Mr. LANHAM. I did not say it had nothing to do with national defense. I said it was not based on the preservation of national defense, that it was much broader than that. It is just as if you would pass some legislation with reference to any store that sells shoes. Well, these department stores not only sell shoes but they sell a thousand other things. These agencies get many suggestions that would not have anything, primarily, to do with national defense. And even if the bill were framed simply to protect inventions useful for national defense, the question arises what is useful for national defense? The answer is practically everything; "shoes and ships and sealing wax.” Mr. BRYSON. Is it your feeling that this is new legislation? Mr. LANHAM. This is entirely new legislation.

The Committee on Patents of the House of Representatives held hearings two or three different times, and on each occasion declined to report such a bill.

Mr. BRYSON. In other phases of our life the Government does enjoy preferential treatment, like eminent domain, and so forth.

Mr. LANHAM. Yes; it does. I will show where it enjoys some preferences in the matter of the patent system also.

Mr. BRYSON. Your position is that this goes too far?

Mr. LANHAM. Far too far. It discriminates against the citizen; it discriminates against the inventor. It would absolutely nullify his incentive to do anything for the Government. Why should he under such legislation spend his time and money to invent something for Government use?

I want to show you something from the hearings along that line that I think will elucidate that point.

Mr. LEWIS. That is the reason, Mr. Bryson, that I said the other day this bill cuts under the whole patent system and just simply takes it out at the base.

Mr. LANHAM. It does, Mr. Chairman, and I want to try to show that.

Mr. BRYSON. When it comes to preserving the national security, any individual or group of individuals ought to be required to subordi

nate their interests.

Mr. LANHAM. That is very true, and they did in this late World War, under a law which I sponsored, which I was the author of, to keep secret inventions primarily useful for national defense, and under that the National Inventors Council was set up, and the law also provided that inventors should be compensated if their inventions were used. In 2 years, as Mr. Henry testified, we made more progress under that act with reference to inventions for national defense than Hitler had made in 10 years.

Mr. KEATING. You recognize, do you not, Mr. Lanham, that there is a line of distinction between the position of the Government with some secret device and an ordinary individual; that there are cases where the Government might not be called upon, in the interest of national security, to disclose the details of a secret invention, whereas such would be necessary for an individual in order to establish that he was a first inventor?

Mr. LANHAM. That is true, and I shall show you from our present law where the Government has that opportunity.

Mr. LANE. Was that an identical bill that you had before the committee before?

I am not a prophet or the son of a prophet, but I will make this prediction, that if this bill is enacted into law as it stands you may be presented with other bills that are even more destructive of the principles of our patent system.

Now, let's get down to this matter of secrecy and security, where the Government is given, by law, an advantage over the citizen. It might be appropriate here to quote an excerpt from a recent statement of David Lilienthal, who has, from the beginning, been connected with our Atomic Energy Act. This is the statement of David Lilienthal: Secrecy, applied in a stupid, hysterical, and demagogic way, can actually impair and weaken our security we need ideas if we are to keep our lead and increase it. * * New ideas require not only inspiration and perspiration

but information.

*

* * *

Mr. KEATING. Was that statement made in connection with this pending legislation?

Mr. LANHAM. It was not; no, sir.

I want to show you the advantage that the Government has with reference to secrecy and security of applications for patent that it may file.

This is on page 13 of the Patent Laws, as put out by the United States Patent Office:

Section 4894. All applications for patents shall be completed and prepared for examination within 6 months after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within 6 months or such shorter time, not less than 30 days or any extensions thereof, as shall be fixed by the Commissioner of Patents in writing to the applicant after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable.

That is the provision with reference to the citizen.

Now, here is a further part of that section with reference to the Government:

Provided, however that no application shall be regarded as abandoned which has become the property of the Government of the United States and with respect to which the head of any Department of the Government shall have certified to the Commissioner of Patents, within a period of 3 years, that the invention disclosed therein is important to the armament or depense of the United States.

That time can be extended over and over again.

Mr. Federico is here, and I am sure if you would inquire of him you would learn that applications for patents which are thus kept secret have been held for 15 years or more.

Mr. KEATING. So, the Congress has already recognized that the Government is in quite a different position from the ordinary individual?

Mr. LANHAM. I appreciate that, but it also provides by this very provision that it can protect itself by applying for these patents, which are kept secret, and can carry on indefinitely under such secrecy, and then if any patent is applied for by a citizen on similar inventions the matter is thrown into interference, and it is cleared up with regard to the law with reference to interference.

79397-48-ser. 22-5

Mr. KEATING. That would also require hiring patent attorneys. Mr. LANHAM. I am coming to that very thing.

Mr. KEATING. In order to examine all of these patents and do what is called for in that provision, how much additional personnel do you think that would take?

Mr. LANHAM. Let me say this: I do not think it would take so many. When they examine the various proposals-you know they get a lot of crackpot ideas and a lot of sensible ideas-I do not think it would take so many to make the proper selections. You will recall that in his testimony, Mr. Hackley himself said that the Government already had legal protection but that it needed some more personnel. He said that it was simply a practical matter with them.

Now, gentlemen, it certainly would be a great deal more sensible to give the Government some additional personnel than it would be to undermine or nullify the fundamental principles of our patent system against the citizen inventor, and he has been the one primarily, and in the great majority of instances, responsible for our progress.

I do not know what effort they may have made before the Committee on Appropriations to get that additional personnel, but I do not think they would have any special difficulty if they would bear down on that and show the suits that have been filed.

Insofar as the amounts are concerned, in those suits, of course, any lawyer knows that if you expect to recover $1,000 your allegations would probably be for damage in the amount of $50,000 or something

of that kind.

Mr. KEATING. Supposing sufficient personnel were provided to the Army and Navy, and that hurdle were gotten over in that way, what protection is there in existing law, without something of this kind, to assure that secret inventions of the Army or Navy are not made public property in the Patent Office?

Mr. LANHAM. Applications for patents are kept secret in the first instance. I am sure the oflicers of the Patent Office would take any course that would be recommended by the Army and Navy and agencies dealing with national defense with reference to keeping secret any applications that they would file under this law.

Mr. KEATING. I can imagine there might well be inventions of such a top-secret character that the Army and Navy authorities would be hesitant even to take the chance of filing those applications in the Patent Office.

Mr. LEWIS. If there should be any doubt about that, the thing to do is to make it a matter of statute, imposing that duty as a statutory duty upon them.

Mr. LANHAM. I think that could be done.

I think that secrecy could be maintained without any trouble and that the departments could easily arrange that.

Now, let us see what among citizens are the defenses of prior discovery. Here you will see the Government is seeking further advantage over the citizen for whom the patent laws were enacted.

Now, let us first contemplate the lot of the inventor and its significance in this regard. Many of our most useful inventions come from the most humble sources. I am sure Mr. Federico could give you instance after instance of that.

Now, the inventor who goes without food and sleep and spends his earnings in pursuit of an idea is the one we want to protect.

The Government, under the present law, already has two strikes on him, and by this bill it seems to strike him out.

Now I want to quote from the hearings held in 1940 by the Committee on Patents in that regard. I may say that in these hearings I purposely tried, by reason of the fact that those were very ominous times, by my questions and observations to bring out as strongly as I could the Government's case, but we of the committee decided there were so many inherent weaknesses in it that we declined to report the bill.

Now, in the statement of Mr. Alexander Holtzoff, special assistant to the Attorney General, Department of Justice, on page 2 of these hearings he had this to say:

The problem which it proposes to meet is this: As you all know, under existing law any defendant in a patent suit may successfully defend the action against him if he can show that the invention which the patent purports to cover has been disclosed in a printed publication, before the date of the application for the patent or the date of the invention, or if the invention has not been disclosed in a printed publication but has been in public use. It frequently happens, however, that the Government is sued on patents in instances in which there has been no disclosure of the invention in a printed publication, but where the invention is shown or described in some document or some memorandum in the Government files.

Then on page 7, in further amplification of that, Mr. Holtzoff said: If the use has been a public use, that is a protection, but if there is an unpublished memorandum, for example, in the manufacturer's files, that would not be a defense.

But we want to put the Government in the position where the Government could use an unpublished memorandum as a defense if it desired.

Now, there is no possibility of a private citizen or private business doing that. The law protects the Government from the standpoint of secrecy and from the standpoint of its defenses if it will just file the applications that relate to things primarily useful for national defense. Mr. KEATING. In other words, if it makes them public?

Mr. LANHAM. No. An application for patent is not made public. I think you misunderstood me a moment ago. Applications for patents are kept secret.

Mr. KEATING. When the patent is granted, then, it becomes public? Mr. LANHAM. Yes; regardless of to whom it may be granted, because it is then published in the Official Gazette. You can buy a copy of the patent for a quarter.

Mr. KEATING. Then, unless the Government had some such protection as this, it would force them, wouldn't it, to file an application for a patent in the case of any invention which the Government wanted to exploit in any way?

Mr. LANHAM. Yes; but it would be kept secret.

Mr. KEATING. Until it became a patent.

Mr. LANHAM. When it becomes a patent, then they would have rights just as any other patentee would.

Mr. KEATING. Then in the meantime your position is that they could protect themselves by this provision allowing them to ask for an extension of time?

Mr. LANHAM. Of 3 years, which is extended and extended. They can do that. As Mr. Hackley said, all we need to do is furnish some personnel that will enable them to sort out these inventions that are primarily useful for national defense so they can apply for the patents.

We had better do that and give them the personnel than to subject the Government to suits for which it would have defense if it just complied with present law.

If the Government is going to be given this additional and unusual privilege against the citizen, let me inquire why it would not be logical to give the same advantage to big corporations that have rather voluminous files of ideas? If you did that, think how destructive it would be to small business. For instance, take the automobile. I think you will find that in some cases half or more of the things that are used in the manufacture of the automobile are supplied by small business on patents which small business holds.

Mr. KEATING. You do not seriously contend that there is no distinction between a large private corporation and the Government of the United States, do you?

Mr. LANHAM. No; I do not, but I think there is some analogy in the matter of patent principles, and they may have some ideas that are very useful toward national defense.

Mr. KEATING. Sure. But you are saying in the statement that you just made there that if we do this for the Government, then we ought to do it for a large corporation. You do not seriously contend that, do you?

Mr. LANHAM. What I am trying to contend is this: That the patentee has a hard enough time of it at best. There ought not to be given an advantage to the Government against him which it can already get by process of law under our statutes. The Government has these defenses

Mr. LEWIS. Under existing law?

Mr. LANHAM. Under existing law.

Mr. CHADWICK. Let's take a hypothetical case. The Government has a patentable idea which goes to the very foundations of security that they reserve in a special confidential security file. It is your thought, as I understand it, that they should file an application for that in the Patent Office to protect their rights under it, and that would give them all the protection that they need; is that right! Mr. LANHAM. I think certainly that could be arranged among the departments, Mr. Chadwick. It is just a question of where confidence

Mr. CHADWICK. It goes a little deeper than that. If I understand your situation correctly, you think the Government has every fair protection in its right under the law to file an application and then continue it from 3 years to 3 years or until such time

Mr. LANHAM. I think it could be adequately protected.

Mr. CHADWICK. I want to test that. Suppose they do have an idea of the kind I suggest, and which is protected in their security files. Is it not necessary, in order to get the advantage of the protection you say they have, for them to file an application for it?

Mr. LANHAM. Yes; if it is something that is patentable.

Mr. CHADWICK. Let me suggest that some gentleman from some very friendly country, like England, would like to find out what that patent is. Can't he file an application for something in the zone of that territory and force the Government to claim interference?

Mr. LANHAM. Might be forced into interference. They could not do it without such ideas themselves.