Section 251 raises the false marking penalty from $100 and costs to a flat $500. This change is believed to be desirable in that it will aid the policing of false marking. With the present law the informant bringing a qui tam action rarely receives more than $50, which does not pay him for his time and trouble.

Section 252 (Service and notice; nonresident patentee) provides that a nonresident patentee may designate by notice to the Patent Office a person within the United States on whom process or notice may be served and that in lieu of such designation such notice or process may be served upon the Commissioner. This is a new section. It does not represent codification, but the Department has indicated that it is in favor of this.

The department understands that this provision has been added for the benefit of American citizens desiring to bring action against foreign owners of United States patents. At the present time American manufacturers threatened by charges of infringement of United States patents by persons resident abroad are especially handicapped by inability to bring suit for declaratory judgment. Most foreign countries in their patent laws require foreign owners of patents issued by them to have resident agents upon whom service may be made.

Except for the specific sections to which objections or questions have been raised, the Department of Justice is not opposed to H. R. 3760.

Mr. BRYSON. Thank you, Mr. Brown.

Mr. Lanham, we are always pleased to have you present.
Would you

like to make some comment or statement that would be helpful and constructive here?

STATEMENT OF FRITZ G. LANHAM, FORMER REPRESENTATIVE FROM TEXAS

Mr. LANHAM. Mr. Chairman and members of the committee: I had not intended to testify. I am not a patent attorney. Mr. BRYSON. You are a patent authority, though.

Mr. LANHAM. I had the pleasure of serving for about a quarter of a century on the Committee of Patents of the House of Representatives. I thus acquired some familiarity with the structure of our patent system and also in appearances which I have made before this committee since my voluntary retirement from the Congress after 28 years of service.

I am and have been since my retirement a representative of the National Patent Council, which is a nonprofit organization of smaller manufacturers primarily interested in the education of the public with reference to the importance of our patent system and the fact that patents make jobs and promote the development of our economy. However, that council is not a patent law association. Because of their interest in its policy many patent attorneys are connected with it as associates.

It is to be assumed that there is some diversity of opinion and sentiment among those patent attorneys who are associates with reference to certain provisions of the pending proposal, just as we have seen outcropping here in the testimony some differences of opinion concerning special sections. Consequently my appearance is merely as an individual in compliance with the request of the chairman just made and not as a representative of the National Patent Council.

This bill seeks to codify provisions with reference to patents. Certainly a codification measure is desirable, but in my judgment, what is placed in the law codifying patent provisions should be, insofar as possible, noncontroversial. Certain controversies have arisen in the discussion thus far and likely further differences of opinion as to a few provisions will be presented by other witnesses. There are one or two such provisions in particular which I recall have been the subject matter of hearings before this subcommittee heretofore, notably perhaps in the last Congress, one having to do with the test of invention or patentability and the other having to do with contributory infringement.

I recall that among others I testified on each of those matters before the subcommittee in the Eighty-first Congress. It appears that they are still somewhat controversial.

Would it be advisable, therefore, in view of the fact that this bill seeks the codification of the patent laws, to eliminate one or two controversial provisions from present consideration and have separate consideration of each in proper and appropriate bills which would permit much more detailed and thoughtful study of the matters involved than would be possible in such testimony as will be given before this subcommittee? That would not prevent codification of provisions which could be agreed upon.

I recall, for instance, in my long service on the Committee on Patents, I was requested to endeavor to get an enactment with reference to trademarks that would be more in keeping with modern conditions and practices in view of the fact that the old laws of 1905 and 1920 had become somewhat obsolete and not applicable to the business conditions and practices today. Though I have now, and had then, no personal interest in any trade-mark except as a consumer, I undertook that task. It was quite a comprehensive undertaking, technical in many aspects just as the consideration of this measure involves many technical considerations.

I labored as the chairman of a subcommittee with different personnel in each Congress through four different Congresses to get the final enactment of the trade-mark law now on the statute books. When we first began the consideration of that subject matter, those who appeared were, speaking figuratively, at one another's throats. There was great diversity of opinion concerning provisions that should be incorporated in such a law.

So I served perhaps more or less, as a mediator and conciliator and tried to get the groups together upon something with reference to which they could agree.

Finally, after 4 years of such effort and the introduction of several different bills with modifications which had been suggested, we got the enactment, with the terms of which practically all of those in original disagreement found themselves quite in conformity and accord.

We took up those bills, section by section, and heard testimony upon each section, in order that we might have all of the facts and information upon which we could base our final judgment.

Here are many provisions of this bill, some of them very technical as evidenced by the testimony thus far adduced. I believe by proper conferences practically all of the differences can be settled and the codification effected. I merely inquire as a policy of procedure whether

it would be wise just now to include one or two highly controversial provisions in the codification or leave them for early consideration in separate bills for more extended and detailed discussion and study.

We are all anxious to have a proper codification of the patent laws, and the coordinating committee has labored diligently with such a purpose. We are all specially anxious to have them properly protective of the patentee, because upon the ingenuity of this country through the incentive of our patent system we have attained the progress and prosperity which has made us the first Nation of the world. Let us keep so and let us be very sure that whatever we enact will retain that incentive and inspire these workers of America, who give us so many things useful for our progress, to carry on their laudable undertakings. It is very interesting, in that connection, to note that many and perhaps most of our very useful inventions which have greatly accelerated our progress and our prosperity have come from most humble sources. Leonardo da Vinci was in a way an authority on aviation, but they had no internal combustion motor in his day and there was no practical application of his ideas.

Langley and others worked with aviation, and finally two bicycle dealers down in North Carolina disclosed that it was practical. Instance after instance of a comparable nature could be cited with reference to so many of our most important discoveries.

Let us be very sure that whatever we enact is not only going to continue the incentive of humble people as well as others to promote our progress, but let us see to it also that in their discoveries they are protected, as has been intended in this Government ever since we first had our patent law, largely through the efforts and the activity of Thomas Jefferson.

These random throughts may not be helpful to you, and they are purely my individual opinions. Although I have no patent and I have made no discovery, I doubt if anyone, by reason of my long service on a similar committee and the realization of the importance of protecting our patent system, has any gerater interest in seeing proper legislation continue so that that incentive will continue which will make for our greater progress and prosperity. Let us hope that to this end proper codification may be had as promptly as possible.

Mr. BRYSON. We are much obliged to you.

I am sure we are starting toward the same objective. I believe the record will disclose this particular committee has sought to give ample opportunity and study to any controversial issue that we now consider or we may consider.

You know we have distributed literally thousands of the proposed revision and codification to every possible agency. These representatives from these well established reputable organizations from every point throughout the country are feeding us with their suggestions and thoughts. In these hearings here we are going to give everyone an opportunity to be fully heard, whether he favors or opposes. There will be no disposition to shorten these hearings at all.

Mr. LANHAM. I appreciate that, Mr. Chairman. I am well advised concerning the fairness of this committee. I am well advised also concerning its unremitting activity to bring about the very objectives in which you and I, and I think all of the loyal American citizens, are properly interested. And please understand that I am not opposing codification and that I have merely offered a suggestion with refer

ence to procedure in the consideration of one or two controversial issues.

Mr. ROGERS. You recognize that the revision and the old Committee on Patents is all accumulated here in this subcommittee under the reorganization?

Mr. LANHAM. I appreciate that.

Mr. ROGERS. Do you think, due to the fact we have this controversy existing as to what constitutes the law makes it almost an insurmountable task to recodify the law?

Mr. LANHAM. I think most of the provisions in this bill before you can be codified.

I would not appear as being opposed to codification of patent laws. I think we should codify what is not highly controversial and what through conferences can be agreed upon.

Mr. ROGERS. Have you, in the study of this proposed bill, any particular objection to any particular provision that you feel should not go in there without a thorough study and a different bill introduced to take its course through Congress?

Mr. LANHAM. Let me repeat, I am not a patent attorney. I am not versed in all of these technical provisions. I feel that with reference to practically all of the provisions of this bill some agreement can be reached from the standpoint of codification. On one or two controversial provisions I think the action should assure a basis of clarity for judicial interpretation and the protection of the discoverers of useful and novel inventions. In other words, the code concerning them should be both fair and definite.

Mr. ROGERS. In other words, you feel, to take the noncontroversial ones, make that the codified bill and then the controvsrsial ones could be considered separately?

Mr. LANHAM. They could be enacted as amendments to the codification and in that way perhaps we would get a better final result. There are several provisions here concerning which there is some slight controversy. I think those differences can be ironed out and most of the bill could thus be codified without any particular difficulty. Mr. BRYSON. Thank you, sir.

Mr. Federico, will you come around, please?

STATEMENT OF P. J. FEDERICO, UNITED STATES PATENT OFFICE

Mr. BRYSON. Mr. Federico, before you begin, may I ask: Has the Department of Commerce made a formal report on the pending bill? Mr. FEDERICO. The Department of Commerce has made a report, but I am sorry to say we have not yet got it back from the Bureau of the Budget. We expect it today or tomorrow and will file it with the committee. The report will speak for itself. If I may speak before the report comes in, it raises no special objections and has one or two suggestions.

Mr. BRYSON. It goes along the general lines of the other departments?

Mr. FEDERICO. Yes.

Mr. BRYSON. Favoring the enactment of the bill preferably with certain amendments?

Mr. FEDERICO. In general; yes.

Mr. BRYSON. But favoring the enactment of the general principle? Mr. FEDERICO. Yes.

Mr. BRYSON. Would you care to address yourself or make any statement or comments on the positions taken by the different department representatives here today or who testified yesterday, or would you care to make any statement on your own observations?

If so, you may proceed.

Mr. FEDERICO. With respect to the reports from the other departments, I am sorry to say I do not feel in a position to comment on their specific suggestions for the reason that most o fthem I have seen today for the first time. The Department has not had the opportunity to make a report on them.

I would like to state generally that the reports of the three departments that have testified orally strike me that some of their proposals are things that none of the other departments would have any special objection to. A large number of them relate to matters of language and clarification which could be straightened out by some slight discussion. Possibly all of the reports of the departments on all points, except one or two, might be brought into agreement between the departments. I do not feel that I can comment on any of the specific provisions.

Mr. BRYSON. Without giving further study to them?

Mr. FEDERICO. They would have to be studied.

Shall I continue with the survey of the structure of the bill?

Mr. BRYSON. Yes.

Mr. FEDERICO. As I stated yesterday, chapter I of the bill collects the provisions relating to the Patent Office. Chapter II collects the provisions relating to the requirements for obtaining a patent and the procedure in obtaining a patent.

Chapter III deals with the patent itself after it has been granted. The first group of sections relate to correcting and amending a patent, which is a necessary thing.

Sections 201 and 202 are a development of the present statute relating to what are called reissues. Under certain circumstances the patentee may obtain a new patent to replace the old one to correct various defects that he may have discovered in the patent. These two sections together replace the present one, making a number of clarifications with a few additions of further developments in the subject which I do not believe need to be gone into at the moment. Section 203 relates to another form of correction of a patent known as the disclaimer. The patentee files a paper in the Office which is recorded. He disclaims certain things from the scope of his patent or disclaims certain claims. This subject of disclaimers in the present law has resulted in a great deal of confusion and uncertainty in certain situations, which are almost ridiculous at times. Consequently, the bill in two sections-203 and 248-has introduced certain changes relating to disclaimers. One of these changes is that only a whole claim can be disclaimed. A claim cannot be rewritten by filing a paper in the Patent Office. Only a whole claim can be disclaimed. The second change relates to the situation when a patent has two or more claims and one of them may be discovered to be invalid.

Under the existing law, there is a provision in the statute that says that the invalid claim must be disclaimed without unreasonable