and other fabrics much safer, more economical, and more satisfactory, particularly by the United States military forces for tents, tarpaulins, gun covers, life preservers, camouflage fabrics, and numerous other materials.

On February 20, 1943, the Hooper Co. executed and delivered an agreement, bearing the same date, wherein the Hooper Co. granted to the United States a royalty-free license to finish, or to have finished for it by contractors licensed by the Hooper Co., and to use or sell, any fabrics finished or processed for governmental purposes under any of the Hooper Co.'s patents, the Hooper Co. further agreeing to grant a similar royalty-free license to any contractor manufacturing goods for the Government, if such contractor applied to the Hooper Co. for such a license. These licenses were to continue "for the duration of the war and 6 months thereafter."

The United States, and contractors producing goods for the United States which required the use of the Hooper Co.'s patents, made substantial use of the said patents during the years 1943, 1944, and 1945, during which years the Hooper Co. was deprived of the beneficial use and enjoyment of said patents.

Moreover, the Government now contends that World War II has not been terminated, and that accordingly, the Hooper Co.'s agreement of February 20, 1943, will continue in effect until the war has been terminated and for 6 months thereafter. Accordingly, the Government, and contractors producing goods for the Government, are continuing to use the Hooper Co.'s patents, and made very substantial use of the said patents in 1950 and 1951, and will probably continue to do so during the period of rearmament.

In these circumstances, the Hooper Co. submits that it is justly entitled to have the lives of its patents extended for a period equal to the period during which the Government and Government contractors have used said patents, royaltyfree, and that legislation should be enacted under which the Hooper Co., and any company similarly situated could obtain such extension of its patent or patents.

I. Brief history of William E. Hooper & Sons Co.

William E. Hooper & Sons Co. is a Maryland corporation having its executive offices at Juniper and Cherry Streets, Philadelphia 7, Pa., its mill or factory being located in Woodberry, Baltimore, Md. Although the Hooper Co. was incorporated in 1905, the company is the continuation of a business which was established in 1800, and the management and ownership of the company has continued in the Hooper family for six generations.

For many years, the business of the Hooper Co. has been conducted in two departments, the manufacturing department and the finishing department. The business of the manufacturing department is the manufacture, including spinning and weaving, of cotton duck to be used for awnings, tents, tarpaulins, and the like, and other heavy cotton fabrics, such as filter twills for filtration of chemicals, sugar, oil, and other materials; felts for use in the manufacture of paper; and rope, sash cord, and other heavy goods.

In its finishing department, the Hooper Co. manufacturers certain patented "finishes" or mixtures of chemical compounds, which, when properly applied to cotton duck as a finish, impregnate the duck, will not wash out, and render the cotton duck thus finished or treated fire-, water-, mildew- and weather-resistant, so as to make the treated duck in all respects suitable for outdoor use in all climates. In addition to these properties, the finish prolongs the life of cotton duck used outdoors, in some cases to about three times the life of untreated duck. These compounds, and cotton duck finished therewith, are sold by the Hooper Co. under the trade name "Fire Chief." The properties imparted to cotton duck and other fabrics by the Hooper Co.'s compound make the use of such duck and other fabrics much safer, more economical, and more satisfactory by industrial, commercial, and domestic users of such products, and by the United States military forces for tents, tarpaulins, gun covers, life preservers, camouflage fabrics, and numerous other materials.

87811-51-ser. 10

II. The Hooper Co.'s patents

On February 20, 1943, the Hooper Co. was, and it still is, the owner of the following patents covering the invention of the Hooper Co.'s Fire Chief finish or compound:

On February 20, 1943, the Hooper Co.'s investment in the above patents, including research and development costs, has been conservatively computed from the company's books and records at approximately $500,000.

III. On February 20, 1943 the Hooper Co. gave the United States a royalty-free license to use all of its patents, "for the duration of the war and 6 months thereafter"

On or about February 20, 1943, representatives of the office of the Quartermaster General called upon certain officers of the Hooper Co. and stated that they wanted to negotiate an agreement with the Hooper Co. wherein the Hooper Co. would grant the United States, and contractors producing goods for the United States which required the use of a finish or compound covered by the Hooper Co.'s patents, a license by the Hooper Co. to use the invention covered by the Hooper Co.'s patents. These representatives of the office of the Quartermaster General indicated that the United States would be willing to pay the Hooper Co. a royalty for such a license, but Mr. Robert P. Hooper, president and majority stockholder of the Hooper Co., told them that the Hooper Co. did not want to exact a royalty from the United States, or from contractors producing goods for the United States which required the use of the Hooper Co.'s patents, for the use of said patents in the production of goods or compound for the United States, and that the Hooper Co. would grant the United States, and contractors producing goods for the United States which required the use of the Hooper Co.'s patents, a royalty-free license to use the invention covered by the Hooper Co.'s patents in the production of goods or compound for the United States.

Accordingly, on February 20, 1943, the Hooper Co. executed and delivered a license agreement bearing that date, a true and correct copy of the said agreement being attached hereto and made a part hereof, marked "Exhibit No. 1." The essential provisions of that agreement are as follows:

(a) The Hooper Co. granted to the United States an irrevocable, nonexclusive, royalty-free license to finish, or to have finished for it by contractors licensed by the Hooper Co., and to use or sell, any fire-, water-, mildew-, and water-resistant fabrics finished or processed for governmental purposes under any of the Hooper Co.'s patents.

(b) The Hooper Co. agreed that if the Quartermaster Corps would advise contractors that they must ask the Hooper Co. for the right to use any of the Hooper Co.'s patents, the Hooper Co. would also grant to such contractors a similar royalty-free license.

(c) Both the license granted to the United States, and the licenses which the Hooper Co. agreed to grant to contractors producing goods for the Government, were to continue in force and effect "for the duration of the war and 6 months thereafter."

(d) The Hooper Co. released the Government from any and all claims which the Hooper Co. had against the Government by reason of the Government's particiaption in substantial infringements of the Hooper Co.'s patents prior to the date of the said agreement.

The Hooper Co. received no consideration whatsoever for the royalty-free license agreement dated February 20, 1943, not even the $1 consideration recited therein.

IV. The United States, and contractors producing goods for the United States which required the use of a finish or compound covered by the Hooper Co.'s patents, made substantial use of the Hooper Co.'s patents during the years 1943, 1944, and 1945.

The Hooper Co. does not know, and does not have access to the records from which it could determine, the full extent to which the United States, and contractors producing goods for the United States which required the use of the Hooper Co.'s patents, actually made use of the Hooper Co.'s patents. However, the Hooper Co. does know that these parties did make a very substantial use of the Hooper Co.'s patents in each of the years 1943, 1944, and 1945.

As a matter of fact, the United States, and contractors producing goods for the United States, had begun to make substantial use of the Hooper Co.'s patents in 1942, prior to the royalty-free license agreement of February 20, 1943, which explains why the Government wanted a release of any claims, which the Hooper Co. might have against it for past infringements of the Hooper Co.'s patents, included in the royalty-free license agreement of February 20, 1943, and the Hooper Co. agreed to give, and did give, the Government such a release, thereby waiving a very substantial claim which the Hooper Co. could have asserted against the United States.

The following companies have informed the Hooper Co. that their production of goods for the United States which required the use of the Hooper Co.'s patents for the years 1942-45 was as follows:

In the above table, the production of McGean Chemical Co. and General Printing Ink Co. is given in yards. Actually, however, these companies only produced and sold the finish or compound as such, and the yardage figures quoted for them represents a conversion of their production of the finish or compound into equivalent amounts of yards of treated duck.

It should also be noted that the yardage production of these companies as set forth in the table would range in width from 22 inches to 84 inches per linear yard, and the range in weight would be from about 7 ounces per linear yard to 3.68 pounds per linear yard. However, the Hooper Co. believes that in view of the very large yardages involved, the widths and weights per linear yard would pretty well average out, so that the total production of these companies in yardage represents a reasonably accurate measurement of the linear yardage produced by these companies of average width and weight. The Hooper Co. further believes that the minimum royalty to which it would fairly and reasonably have been entitled to collect from the above manufacturers, if the Hooper Co. had not granted the United States, and the said manufacturers, a royalty-free license to use its patents, would have been 1 cent per yard, and on this basis, the total royalties which the Hooper Co. would have been entitled to receive for each of the years 1942 to 1945, inclusive, would have been the following amounts: 1942, $1,446,227.81; 1943, $835,810.91; 1944, $1,119,839.09; 1945, $1,208,724; total, $4,610,601.81.

Moreover, the Hooper Co. is quite sure that the above royalties, large as they are, are only a part of the royalties which the Hooper Co. would have been entitled to collect for the use of its patents if it had not granted the United States a royalty-free license to use said patents. The eight companies, whose

producion figures are set forth in the above table, are companies which applied to the Hooper Co. for a royalty-free license under the license agreement of February 20, 1943, and these companies voluntarily gave their production figures to the Hooper Co. However, there were many companies which during the years 1942 to 1945, inclusive, were engaged either in the production and sale of a finish or compound covered by the Hooper Co.'s patents, or in the finishing or treatment of cotton duck using a compound covered by the Hooper Co.'s patents, which companies never applied to the Hooper Co. for a royalty-free license to use the Hooper Co.'s patents, and from whom the Hooper Co. has not been able to obtain their production of compound or treated goods during the years involved. In any event, it would seem to be clear that the United States, and contractors producing goods for the United States which required the use of the Hooper Co.'s patents, made very substantial use of the Hooper Co.'s patents during the years 1942 to 1945, inclusive.

V. The United States, and contractors producing goods for the United States which require the use of the Hooper Co.'s patents, are continuing to make substantial use of the Hooper Co.'s patents, taking the position that the "duration" of World War II has not yet ended, and that accordingly, the agreement of February 20, 1943, is still in full force and effect

On or about August 29, 1950, two attorneys in the office of the general counsel for the Office of the Quartermaster General, called upon Mr. Robert P. Hooper president of the Hooper Co., at his office in Philadelphia, Pa., and told Mr. Hooper that the Government was taking the position that the royalty-free license agreement of February 20, 1943, was still in full force and effect, and that accordingly, the Hooper Co. continued to be obligated to grant a royalty-free license to any contractor engaged in producing goods for the United States which required the use of the Hooper Co.'s patents, who applied to the Hooper Co. for such a license. These attorneys further stated that the basis of this position was that the agreement of February 20, 1943, provided that the royalty-free license therein granted to the United States, and the Hooper Co.'s obligation to grant similar licenses to Government contractors, was to continue "for the duration of the war and 6 months thereafter," and that since "the war" was not over, the agreement would continue in full force and effect until "the war" was over, and for 6 months thereafter.

Mr. Hooper told these attorneys that he did not agree with the position taken by the Government; that it was his opinion that "the war" was over on VJ-day, September 2, 1945, if not when hostilities ceased on August 14, 1945; and that accordingly, the agreement of February 20, 1943, expired 6 months thereafter on February 14, 1946, or March 2, 1946. However, Mr. Hooper stated that the question was a legal question which he would refer to counsel.

It is submitted that the position taken by the Government on this question is unfair, unreasonable, arbitrary, and contrary to the law.

In The Girdler Corporation v. Charles Eneu Johnson and Company (D. C. E. D. Pa.) (95 Fed. Supp. 713 (1915)) the plaintiff entered into a contract with the Defense Plant Corporation wherein the plaintiff, being the owner of a patented process for the manufacture of carbon black out of natural gas, gave the Defense Plant Corporation the right to use the said process, and to aid the war effort, the plaintiff agreed to charge a rate for the use of the process which was appreciably below the rate which plaintiff otherwise would have charged, but the contract provided that the lower rate of payment should continue only to the end of the "war period." The end of the "war period" was described in the contract as being 6 months after the date of the "cessation of hostilities" between the United States and Germany and Japan, and at the end of the "war period," the rate to be charged for the use of the process increased considerably.

The plaintiff contended that September 2, 1945, the date Japan formally surrendered, marked the cessation of hostilities, and that the higher royalty payments became effective 6 months after that date. On the other hand, the defendant contended that the cessation of hostilities did not come until the President formally proclaimed the cessation of hostilities of World War II, effective 12 noon, December 31, 1946.

The court sustained the plaintiff's contention, holding that under the contract in question, the cessation of hostilities occurred on September 2, 1945, and in so holding, the court said:

"The problem of the meaning of the clause in the present contract and other similar clauses has come before the courts on numerous occasions. The courts have uniformly held that the terms 'cessation of hostilities,' 'termination of the

war,' 'duration of the war,' 'engaged in war,' and 'acts of war' refer to the end of actual hostilities (Samuels v. United Seamen's Service, 165 F. 2d 409 (9th Cir, 1948); Boston Penny Savings Bank v. Stoneholm, 323 Mass. 662, 83 N. E. 2d 885 (1949); Stinson v. New York Life Ins. Co., 167 F. 2d 233 (D. C. Cir. 1948); Darnall v. Day, 37 N. W. 2d 277, Supreme Court, Iowa, 1949).

"Under these cases, plaintiff might well contend that the cessation of hostilities in World War II came on August 14, 1945, since that is the date when hostilities actually ceased, but it does not press this point.

"Defendant points to the fact that the contract in the present case was executed as an aid to the war effort, and contends that as a contract in which he public was interested it must be construed in a manner different from the construction of an ordinary private contract. It further contends that since the contract involved a matter in which the public was interested the meaning of 'cessation of hostilities' must be construed in accordance with the public proclamation by the President setting forth when the cessation of hostilities occurred. With this contention I do not agree. In 9 Williston on Contracts, section 46, page 65, it is said:

*

66** * * The words of the contracts should be given a reasonable meaning rather than an unreasonable one and a court will endeavor to give a construction most equitable to the parties and which will not give one of them an unfair or unreasonable advantage over the other. * * The same principles of right and justice which prevail between individuals should control in the construction and carrying out of contracts between the Government and individuals (U. S. v. Stage Co., 199 U. S. 414, 50 L. Ed.. 251). A Government contract should be interpreted as are contracts between individuals with a view to ascertaining the intention of the parties and to give it effect accordingly, if it can be done consistently with the terms of the instrument (Hollenbach v. U. S. (233 U. S. 165, 58 L. Ed. 898)). "In United States v. Standard Rice Co. (323 U. S. 106, 111 (1944)), it was said:

666* * * Although there will be exceptions, in general the United States as a contractor must be treated as other contractors under analogous situa tions. When problems of the interpretation of its contracts arise the law of contracts governs. * ** *"

As the numerous cases construing clauses similar to the clause in the present case point out, the ordinary meaning of the words indicates that the parties intended the end of actual hostilities to control the situation. There is nothing in the words of the present contract to indicate that the parties in this case intended otherwise."

The following decisions also support the proposition that the "duration" of World War II came to an end not later than September 2, 1945, the date of Japan's formal surrender, and possibly on August 14, 1945, when the war with Japan ended in popular conception :

G. B. Newton Coal Co. v. Davis (1924) (281 Pa. 74; affirmed (1924) 267. U. S. 292, 45 S. Ct., Rep. 305).

Lefevre v. Healy (1942) (92 N. H. 162; A. 2d 681).

Kaiser v. Hopkins (1936) (6 Cal. 2d 537; 58 P. 2d 1278).

State v. Littleton (1948) (150 Ohio St. 418, 83 N. E. 2d 67).

State v. Listman (1930) (157 Wash. 229, 288 P. 913).

Zinno v. Marsh (1942) (36 N. Y. S. 2d 866).

Scott v. Commissioner of Civil Service (1930) (272 Mass. 237, 172 N. E. 218).

Victory Truck Line v. Railroad Commission (1947) (Texas) (270 S. W. 2d 210). Notwithstanding the clear weight of authority in support of the Hooper Co.'s contention that the "duration" of World War II came to an end not later than September 2, 1945, and that accordingly, the agreement of February 20, 1943, expired 6 months thereafter on March 2, 1946, and notwithstanding the Hooper Co.'s voluntary and substantial contribution to the war effort during the period of World War II, the Government, far from being appreciative of the Hooper Co.'s cooperation, has now adopted an attitude toward the Hooper Co. which can only be described as vindictive, or as being in the nature of a persecution. The Hooper Co. believes that this statement is not unfair or exaggerated by reason of the following facts:

The Request and Proposal (Negotiated Procurement) forms currently being issued by the New York Quartermaster Procurement Agency, United States Army, 111 East Sixteenth Street, New York 3, N. Y., have annexed thereto