Mr. COTTONE. Now, do you have any opinion as to why these suits have been dragged out over a period of 12 years, Mr. Kingsland? Can you account for it in any way?

Mr. KINGSLAND. Well, I, of course, do not know what the reason is, except that we are outside of the fold of licensees; it is a fair assumption that to keep the licensees satisfied there have to be suits pending against those that do not happen to be within the fold. That is pure surmise.

Mr. COTTONE. I was thinking in terms of the length of time. Do you consider that the different strategic moves that have been made are designed as a harassing device?

Mr. KINGSLAND. It has resulted certainly in that, because we have been under constant litigation since 1926, substantially against the same construction we were using since that date.

Senator KING. Was there any delay by the plaintiff or by the defendants in that suit?

Mr. KINGSLAND. I would not say that there was any extraordinary delay in that suit. I think it was tried about on the schedule of the ordinary patent suit-that particular suit.

Senator KING. As defendant you wouldn't be interested in dragging it out or would you?

Mr. KINGSLAND. We have been, Senator, from the very beginning, anxious to clear this issue of infringement.

Senator KING. I assumed that you were.

Mr. COTTONE. Has this litigation affected in any way the operations of the Obear-Nester Co.?

Mr. KINGSLAND. I have no way of judging that, other than the difficulty of defense of litigation of this magnitude. They have gone right ahead with their business.

Mr. COTTONE. It does take the time of many employees, does it not, in the preparation of cases and trial of cases?

Mr. KINGSLAND. There is no question about that.

The CHAIRMAN. About how many employees are required to defend these suits?

Mr. KINGSLAND. Oh, engaged in the defense-that is, taking the employees-I should say that during the preparation of the case 8 or 10 major employees would be consulted.

The CHAIRMAN. It is continuous work, is it?

Mr. KINGSLAND. I would not say that; no. They continue to perform their ordinary functions.

The CHAIRMAN. Some witnesses who have appeared here have given an estimate as to the annual cost of litigation. Could you undertake to give that?

Mr. KINGSLAND. I could give the committee a general idea as to what this litigation over a period of 12 years has cost. It has cost in the neighborhood of $200,000, exclusive of the time of the corporate employees, for experts, lawyers' fees, and matters of that kind. Mr. ARNOLD. Is the fact that no one has asked you for licenses on your machine, do you think, due to this continued litigation?

Mr. KINGSLAND. I should say that would be a deterrent, certainly, to anyone who would attempt to go into the business.

Mr. ARNOLD. It is a pretty clear inference that if they took one of your machines they would also be subject to continued suit?

Mr. KINGSLAND. Because we are sued with respect to that construction.

Senator KING. Are you sufficiently advised to determine whether your patents and the products of your patents are as good as the products of the patents held by the Hartford Co.?

Mr. KINGSLAND. I am absolutely satisfied that they are, and our statistics show approximately a 5-percent increase in production.

Senator KING. So that your vendees, in buying your products, would be getting as good, if not better, products than those from the Hartford licensees?

Mr. KINGSLAND. I would not say a better product. The product is comparable, but the speed of production is somewhat increased by our air-feeder process, in my judgment, and as we have established by our own statistics and to our own satisfaction.

Mr. COE. Have all of these suits been confined to the sixth circuit? Mr. KINGSLAND. They were all in the eighth circuit. The ObearNester Glass Co. is a Missouri corporation, and the suits have all been filed in Missouri.

Mr. COTTONE. The Obear-Nester Co. has been in a financial position to withstand this litigation over this 12-year period?

Mr. KINGSLAND. They are a strong company financially.

Mr. COTTONE. Did you know that the Owens Co. was contributing to the expense of prosecution of these suits against Obear-Nester? Mr. KINGSLAND. No; that was never known.

Mr. COTTONE. Do you now know it?

Mr. KINGSLAND. I know it from reading the transcript of the testimony here.

The CHAIRMAN. May I interrupt? The chairman has been called away and I shall ask the vice chairman to preside in my absence. It is my understanding that you hope to be able to conclude with this witness in about 10 or 15 minutes.

Mr. COTTONE. Mr. Kingsland, in addition to the patents on which you have been sued, you have also been notified by the Hartford Co. that you have been infringing a number of other patents, have you not?

Mr. KINGSLAND. That is true. Subsequent to the time that the Obear-Nester Glass Co. succeeded in the second litigation, there was an additional notice sent to that company, including some 14 or 15 patents, part of them on the feeder section of the glass fabricating units and part of them on the so-called forming-machine section of the units.

Mr. COTTONE. Do you recall the date of that notice?
Mr. KINGSLAND. I can check it. My recollection is
Mr. COTTONE (interposing). Is it August 2, 1934?
Mr. KINGSLAND. That is correct.

Mr. COTTONE. Has any suit ever been filed on the patents that were included in these various notices? Oh, by the way, do you know how many patents in addition to those on which you have been sued were included in those notices?

Mr. KINGSLAND. I think there were some 14 or 15. I haven't checked them because there were two notices. There was a 1928 notice and this last notice, but I think altogether about 14 or 15 patents that we have been notified about on which there has been no suit filed.

Mr. COTTONE. In that 1928 letter of infringement, was there included in phase-change patent, which was made the subject of the third suit?

Mr. KINGSLAND. The phase-change patent was included.

Mr. COTTONE. And that letter was dated prior to the second suit? Mr. KINGSLAND. That is correct. I am saying that without checking those numbers, but that is my memory of it.

Mr. COTTONE. I have here the notices of infringement. These are documents that were supplied to us by the Obear-Nester Co., which consist of two notices of infringement dated February 14, 1928, and August 2, 1934. I am referring to that first letter, dated 1928.

Mr. KINGSLAND. In the 1928 letter was included the so-called phasechange patent.

Mr. COTTONE. That was prior to the institution of the second suit? Mr. KINGSLAND. Yes. I do not recall whether that was repeated in the 1934 notice. I think it was not.

Mr. COTTONE. You said there were certain forming-machine patents that were included in that second notice. Is that so?

Mr. KINGSLAND. That is correct.

Mr. COTTONE. What kind of forming machines had the ObearNester Co. been using?

Mr. KINGSLAND. They are using a Lynch machine.

Mr. COTTONE. Where had it obtained these machines?

Mr. KINGSLAND. The Lynch machine had been obtained as early as 1922 on the market.

Mr. COTTONE. Purchased outright, not under any license?

Mr. KINGSLAND. Under no license.

Mr. COTTONE. Did you hear the testimony this morning with respect to the Lynch-Hartford-Empire contract relating to formingmachine patents?

Mr. KINGSLAND. I did.

Mr. COTTONE. Were you familiar with the arrangements under that contract?

Mr. KINGSLAND. I did not know the details. I knew that the Lynch Co. would not furnish machines.

Mr. COTTONE. Before you come to that, Mr. Kingsland, did you attempt to obtain any additional forming machines from the Lynch Corporation at any time?

Mr. KINGSLAND. We did, I think, in 1935-36.

Mr. COTTONE. Can you tell us the results of those efforts?

Mr. KINGSLAND. We were unable to obtain them. There was some correspondence covering the details of those negotiations.

Mr. COTTONE. I show you the correspondence to which you have referred, Mr. Kingsland, and ask you, without reading it into the record, to identify those documents and to indicate what they state.

Mr. KINGSLAND. The letter of June 29, 1935, to the Lynch Corporation, from the Obear-Nester Glass Co., asks that the Lynch Co. quote them on Lynch machines, three additional machines.1 The reply to that was a quotation. The reply is dated July 1, 1935, and is a quotation with respect to the units inquired about, and the statement that a license would be required, not stating to whom application for the license should be made.2

1 Subsequently entered as "Exhibit No. 155, see appendix p. 798. Subsequently entered as "Exhibit No. 156," see appendix p. 799.

Then, on July 6, 1935, the Obear-Nester Glass Co.-I should say on July 3, 1935-the Obear-Nester Glass Co. wrote again to the Lynch Corporation asking whether or not it was a prerequisite to the obtaining of the machines that a license be obtained, and the reply on July 8 was that it would be necessary to obtain a license before we could purchase the machines."

Senator KING. Was there any indication to whom you should apply for the license?

Mr. KINGSLAND. We applied to the Lynch Corporation, because they were the manufacturers of this machine at that date.

Mr. COTTONE. There was no indication in these replies of the Lynch Corporation as to the party to whom you were to apply for a license, was there?

Mr. KINGSLAND. No; but we knew generally what the situation in the trade was. We assumed it was Hartford."

Mr. COTTONE. You know the arrangements that existed between the Lynch Corporation and the Hartford Company?

Mr. KINGSLAND. We didn't know the details, but we knew there was some arrangement whereby a Hartford license would be required. Mr. COTTONE. Did you attempt to obtain a license from the Hartford Co.?

Mr. KINGSLAND. We did not.

Mr. COTTONE. Will you tell us why?

Mr. KINGSLAND. Because we had been in controversy with them with respect to the feeders. We knew the licenses were coupled together and we were unwilling at that time, and still are, to come under that license system. We went out to the open market and bought second-hand machines to supply our needs at the time, and we are using those machines today.

Mr. COTTONE. You stated that there was no suit started on these forming-machine patents.

Mr. KINGSLAND. There were no suits filed on the forming-machine patents.

Mr. COTTONE. Have you received any information or indication that suits might be filed by virtue of your use of these old Lynch machines?

Mr. KINGSLAND. Nothing further than the notice, and that was dated—I believe you gave the date-August 2, 1934.

Mr. COTTONE. That is all, Mr. Chairman.

May I offer these four letters which Mr. Kingsland has identified? The VICE CHAIRMAN (Representative Sumners). For the record! Mr. COTTONE. They need not be printed.

Senator KING. Is there any controversy there? Should they be set out in the extension of the record?

Mr. COTTONE. I am perfectly willing that they should be identified and kept in the files.

(The letters referred to were marked "Exhibits Nos. 155 to 158" and are included in the appendix on pp. 798-800.)

Mr. CoE. Mr. Chairman, there is one point I would like to have the witness clear up in my own mind. I understand the litigation against you has been confined to the eighth circuit. These patents

1 Subsequently entered as "Exhibit No. 157," see appendix, p. 796. 2 Subsequently entered as "Exhibit No. 158," see appendix, p. 800.

forming the basis of the suits against you-have they been litigated in any other circuit?

Mr. KINGSLAND. The phase-change patent has been litigated and the Steimer patent has been litigated. They were litigated in the sixth circuit in the Nivison-Weiskopf litigation, and also in the third circuit.

Mr. COE. Is there any conflict as to the validity of those patents?

Mr. KINGSLAND. There is a conflict, I understand. Even as between. the eighth and sixth, the construction of the claims and the claims held valid do not agree. There is a contrarity of opinion between the two circuits with respect to the scope of the claims involved.

Senator KING. In those suits to which reference has just been made, was there an adjudication in favor of the validity of certain patents and the invalidity of certain other patents?

Mr. KINGSLAND. Claims of patents. and certain claims were held invalid.

Certain claims were held valid

Senator KING. Were the Steimer patents held invalid?

Mr. KINGSLAND. It was held invalid in the sixth circuit and valid in the eighth circuit.

Senator KING. This isn't germane, but it seems to me it is very important to aid the committee in determining what sort of legislation, if any, is required. Don't you think that it is a very unfortu nate thing that we have a system under the terms of which there may be different opinions with respect to the same patents in different Federal courts?

Mr. KINGSLAND. I think it would be a happy solution of the matter if it could be final, but as to the means of obtaining that I have no opinion at the present time.

Senator KING. Have you any objection to stating whether this plan would have merit, to provide that suits may be filed in the district courts, the Federal district courts, in any jurisdiction, and an appeal taken from that court directly to a court of patent appeals whose decision would be final unless a writ of certiorari or some constitutional question is raised, when the case might be carried to the Supreme Court?

Mr. KINGSLAND. That, of course, is quite a controversial subject at the patent bar, and I have no definite opinion on it. I see considerable advantage in it. I see some detriment. Taking and balancing the favorable outcome that would result from that and that that would not be favorable, I would say that it would probably be the best way to get this litigation terminated more quickly. I do feel, however, that if a plaintiff has a group of patents, that the simplest solution is to require him to put all of his patents into one suit against the single accused structure, which is a very simple way to handle it. That is my judgment about it.

Senator KING. Disassociating yourself-there is some facetiousness in this; it isn't meant by way of criticism-from the lawyers' cult, and considering only the interest of the inventor and the public, do you not think some plan should be devised under the terms of which these patent cases might be more expeditiously and cheaply determined?

Mr. KINGSLAND. I most heartily approve of that idea.