Mr. CRUMPACKER. I remember a peace compact agreed to in 1949. Mr. QUIGLEY. Unless in Austria now, perhaps Mr. BRICKFIELD (interposing). I know that the Presidential proclamation of 1952 was the document which declared World War II as of that time officially terminated. Mr. BROOKS. Assuming that it is terminated, and they are still using Mr. Hooper's patent, do you think their continued use would justify an extension under this terminology? This requirement of a substantial curtailment? Mr. CRUMPACKER. No; I do not. I think the claim or right on the part of the Government would not grant an extension beyond that period. He would have to use a recourse to the courts for whatever damages there were during this period, when they continued to exercise this right after the duration of the war and 6 months thereafter. Mr. QUIGLEY. Specifically, you would say that in the case of the Hooper Co., that this bill if passed would entitle them to an extension for approximately 912 years measured from February 20, 1943, until October 28, 1952? Mr. CRUMPACKER. No, from 6 months following V-J Day, which, I think, was February 10, 1946, until 6 months after this proclamation in October 1952. Mr. QUIGLEY. About 6 years? Mr. CRUMPACKER. About 6 years. Mr. QUIGLEY. After that period, if the Government used that, he could go into court-that is his responsibility? Mr. CRUMPACKER. Yes. Mr. QUIGLEY. Prior to that time, we are going to accept the gift which they gave the Government, are we? That is which they originally intended to give the Government? Mr. CRUMPACKER. We are going to accept that and thank them. (At this time Mr. Willis returned to the room and resumed the chair.) Mr. BROOKS. Mr. Chairman, the question that we have been discussing concerns the period they were going to get, from the original date that they originally gave it, or from the end of the shooting war, or the date of the termination plus 6 months. Now, Mr. Crumpacker, who has worked on that, says that the period that is included there is from the date of the end of the shooting war plus 6 months, which is what is contemplated, to the date of the actual legal technical termination of our contract, which was the duration of the war and 6 months-which would be maybe 6 years later. That is the period that he says he wants to give an extension, but I just wanted to get it straight. Mr. CRUMPACKER. I will agree and concede that this language is not clear, and perhaps, we can consider revising it in executive session. Mr. CURTIS. Has your company or have you ever granted a royaltyfree license to the Government or to manufacturers furnishing goods to the United States at any other times than during a period of war emergency? Mr. HOOPER. Have we granted, you said, any licenses? Mr. CURTIS. Royalty-free licenses to the Government or to manufacturers making goods for the Government at other periods besides such periods of war emergency as are treated in this bill. Mr. HOOPER. I am just trying to think; I am not trying to hedge on you, sir. The only license arrangement that even approaches an arrangement like that was a license arrangement with another finisher on a basis of interchanging ideas. In other words, kind of a mutual thing where in the case of patents they had the benefit of what we did, and we have the benefit of what they did. Other than that, I know of no such arrangement. Mr. CURTIS. What I am getting at, Mr. Hooper, is that when you made such an arrangement as you made with the Government, is there a commercial advantage, a quid pro quo? In other words, is there a commercial advantage in having this thing promoted and publicized by the war use? It Mr. HOOPER. No, there isn't very much advantage to us for having them do it. It did, of course, get the name of our company and our patents pretty well known throughout the country, but it also brought in the techniques and the know-how to every other finishing concern in the United States that was interested in this kind of work. brought in some of the biggest in the country, even Goodyear, United States Rubber, and concerns in California-there were 2 or 3 concerns in California. There are concerns all over the country who went into this business, and who made their formulations based on our techniques and our patents; and you know and we know that a chemical patent is a very difficult patent to sustain. Mr. CURTIS. If you had given them not royalty free but ordinary royalty patents in an ordinary time, they would also have learned the techniques and so forth, of operating under that patent, of course; would they not? Mr. HOOPER. Then they would have paid us a royalty and we would have given them the techniques, of course. Mr. CURTIS. And in the ordinary course of business, you would probably have licensed other manufacturers to use your patent? Mr. HOOPER. Yes, sir; I think your question was in the beginning whether we had given any royalty-free. We have given some where we collect a royalty. Mr. CURTIS. Just one further question about the construction of this agreement that you made for the duration of the war and 6 months thereafter, I think some of us are a little shocked to find that the Government is still claiming rights under that agreement, and I wondered: Does your company feel that you had a legitimate grievance or claim against the Government, because of the length of time that they have been claiming the right to use this royalty-free license? Mr. HOOPER. We do, Mr. Curtis. I happen to have been in our head office in Philadelphia the day that this original agreement was written, which was February 20, 1943; and the way it was written wast rather interesting. A Miss Coyne from the Legal Department of, I think it was, the Quartermaster General's office-I think it was, but I wouldn't swear to that-represented the Government and came to our office and asked for this royalty-free license, and we called in our patent attorney, Mr. Lechner at that time, and the whole interview did not last 45 minutes. I forget who was with Miss Coyne-she had a delegation of other lawyers with her-and she told us that they had to have our patents, that they were vital to the war effort, and under what agreement would we turn them over to the Government. In other words, what royalties would we ask. The president of our company, Mr. Robert Hooper, said we would not ask any royalty. Our boys at that time were on destroyers, and we were glad to do it, so we said to go out with Mr. Lechner and write the agreement. They wrote it just right then and there. Five minutes it took them. At that time nobody expected that there would be any argument about it, and we thought when the war was over, it was over, and certainly a shooting war. When you stop shooting, that is the end of the war, and V-J Day came along. It was our idea that the war was over, but, my goodness, no, the war is still going on as far as we are concerned. We think we have been very shabbily treated. We did not try to make a deal with the Government. Mr. CURTIS. According to what you have said, you have not made a claim against the Government. Mr. HOOPER. No, sir; we have tried to get our patents extended, and if we do get our patents extended, we waive all rights. When we gave a royalty-free license to the Government, we did not ask for a royalty. We gave the royalty free for the duration of the war and 6 months. We did not ask for money, and we never have asked for that, but we do claim that after the war is over, someday, we should have our patents which are good patents, and have stood those losses, we should have the time extended to us during which it was taken away from us; but even in that extension, the Government still has the royalty-free license. We only got a protection for our commercial loss which we lost. Mr. CURTIS. When your company generously gave these patents to the Government for the war, there was not any thought at that time, was there, that there might be legislation for patent extension? Mr. HOOPER. No, sir. That did not enter our minds at all. As I said, the whole deal was done in a few minutes, relatively speaking. The Government wanted a license. We told them to go out and write the form of license you want. We had not had any experience in that line, and they brought it in and we signed it. That is all there was to it. You can read it yourself. It is there on the back of this thing, only a page. (The witness is referring to the agreement between the Hooper Co. and the Government for the royalty-free license.) The Government wanted it, and we said we will give it to you. Mr. CRUMPACKER. May I ask: Do you have any information or any other information on any other patent holders who are in similar condition? Mr. HOOPER. No, sir; I have no specific information, although there must be some people. Mr. CRUMPACKER. The reason I ask is that you are the only one who has appeared before us to testify as to this type of a case. I just wondered if there were others in the United States in this category. Mr. HOOPER. I would imagine that there must be loads of people who gave royalty-free licenses, but whether it met all these terms and conditions, I do not know. Of course, a lot of people may have given patents royalty-free that were never used. The conditions of this bill, as well as previous bills, impose five conditions. Mr. WILLIS. Yes; that is in the record. Mr. HOOPER. And the patent has to have been a real contribution. Mr. WILLIS. Do any of you gentlemen have any other questions? (There was a negative response from the other members of the committee.) Mr. WILLIS. Thank you very much, Mr. Hooper. Mr. HOOPER. Thank you very much indeed for the opportunity of being here. Mr. WILLIS. IS Mr. Whiting here now? Has he entered the room. since we last called him? Mr. WHITING. Yes, sir; I am here now. Mr. WILLIS. Will you identify yourself and the capacity in which you testify this morning? STATEMENT OF RICHARD WHITING, CHAIRMAN OF THE RULES AND LAWS COMMITTEE, THE AMERICAN PATENT LAW ASSOCIATION Mr. WHITING. My name is Richard Whiting. I am a patent lawyer, and I am here as chairman of the rules and laws committee of the American Patent Law Association, and the statement I am about to give is with the approval of the board of managers of the American Patent Law Association. Mr. WILLIS. You have a prepared statement, do you not? Mr. WHITING. Yes, sir. Mr. WILLIS. How many pages are there in the prepared statement that you have, please? Mr. WHITING. It is five pages. I was not planning to read it all, but I thought if you did not mind, I would read some of the high spots. Mr. WILLIS. You are a lawyer, and I know you can get along without reading. Mr. WHITING. All right. I do not know that I am prepared to ad lib it, as it were. I think the statement says it better than I could. Mr. WILLIS. We will insert your prepared statement into the record at this point. (The above-mentioned document is as follows:) Re H. R. 2128, patent extension. AMERICAN PATENT LAW ASSOCIATION, To the Members of the Committee on the Judiciary, 84th Congress. GENTLEMEN: This association, a nationwide organization of patent lawyers, strongly opposes this bill. A mimeographed copy of our prepared statement before Subcommittee No. 3 at the time of the hearings on March 9, 1955, is attached for your consideration. We should like to stress one point for your consideration which we believe is a fundamental and controlling objection to the passage of this bill. This objection goes especially to those portions of the bill which provide as a ground for patent extension the curtailment of the exploitation or development of the invention because of wartime controls on production or materials. This provision seems to us clearly to constitute class legislation without any real justification. 66663-55- -3 The wartime controls under consideration were not controls especially directed toward patents or patent owners. The wartime controls were controls on production and materials which affected patent owners no differently from their effect on many other enterprises not involving patents. The right to manufacture, use, or sell an invention is not a right obtained by a patent, as a patent grants only the right to exclude others from the use of the invention. Any wartime curtailment of the right to manufacture, use, or sell an invention was not a curtailment of a right obtained by a patent. To the extent that such curtailment shortened the period that a patentee might enjoy and profit from his monopoly, his loss was no different in kind or degree from countless other similar losses suffered by many nonpatent owners during the war. There is no reason that the purchasing public, and it is they and not the Government who would pay for the proposed extension, should reimburse patent owners any more than others who suffered similar losses. This association opposes class legislation directed to patents because it believes there is strength in that position as a fundamental policy to avoid unwarranted attacks on the patent system. Of course, some patent owners would like to extend their patents at the expense of the particular segment of industry which would be affected by the extension. But as a matter of overall policy, we have consistently opposed such class legislation. We have in the past opposed such bills as the one providing for an extension of the Royalty Adjustment Act because we believed that the legislation treated patentees as a special class to their detriment. We feel there is strength in taking a consistent position against the present class legislation. We respectfully urge that this bill be defeated. AMERICAN PATENT LAW ASSOCIATION, Chairman, Laws and Rules Committee. STATEMENT OF THE AMERICAN PATENT LAW ASSOCIATION The American Patent Law Association is a national organization, founded in 1897 and having at the present time a membership of approximtely 1,500 lawyers specializing in the practice of patent law before the United States Patent Office and the Federal courts. Although its headquarters are in Washington, the majority of its members are scattered throughout the United States and it is in no sense a local organization. Its membership represents patent owners and is vitally concerned with the welfare of the patent system. The association traditionally has opposed all patent extension bills. On June 20, 1951, its laws and rules committee chairman filed a statement and testified before the House Committee on the Judiciary in opposition to patent extension bills in the 82d Congress, H. R. 323 and H. R. 4054. On June 10, 1953, it similarly filed a statement and testified before the House Committee on the Judiciary in opposition to patent extension bills H. R. 1228, H. R. 1301, H. R. 2309, H. R. 3534 and H. R. 4944. Most of these prior bills are similar in principle to the two bills now under consideration. The association is firmly opposed in principle to the passage of any bills providing for the extension of the terms of patents where the use, exploitation or promotion of the inventions covered thereby was prevented, impaired or delayed by reason of shortages of materials, Government regulations, or the like resulting from the existence of a state of war or national emergency; or where the owner of the patent granted a royalty free license to the United States during wartime and, therefore, received less reward for governmental use of his invention than might otherwise have been the case. With respect to the two bills we are now considering, H. R. 2128 and H. R. 3134, while differing in some respects from each other, they are much alike in the general import of their provisions in providing extensions on the basis of previously granted royalty free Government licenses or on the basis of curtailment of manufacture on account of Government imposed restrictions. H. R. 2128 has a further provision relating to veterans which does not appear in H. R. 3134. Of the two bills, H. R. 3134 is the more objectionable because of the breadth and indefiniteness of its expressions. It seems to provide, as a further ground for extension, that the normal use, exploitation, promotion or development of a patent has been impaired simply by circumstances beyond the control of the |