AFTERNOON SESSION

(The committee reconvened at 2:25 p. m. at the expiration of the recess.)

The CHAIRMAN. Mr. Dienner.

Mr. DIENNER. Senator, the witness we now produce is a man of wide and expert knowledge of the laws relating to patents on inventions in the various countries of the world. His testimony will give us a new and I believe very helpful light upon questions raised before this committee as to the operation of certain provisions of the laws in the chief industrial countries in Europe.

Mr. Langner, will you please be sworn?

The CHAIRMAN. Do you solemnly swear the testimony you are about to give in this proceeding will be the truth, the whole truth and nothing but the truth, so help you God?

Mr. LANGNER. I do.

TESTIMONY OF LAWRENCE LANGNER, MEMBER OF LANGNER, PARRY, CARD & LANGNER, PATENT ATTORNEYS, NEW YORK CITY

Mr. DIENNER. Will you please state your full name and your professional connections?

Mr. LANGNER. My name is Lawrence Langner. I am the senior partner of Langner, Parry, Card & Langner, of New York City, and practice as an international patent solicitor.

I passed the qualifying examination of the British Chartered Institute of Patent Agents in 1910. That is the body which deals with practitioners before the British Patent Office, and I came to this country in 1911, and I have practiced since that time in the taking out of foreign patents for American companies. I also have an office in London, in partnership with English partners who represent our firm in that country.

The CHAIRMAN. Of what country are you a native?

Mr. LANGNER. I am a native Britisher, naturalized United States citizen. I was adviser to the committee appointed by Mr. Woodrow Wilson to prepare the patent section of the Treaty of Versailles.

COMPARISON OF PROVISIONS OF FOREIGN AND U. S. PATENT SYSTEMS

Mr. DIENNER. Mr. Langner, will you please discuss the chief provisions of the patent systems of the most important industrial countries of Europe and compare the same with the provisions of the United States patent laws?

Mr. LANGNER. I will be glad to do that, but I would like to begin by explaining the provisions of the international convention which connects all these systems together. We have coming from the different countries an exchange of inventions, you might call them a two-directional stream, that is a stream of inventions coming from Europe, coming from the different countries of Europe, and then our inventions going over to those countries. That stream of inventions is regulated by what is known as the international convention. Fortyfive countries of the world, including all of the leading industrial countries, are parties to that convention, and the theory behind that

convention is this: That no country shall give to its own nationals benefits which it does not give to the nationals of other countries. In other words, an American is treated in England the same way an Englishman is treated in England, and over here, we being parties to it, the nationals of other countries are treated under our patent laws the same way the United States nationals are.

When you get to these different countries, we have three types of patent systems.

The CHAIRMAN. Is the convention any broader than that?

Mr. LANGNER. There are certain specific provisions under this convention which, for example, allow a man who has filed an application in this country, 12 months priority to file in the other country, and he is protected during that 12 months' period from the consequence of publication which otherwise would invalidate his patent.

In other words the other features are matters of detail and of procedure; and every now and again they will agree on some new provision because this convention has been going on since 1883. They meet about every 6 years, I believe it is, and make changes in it. But the thing is a continuous conventional treaty.

The CHAIRMAN. How is the convention constituted?

Mr. LANGNER. It is constituted by-it is a treaty document that has to be ratified by the Senate, and at these meetings of the international convention we send over delegates. The last one was in London in 1934 and they formulate new suggestions and proposals. It covers not only patents but also trade-marks, designs, petty patents, and trade names.

The CHAIRMAN. What sanction is there for the suggestions or regulations that may be adopted by the convention?

Mr. LANGNER. They bring them back, each set of delegates brings them back to their own country and they must be ratified by the governments of the respective countries before the changes go into effect. We have three types of patent systems. I divide them in that way, based on the thing that most fundamentally distinguishes them, the fact as to whether they are examination patent systems, or registration patent systems. The leading industrial countries of the world, except France, have what they call an examination system that originated in the U. S. Patent Office and was copied by other countries rather slowly; and in fact it was only in 1904 that it was copied in England. It does not exist in France even at this date, although a project is before the French Parliament to introduce the examination system.

The second type of system is the registration system where you merely file a specification in the Patent Office, no examination is made, and the patent is granted without any examination at all.

The third type of patent system is the Russian patent system. That is the only system of its kind in which rewards are given to inventors. I think in view of some of the remarks made this morning about patent attorneys, you may be interested to know that practically all the patent attorneys in Russia were shot after this new law came into existence, and that is not a joke; that is absolutely true. The CHAIRMAN. That was an effective way of dealing with that problem.

Mr. LANGNER. Yes, sir. Then we understand there is a system of rewards for inventors and I have been told, although I have never been able

The CHAIRMAN. Distinguish that from the system that you have just described. It is not a reward?

Mr. LANGNER. I do not know how I could distinguish it except to say this, that we know in one case that has been reported to us where the inventor of certain inventions that were adopted in a factory was given an automobile and one of the most expensive apartments in the town, and the system of reward is that type of economic reward, as far as we are able to understand it. I have not found any case where a foreign corporation ever got a reward in that sense of the word. Now, we have those three kinds of systems, and I would like to make this general remark, that I have noticed that the simpler the type of industrial civilization and the simpler the country, the simpler the patent system. The patent systems of these countries that follow what I call the registration type are extremely simple and they fit a more or less backward type of industrial civilization. The more complex the industry the more complex the patent system, and it is my opinion that as industry grows more complex the patent system must, if it is to serve that system, necessarily grow more complex. So for instance, we find that the English, German, and American patent systems are the most complex systems, perhaps the American the most complex of all, in its ramifications; and for instance, you can go to the other extreme and the Chinese patent system is about as simple as you can possibly have. That is, the need or necessity for a patent system in a country where the standards of living are very low, where wage scales are very low, the necessity for labor-saving machinery, for that kind of invention, is very small. Just about 5 years ago they adopted a patent law which only Chinese citizens could get patents under, and as far as we know very few patents have been issued.

The United States patent system differs from practically all the other patent systems of the world in two essential particulars. The right to obtain a patent is an absolute right for the inventor. That does not obtain in any other country. It is always surrounded by modifications which I will explain to you in a moment. The patent monopoly in the United States is an unconditional monopoly. In practically every other country in the world, in fact in every other country, it is a conditional monopoly, you are only granted the monopoly provided you do certain things, many of which are objectionable from the standpoint of the patentee and reduce the extent of his monopoly. Because of this, it is my opinion that we provide by this unconditional monopoly the greatest stimulus to invention that exists in any patent system. Indeed, I am constantly hearing from Europeans who come over here or people that I meet in Europe that that part of our patent system (they have criticisms for other parts of it) that grants this unconditional monopoly, in their opinion gives us the greatest stimulation to invention as compared with any other country. Now, there are a number of provisions which we have in our laws as compared with foreign laws or provisions which they have which are objectionable which I would like to paint a picture of for you so that you can see how we differ.

In this country, as I have said before, the first inventor, under the Constitution, has the absolute right to the invention. Under the laws of most of the foreign countries it is the man who first either originates it and rushes to the Patent Office or even in Great Britain the first man who has found it in a foreign country and brings it into England that gets the patent. In other words, it is not the act of inventorship that is the condition for the grant of a patent, but the act of inventorship and being the first to bring it into the Patent Office. The result is that under the European system, when a man has invented something he is under a tremendous necessity to keep that thing secret until he files his patent application, because if it leaks out in any way, if it is published first, even if it comes from his own publication, even if it leaks into a newspaper, that publication prevents him from getting his patent.

The CHAIRMAN. Do I understand that in England inventorship really is not an essential qualification so far as the foreign patent is concerned?

Mr. LANGNER. For example, let me explain it this way. If I see an invention over here and I go over to England with it and file a patent application before the American does, or before the American applies under the international convention which gives us 12 months' priority, that is mine even though I didn't actually invent it; that is the idea. I will explain why that is later. It sounds like a very bad thing, but as a matter of fact it came from a very old provision in the law which I will explain as we go along.

But the fact is that instead of having the ample opportunity to work out an invention to develop it, to get together with other experts in order to see how the thing should be developed, you have to rush to the Patent Office. In fact, my early training in this idea of secrecy was so great that it took me many years to get over that idea that we must keep the thing absolutely secret before the patent application is filed.

In this country, as you know, we grant a period that isn't limited. We give a man the opportunity to work out his invention before he files the patent application. He can get the cooperation and collaboration of others, and his patent isn't invalidated if something is published or leaks out. He can even test it out by having samples on sale before he need go to the expense of filing his patent application. That doesn't exist at all abroad.

Another evil goes along with that, and that is that they file, very often, what I call half-baked patent applications; that is, applications that just are sketches, hardly enough to really be working exemplifications, and the result is that the patents that come out are often very ambiguous because they are mere sketches, and as compared with the thoroughly well worked-out patents applications that we file in this country they constitute a rather ambiguous document.

They have tried to overcome that defect in England by the practice of what they call filing a provisional application. That is to say when a man makes an invention he may just put in a brief description of the application. He is given 9 months to file the completed documents. That, however, leads to other troubles; disconformity between the provisional and the complete results in the patent being invalid, so you see it carries along with it these other disadvantages.

Now, you will realize one thing about this European system-that it doesn't involve interferences. There is no interference practice abroad because it is the man who first rushes to the patent office that gets the patent, and it practically never happens that both go in on the same day. If you had the invention second and you filed it on Monday and somebody else had it first and he filed on Tuesday, the man who filed on Monday is the one who gets the patent, so you have practically no interfering practice like we have in this country.

The CHAIRMAN. Suppose it were demonstrated the man who filed it on Monday really derived his knowledge from the man who filed on Tuesday?

Mr. LANGNER. In that case, if it were in fraud of the other man's rights he would have a remedy, but not otherwise. You would have to prove that fraud.

The CHAIRMAN. Then the purpose of the system is to grant the patent to the man who first makes application, provided he is not operating in fraud of another person.

Mr. LANGNER. Yes; the theory being that merely making the invention does not entitle you to a patent. It is making the invention and then disclosing it to the Government which entitles you to a patent, that makes you the first inventor. That theory in my opinion, while it eliminates the interference practice, has so many other disadvantages that I would much prefer the complexities of interference practice with such simplifications as you can bring into that practice than to go what I would call a step backward to this other theory.

The next place where your patent system is more liberal is in respect to the fact that the patent dates from the date of grant. In most other countries of the world the patent dates from the time of filing, and however long it may take you to prosecute the patent application is counted out of the term of the patent, so if for no fault of your own, as I have seen happen in Germany through people filing oppositions and obstructing the grant of your patent, you are kept in the Patent Office, as might happen there, 6 or 7 or 8 years; instead of your getting an 18-year patent all you get is the difference between the time that it was in the Patent Office and the unexpired term of the patent.

The Patent Office in the United States is considerably more liberal in the amount of time it allows a man to prosecute his patent application. In foreign countries we are very greatly rushed in getting a patent application through. In England we are allowed only 18 months, and if we don't get it through in 18 months the patent is abandoned. They give us 3 months' grace on top of that by paying a fine for each month's extension, but it results in very hurried lastminute rush work, and I have known cases where we have lost valuable claims owing to the fact that we didn't have enough time to get the application through.

Now, the Patent Office practice in this country is criticized for allowing an application to stay too long, but we have the criticism in the other direction in some of the foreign countries.

The practice in this country on reissue is very much more liberal. There is no such thing as a reissue practice in foreign countries. We do allow corrections of the patent after the patent has come out, but we don't allow the generous type of reissue that is allowed in this country.