"Favored by the rules of our Patent Office, Germany used some 4,500 German-owned American patents to thwart the development of a native industry and made our Patent Office an outpost in her far-flung plan to dominate world trade. By means of these patents she prevented effectually imports of competing dyes of English, French and Swiss origin. If Germany could do this with a tool of our creation, why could not the same instrument in the hands of Americans be used against her as well? Accordingly, Chemical Foundation, Inc., was organized with Francis P. Garvan as President, who is credited with the execution of the plan. The Alien Property Custodian sold the German patents to Chemical Foundation, Inc., whose stock is owned by the members of the industry and whose management makes it a public institution whereby any qualified American manufacturers, regardless of stock ownership, may secure the benefits of the patents on fair and equal terms. "By the exercise of power incidental to ownership, Chemical Foundation, Inc., is in a position to prevent the importation of foreign-made competing dyes (and medicinal chemicals), which power can be made effectual in action at law for infringement upon patents owned by it and licensed to American manufacturers." This plan of what may be designated as "compulsory license," if properly carried into effect, may overcome the serious objections pertaining to our system of so-called "product patents," by which the first inventor of a process for producing a chemical compound hitherto unproduced, by patenting both product and process, has been able to prevent all future inventors from marketing the same product until the expiration of the original patent. It has been contended that a patent system which makes it impossible for the inventor of an entirely new and original process of manufacture to employ the same in producing the product of his process until the original patent has expired, defeats the very object of the Patent Law. This scheme has been protested again and again by the American Pharmaceutical Association, also by the National Retail Druggists Association, and other professional and commercial organizations. Attention has been called to the fact that most foreign countries have recognized the dangers of such a system, and that medicines have been excluded from patent protection in most foreign countries, including Germany, France, Austria-Hungary, Italy, Japan, Norway, Denmark, Sweden, Portugal, Russia and a number of other countries; also that many foreign countries exclude from protection, foods, chemical products and inventions relating to war material. Before the United States confiscated the German patents there were on the market, among other patented medicinal chemicals, advertised under names registered as trademarks, the following: Salvarsan, Neosalvarsan, Novocain and Veronal. All of these products were known to chemical scientists under their long chemical names. The chemical name for Salvarsan, for example, is dioxydiamidoarsenobenzol. It is not surprising, therefore, that the medical profession and the drug trade adopted the short so-called commercial names or trademark names as the true names of the articles themselves. This is what the German houses intended that they should do, but they intended at the same time to control these names commercially by claiming them to be trademarks or brand names. They hoped thereby to maintain their commercial control over the names after the patents for the products expired, in spite of the decision of the United States Supreme Court in the Singer Sewing Machine Case, and similar decisions; and also in spite of the fact that these names by that time would have become completely incorporated into the language. After the war was declared and the United States Government had confiscated the patents for these products, the Government coined names for them and licensed American chemical houses to produce these products in America. The Government name for Salvarsan is Arsphenamine; for Neosalvarsan, Neoarsphenamine. Procaine is the Government name for Novocain, and Barbital for Veronal. Several American houses have used these names and added some distinguishing name to denote their particular brands. Several questions of importance should be considered by the professions before endorsing the plan adopted by the Government in this connection. In the first place, what will be the status of the names Salvarsan, Neosalvarsan, Novocain and Veronal, after the expiration of the product patents now owned by the Chemical Foundation, Inc.? They have already been extensively incorporated into the common language as nouns. Is it the intention to allow these names to remain permanently under the control of the manufacturers now claiming them as trademarks, and thus permit them to hold a permanent ownership in the common nouns of the language? Why deny the other manufacturers of Procaine, for example, the right to coin names for their brands of Procaine, and register them as trademarks? Of course, that would probably result in the adoption of as many names for Procaine as there would be manufacturers, resulting in the making of the confusion worse. confounded. There are, for example, already fourteen names for hexamethylenamine. It has, again, been definitely shown that the right to the exclusive use of a registered name of a patented product expires with the patent on that product. The opinion handed down last November by the Examiner of Interferences of the U. S. Patent Office in the Application of the United Drug Company to cancel the registration of the word "Aspirin," claimed to be the property of the Farbenfabriken of Elberfeld Co. on the basis of registration under the Trademark Act of 1881 is the foundation for this statement. The examiner states: "The respondent (Farbenfabriken of Elberfeld Co.) has not the right to the exclusive use of the word "Aspirin" for the substance disclosed in Patent #644,077, and that it has not been used by the respondent as a trademark within the meaning of the record ground of Section 13 of the Trademark Act of Feb. 20, 1905." It was therefore recommended that the registration of the word "Aspirin" be cancelled. A limit of appeal was set and as no appeal was taken, the word "Aspirin" may be applied by any manufacturer to the monoaceticacidester of salicylic acid. There are now before Congress two bills H. R. 5011 entitled "A bill to establish a Patent and Trademark Office independent of any other department and to provide for compensation and infringement of patents in the form of general damages, and for other purposes," and H. R. 5012 entitled "A bill to establish a United States Court of Patent Appeal, and for other purposes." Both bills were introduced by Mr. Nolan and are intended to reorganize the Patent Office on such a basis that its business may be expedited and conducted in a manner so as to avoid careless issuing of patents and a repetition of the frauds discovered when we severed relations with the Teutonic Powers. A separation of the Patent Office from the Interior De partment, which is provided in one of these bills, making it a separate entity, is undoubtedly a step in the direction of cutting superfluous red tape and permitting this office to conduct its business without interference from a higher authority. The Commissioner of Patents, under the new bill, is appointed by the President, with the consent of the Senate, and holds his office during the pleasure of the President. The Commissioner is bonded to the sum of $10,000 conditioned for the faithful discharge of his duties and is responsible to the proper officers of the Treasury for a true account of all moneys received and disbursed by virtue of his office. He is charged with superintending and performing all duties respecting the granting and issuing of patents and the registration of trademarks, prints and labels directed by law, and has charge of all books, papers, records, models, machines and other things belonging to the Patent and Trademark Office. He is charged with performing all acts previously provided by law to be performed by the Secretary of the Interior or the Commissioner of Patents, or both, with respect to the Patent and Trademark Office. He will have the power to establish regulations not inconsistent with law for the conduct of proceedings in the Patent and Trademark Office. He is empowered to purchase for the use of the Patent and Trademark Office such a library of legal, scientific and technical works and periodicals. both foreign and domestic, as may aid the officers in the discharge of their duties. He is also authorized to publish an annual volume of the decisions of the Commissioner of Patents and of the United States courts in patent cases; indexes to patents, etc. From this synopsis of the bill it can be very readily seen that the importance of the Patent Office has been realized and if the proper administrative officers are selected, there should be a decided improvement in our methods of supervising the granting of patents and trademarks. The other bill before Congress provides for the creation of a United States Court of Patent Appeals consisting of seven judges, a chief justice to be appointed by and with the advice and consent of the Senate. This Court shall have jurisdiction to hear and determine appeals and writs of error from final judgments and decrees in the District Courts of the United States, in cases arising under the laws of the United States relating to patents and inventions, and from final judgments and decrees in cases arising under the laws of the United States relating to patents for inventions rendered by any other court having jurisdiction under the laws of the United States to hear and decide such cases in the first instance provided, however, that it shall have no jurisdiction in cases originating in the Court of Claims. The decisions of the United States Court of Patents Appeals in all cases within its appellate jurisdiction shall be final, excepting that it shall be competent for the Supreme Court of the United States to require by certiorari or otherwise, any such cases to be certified to for its review and determination with the same power and authority in the case as though it had been carried by appeal or writ of error from the trial court directly to the Supreme Court. It is to be presumed that the judges appointed to this court will be particularly well versed in the Patent Law and thus, for the first time, we will have a tribunal which will be in a position to decide fairly on all cases, not only from an inherent judicial standpoint, but also from a standpoint of expert knowledge of the law and the technicalities involved. Your Committee would recommend unqualified endorsement by the American Pharmaceutical Association for both these measures and that telegrams of such endorsement be sent at once to Mr. Nolan and the Committee on Patents of the House of Representatives. When these bills are passed, every influence should be used by this Association to secure the appointment of men in the various departments of the Patent Office who are technically trained and understand the sciences as well as the law. Efforts should also be made to secure the appointment of judges whose experience covers a wide field of patent investigation. Respectfully submitted, F. E. STEWART, Chairman SAMUEL C. HENRY C. L. ALSBERG ROBERT P. FISCHELIS |