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tion is used or likely to be used by or for the Government *** The corresponding language of the present law (35 U. S. C. 45) requires certification that the "invention is used or liable to be used in the public interest." This change in language may be significant to the operation of this Department.

Much of the Department's research is intended primarily for advancing agriculture and other industries, and use of a resulting invention by or for the Government is incidental. It is the policy of the Department to patent such inventions with dedication of the patent rights to the public or assignment to the Government, thus to assure that the results of the research for which the public has paid will inure to the benefit of the public; that is, patents are obtained as a safeguard to prevent unwarranted patenting by others. It is customary to file the application for such an invention under the nonfee act certifying that the invention is "used or liable to be used in the public interest," without regard to direct use by or for the Government.

If section 221 of H. R. 3760 passes in its present form and is construed to be limited to inventions used or likely to be used by or for the Government itself, as, for example, in procurement of devices including the invention, it may result in removing many of the Department's inventions from the benefits of the nonfee act.

This Department is opposed to the proposed change. There is as much or more reason to place an application under the nonfee act when the entire domestic patent rights are dedicated to the public or assigned to the Government as when merely a license in the invention is given the Government for its own use.

The payment of Patent Office fees by the Department on these applications would, of course, be possible. However, there is no advantage to the Government in doing this, but a considerable disadvantage. Payment of fees from one department to another involves a cumbersome procedure. It includes costly details of operation and is time consuming. Applications deposited in the Patent Office may lie for several weeks waiting for completion of the operation of making the payment. This delay in obtaining a filing date may result in valuable rights properly belonging to the Government or the public being acquired by private parties.

We wish to call attention to our recommendations of June 1, 1950, in which it was indicated that this Department acquires some patent rights to inventions from persons who are not Government employees; as, for example, rights acquired by virtue of a research contract, and that it would be desirable for applications for such inventions to be included under the nonfee act. To this end we recommend that section 221 of the bill be amended to read as follows:

"The Commissioner may grant, subject to the requirements of law, to any officer, enlisted man, or employee of the Government, except officials and employees of the Patent Office, a patent without the payment of any fee, when the head of a Department or agency certifies that the invention described in the patent application is used or liable to be used in the public interest and the applicant in his application states that the invention may be manufactured and used by or for the Government for governmental purposes without the payment to him of any royalty thereon, which stipulation shall be included in the patent, or to any person who assigns the domestic patent rights for an invention to the Government or dedicates such rights to the public, when the head of a department or agency certifies that the invention was made wholly or partially at Government expense."

We again recommend that the act be amended to read as above set forth. The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely,

K. T. HUTCHINSON,

Assistant Secretary.

Mr. CRUMPACKER. This issuance of patents without fees, has that been in the law for some time?

Mr. FRACKER. Since 1883, approximately 68 or 70 years ago.

Mr. CRUMPACKER. When you use the term "in the public interest," would it not be a fair statement to say in the general sense that any really worth-while patent is issued in the public interest? Is that not a pretty broad term?

Mr. FRACKER. I suppose there are patents that are issued that benefit either the inventor or the assignee more than they do the public. In the case of the Department of Agriculture, the purposes for which the Department was established would be our basis for determining whether inventions that come up in our regular work would be in the public interest.

Mr. CRUMPACKER. I presume the fees charged by the Patent Office are scaled primarily just to pay their expenses of operation, are they not?

Mr. FRACKER. I am not familiar with how they are scaled.

Mr. BRYSON. We have that.

Mr. CRUMPACKER. What I am thinking is, in the interest of more orderly governmental accounting so that it will be easier, particularly for a Congressman looking at the appropriations bills, to know where the money is being spent and why, would it not be more appropriate to let these other Government agencies pay the normal fees, irrespective of what the purpose of the patent is, and keep the Patent Office on a self-sustaining basis rather than have what you might call subsidy payments covered up in the Patent Office appropriation? I think, in the interest of arranging your bookkeeping so that you can see where the money goes and for what purpose, it would be more proper even though the Government is merely taking money out of one pocket and putting it in another. Then would it not be better to eliminate this provision entirely and merely have the Government departments pay the normal fees?

Mr. FRACKER. The financial effect on the Government is the same either way.

Mr. CRUMPACKER. I can see that. It is the same number of dollars either way, but it is a matter of bookkeeping.

Mr. FRACKER. The making of those transfers has two disadvantages the clerical cost within the Government and the delay in certain cases while payment is going through, which would affect the processing of the patent. Otherwise the matter is one for determination of general Government policy.

Mr. CRUMPACKER. I can recognize those two objections to doing it that way. I would think, however, that you would probably have a fairly steady flow of this type of application through your department. That is, year in and year out there would be about the same number of patents, something you could anticipate in the budget request. Is that right?

Mr. FRACKER. The department applies for patents on inventions in numbers approximating about 100 a year, varying above and below that by 20 or 30 percent perhaps.

Mr. BRYSON. Thank you, Dr. Fracker.

We will now hear from Mr. Edward R. Walton.

STATEMENT OF EDWARD R. WALTON, JR., REPRESENTING THE DISTRICT BAR ASSOCIATION FOR THE DISTRICT OF COLUMBIA

Mr. WALTON. Mr. Chairman and members, I am Edward R. Walton, Jr., a member of the bar of the District of Columbia and also chairman of its patent committee this year. I am here representing the Bar Association for the District of Columbia.

BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA,
Washington, D. C., June 12, 1951.

EDWARD R. WALTON, Esq.,

Chairman, Committee on Patent Law,

Munsey Building, Washington 4, D. C.

DEAR ED: The board of directors, after full consideration of the final report of the patent law committee, which you personally presented to the board at its meeting on June 7, upon motion duly made, seconded, and carried:

(1) Approved the recommendation of your committee and authorized the chairman or other member duly designated by the committee to appear before the appropriate committees of Congress to urge the passage of H. R. 3760, with proposed amendments, favored by the committee.

(2) Approved the balance of the report with an expression of appreciation to the committee for the excellent work done during the past year. With kindest regards, Sincerely yours,

JUSTIN L. EDGERTON, Secretary.

Our committee studied H. R. 3760 very carefully, particularly in view of the amendments that were proposed by the so-called coordinating committee. The only way I have to refer to them is by date of May 22. I suppose your committee knows what they refer to. This study was reported to the association of the District of Columbia and was approved by that association.

We recommend the passage of H. R. 3760 so amended. Although there were a number of other questions that arose, our association felt the present bill represented a very large area of agreement between the patent lawyers and would probably be as large an area of agreement that could be expected at this time. Therefore, we would like to see its passage, particularly with those amendments.

Thank you, sir.

Mr. BRYSON. Thank you, sir.

We would like to offer for the record at this point a statement from the State Department dated June 13, 1951, a statement from the Chamber of Commerce of the State of New York in which they recommended passage of the bill dated June 7, 1951, and a telegram from the Seattle Patent Law Association recommending the passage of the bill, said telegram being dated June 13, 1951. (The documents referred to follow :)

Hon. JOSEPH R. BRYSON,

DEPARTMENT OF STATE,
Washington, June 13, 1951.

Chairman, Subcommittee No. 3, Committee on the Judiciary, House of Representatives.

MY DEAR MR. BRYSON: Reference is made to your letter of April 30, 1951, transmitting a copy of H. R. 3760, to revise and codify the laws relating to patents and the Patent Office, and to enact into law title 35 of the United States Code entitled "Patents."

The Department understands that H. R. 3760 is essentially a codification of existing laws and involves no major changes in patent legislation. There are, however, a few minor modifications proposed in H. R. 3760 which have some bearing on foreign relations. Specific comments of the Department of State on these modifications are as follows:

1. Section 102, "Conditions for patentability."-Subsection (d) of this section will operate to the advantage of foreign nationals applying for United States patents as compared with provisions of existing law. Under the present law if a foreign patent is issued before a United States patent on the same invention and the foreign application was filed more than a year prior to the United States application, a United States patent cannot be secured. Under the new provision a patent may, nonetheless, be secured provided the application is filed in the United States prior to issuance of a patent in a foreign country.

Since the existing law appears unnecessarily harsh and United States nationals do not face a similar disability in most foreign jurisdictions, the Department fully supports this modification.

2. Section 119, "Right of priority based on foreign application."-This section adds a new requirement to the patent law by providing that no application or patent shall be entitled to priority based on a foreign application unless a claim for such right and a certified copy of the original foreign application are filed with the Patent Office. It also provides that the Commissioner may require an English translation and such other information he deems necessary. It is understood that these requirements are desired by the Patent Office for administrative reasons and that they are no more rigid than requirements in many foreign countries.

3. Section 232, "Temporary presence in the United States."-This section provides that no patent shall prevent the use of an invention in any ship, vessel, aircraft, or land vehicle of another country temporarily entering the United States. This provision accords with the requirements of article 5 of the International Convention for the Protection of Industrial Property. Since the United States is a party to this convention, the Department regards it as desirable that this provision be written into our domestic patent law.

4. Section 252, "Service and notice; nonresident patentee."-This section 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. The Department understands that this provision has been added for the benefit of American residents 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.

The Department has no objections to any of these modifications or to enactment of the bill as drafted.

The Department appreciates the invitation to have a representative present at the hearings on this bill. However, in view of the technical and legal nature of the modifications, and apparent absence of any controversial problems relating to foreign affairs, the Department does not believe that it could make any material addition to the testimony of the Patent Office. The Department would, of course, be glad to send a representative should your committee desire a further expression of the Department's views on any problem presented by the proposed legislation.

The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this report.

Sincerely yours,

BEN H. BROWN, Jr.,

Acting Assistant Secretary for Congressional Relations,
(For the Secretary of State).

CHAMBER OF COMMERCE OF THE STATE OF NEW YORK

At the regular monthly meeting of the Chamber of Commerce of the State of New York held June 7, 1951, the following resolutions and report presented by its committee on law reform were unanimously adopted:

PROPOSED REVISION OF PATENT LAWS

To the Chamber of Commerce:

The committee on law revision offers the following:

The last general revision of our patent laws was the act of July 8, 1870, which was enacted as part of a program to revise and consolidate all the laws of the United States.

The present patent law, as set out in title 35 of the United States Code, is, therefore, essentially the act of 1870, with subsequent amendments.

86988-51-ser. 9- 7

As orginally compiled and published, the United States Code was not enacted as law but only prima facie evidence of the law. Consequently, the Congress from time to time, has undertaken to revise and enact various titles of the code. During the past several years, there have been substantial efforts regarding the revision and enactment of title 35, Patents.

On July 17, 1950, a bill to revise and codify the patent statutes was introduced in the House of Representatives. It was drafted by a subcommittee of the House Judiciary Committee, after a considerable study of all congressional acts relating to patents, which had been passed since the early 1870's. Generally known as the Bryson bill, the measure derived its name from the chairman of the subcommittee, Joseph R. Bryson (D), South Carolina.

This 1950 measure not only undertook to revise, arrange, and consolidate the various patent acts; but also endeavored to present various amendments of substance.

Following the introduction of the measure, numerous suggestions with respect to it were made by patent-law associations and other technically competent private groups; and these suggestions were subsequently coordinated by a committee appointed by the National Council of Patent-Law Associations.

The result is a new Bryson bill, H. R. 3760, introduced on April 18, 1951, containing most of the suggestions made by the coordinating committee of the National Council of Patent-Law Associations.

Like its predecessor, the new bill has the dual objective of revising and consolidating existing laws, and of offering certain substantive amendments. In its consideration of the currently proposed legislation, the chamber's committee on law reform readily concluded that the first objective i. e., the revision and consolidation of existing statutes, constitutes a step long overdue. Since the last general revision of these laws was some 80 years ago, there would appear to be little question as to the desirability of such revision.

Insofar as the second objective is concerned, it is to be noted that the drafting of amendments of substance was the result of prolonged and careful study. In drafting amendments to existing laws, the following sources were consulted: (1) All bills relating to patents which have been introduced in Congress since 1925; (2) Reports of the Science Advisory Board, the Temporary National Economic Committee, and the National Patent Planning Commission; and, (3) reports and recommendations of private groups such as patent-law associations and patent section of the American Bar Association.

Because of the highly intricate and technical nature of the subject, the committee on law reform believes that it should not endeavor to pass judbment on each individual amendment. Nevertheless, it is the opinion of the committee that the amendments, in general, represent improvements in existing patent law.

The more important amendments to the present law are discussed briefly. The proposed law makes a provision that the manner in which an invention is made shall not negative patentability. Some question has been raised as to whether or not a new device or process discovered by experimentation constitutes a patentable invention and the bill now says these are patentable.

Court decisions are in conflict as to so-called intervening rights, and section 202 clarifies the law thereof.

In the interest of national defense the powers of the Commissioner to keep inventions owned by the Government secret have been enlarged.

Many schemes have arisen by which others pirate a patented invention by making a part only thereof and selling the part to another who completes the patented invention. The courts held as early as 1871 that such acts which contribute to infringement are infringements of the patent. In recent years, however, the courts have whittled away at this doctrine of contributory infringement so that it is now nonexistent, leaving many patentees without remedy to protect their patented inventions. The proposed bill reestablishes the principle, though not to the same extent, that contributory infringement is infringement of a patent.

'The bill also makes it possible for a court to take any action respecting a patent or rights thereunder of a patentee not resident in the United States. Under the present patent laws such patents cannot be reached except at the will of the nonresident owner.

*

In view of the fact that our last general revision of the patent laws dates back to the 1870's, the committee on law reform believes that the chamber should place itself on record as supporting any soundly conceived proposal-such as that contained in H. R. 3760-which would revise and consolidate existing patent statutes.

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