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Mr. BRYsoN. You speak for the Grant bill? Mr. HITZEMAN. Sir? Mr. BRYsoN. Do you speak for Congressman Grant's bill? Mr. HITZEMAN. No. Stratton's. Congressman Stratton is before a banking committee. Mr. BRYsoN. Well, Congressman Grant would extend the protection to all patentees. Mr. HITZEMAN. I object to his bill for this reason: There are thousands of patents, and I pointed that out in my statement, which were worked through the war because they pertained to articles that were bought in vast volume, so the patentees of those articles made a lot of money out of them because of the war. But there were thousands of other items that could not be made because of restrictions of materials. We all know that you could not buy washing machines, radios, alarm clocks. The owners of those patents suffered. That is why I think his bill is too broad, and I think, referring to Congressman Stratton's bill, where it says “upon a proper showing that injury has been done” and that could be done upon the form of petition to the Commissioner in the manner in which the Patent Office would set up, and the Commissioner would review it the same way they review applications for patents, and if they feel you have not made a proper showing, relief is denied. I mean, it would function right in with the general functioning of the Patent Office as it is. Mr. BRYsoN. The burden would be on the patentee? Mr. HITZEMAN. That is right. The burden of proof would be upon the propounder. I have nothing further to say, gentlemen, unless you wish to ask me some questions. Mr. KEATING. Is there any procedure now at all for extending the life of the patent under any circumstances? Mr. HITZEMAN. Yes, there is. Unfortunately, it takes a private bill before Congress, and we all know how difficult it is to push a private bill through the Congress. Mr. KEATING. There is no procedure in the general law, then? Mr. HITZEMAN. That is right. Mr. KEATING. In other words, this Stratton bill procedure has no parallel under the existing law? Mr. HITZEMAN. That is correct. Mr. KEATING. Is the petition for a patent, for the issuance of a patent, addressed to the President of the United States? Mr. HITZEMAN. Not now, sir. It is addressed to the Commissioner of Patents. Mr. KEATING. I wonder what is behind the President's getting into this bill? Do you know? Mr. HITZEMAN. No; except that he would appoint, perhaps, or direct, the Commissioner of Patents to assume these duties. After all, it is an executive function of the Government, and the President is the head of that. Mr. KEATING. Now, when the petition is refused under this bill, the petitioner may appeal to the United States Court of Claims. Now, under present law, am I correct, if a patent is refused an appeal lies to the Board of Customs and Patent Appeals?
Mr. HITZEMAN. The Court of Customs and Patent Appeals. It is the court of last resort for patents. Mr. KEATING. Do you know why the United States Court of Claims is the court referred to in this bill? Mr. HITZEMAN. I do not, but I would suggest that perhaps it is for the simple reason that every petition for an extension would be in the nature of a plea for relief and they all got to the Court of Claims now. Mr. KEATING. This is an appeal, however, from a ruling? Mr. HITZEMAN. From the }. Office. There is nothing confusing about it, in my opinion. Mr. CHADwick. Mr. Hitzeman does not your position, if I understand it rightly, lead you into a curious dilemma that it is unconstitutional to differentiate between the rights of a veteran patentee and all other patentees? Mr. HITZEMAN. Yes. Mr. CHAdwick. But it is perfectly proper for us to attempt to cushian the shock of war with respect to all patentees, disregarding the fact that the entire national community suffered from the shock of war? Mr. HITZEMAN. I do not say patentees. I say patentees or owners of patents. Mr. CHAdwick. Well, we will group them together. Mr. HITZEMAN. And I think I can explain that, too. I remember during the war the Army took over the Stevens Hotel in Chicago. They took over 40 acres of my brother-in-law's farm out in Du Page County for an airfield for the Navy to practice landing. They paid for all that. When they left the Stevens Hotel after using it for 3 or 4 years, they decided, “We owe you so much, so we will pay you.” All right. I am a patent owner. I have a contract with the Government. I paid $60 to get a patent, in actual money and I get a grant from the Government which says that for 17 years I have the sole and exclusive right to make, use, and sell a certain article. The consideration for that is that I have conceived something and after 17 years it is dedicated to the public. So now along comes a war, or other emergency, and I am forbidden by some other act of the Government, like restriction on the use of materials, from making and selling the article that I have a patent on. Now, actually, that is a violation of a contract right between the Government and the individual. Do you see any differentiation there? Mr. CHADwick. I do not want to argue the point. I do not see any differentiation which cannot be extended to cover almost every other patentee for what I call the impact of the war. Mr. HITZEMAN. My simple suggestion is that the deprivation of every other property right has been compensated for to the people by the Government, like the use of a hotel, or sequestering your yacht, or something. Why should it not be done in connection with patent owners, too? Mr. LEwis. Do you have a question, Mr. Bryson ? Mr. BRYsoN. No questions. Mr. LEwis. Are there any more questions? Mr. CHAdwick. No. Mr. LEwis. That is all.
Mr. HITZEMAN. Are you finished with me, gentlemen?
Mr. LEwis. Yes.
Mr. HITZEMAN. Thank you, sir.
Mr LEwis. Unless you have something further to offer, Mr. Hitzeman, we shall hear from Mr. Federico, from the Patent Office.
STATEMENT OF. P. J. FEDERICO, LAW EXAMINER, UNITED STATES PATENT OFFICE
Mr. FEDERICO. I want to explain the absence of the Commissioner of Patents from this hearing. He would have been greatly interested in being here and presenting the views of the Patent Office and his own views, but he is now recuperating from an operation in the hospital in Chicago and consequently has not been able to attend. I was talking to him on the phone yesterday in connection with this hearing. The statement that I have is submitted at the request of the committee, received several days ago, and lack of time prevented the Patent Office or the Department of Commerce from ascertaining through the Bureau of the Budget the relationship of this legislation or this statement to the program of the President. The statement presents the views which have been presented by the Commissioner of Patents and also the former Commissioner Öf Patents on identical or similar bills. The four bills all relate to extensions either generally of all patents of certain classes of such patents. The position of the Patent Office in the past has been opposed in principle to proposals for extending the term of issued patents. This position has been based upon the policy of Congress shown by their activity over a long period of time, as well as upon other considerations. The term of patents under the first patent law, in 1790, was fixed at 14 years. This 14 years was a derivation from the English custom, where 14 years had probably been adopted as being twice the term of an apprentice. That still does not quite explain it but it pushes the unknown factor one step further back. The inventors here under the early law found 14 years too short in many cases and petitioned Congress for individual extensions, which were granted by special acts. These individual extensions were quite common at this time. In fact, they were so numerous that when the patent law was revised in 1836, Congress enacted a general provision, still leaving the term at 14 years, but providing that any patentee who through no fault of his own, due to unforeseen circumstances, and so on, expressed in general terms, had not obtained adequate compensation for his invention, could apply to the patent office and obtain an extension of another 7 years. - This was the law from 1836 to 1861. There was great opposition to these extensions. They were not ...} satisfactory in many cases, and there was quite an agitation to abolish them. A bill in 1861 was introduced to abolish this privilege of extension, and it passed both houses but in a conference committee—there was opposition, of course, to abolishing the extensions—but in a conference committee, the result was the abolition of the extension and changing the term to 17 years. It is assumed that this 17 years was a compromise between those who wanted the 14 years plus 7 years extension and those that wanted the 14 years only.
That explains how the 17 years got into our law.
Mr. KEATING. Now, that 14 years lasted 71 years, and the 17 years has lasted longer than that?
Mr. FEDERICO. Yes.
Mr. KEATING. Should we consider changing the 17-year period? Is there a body of feeling in this country one way or the other on that subject ?
Mr. FEDERICO. Well, the only strong feeling for changing the term is to change the term only in certain particular cases, when advantage is taken of a long period of pendency in the Patent Office.
Mr. KEATING. In other words, you think that 17 years is not only the fixed and arbitrary period but it is just about the right one?
Mr. FEDERICO. It is very curious that the laws of most countries have been swinging around a mean of 17 years. A good many of them that were 14 or 15 have been changed during the last several dozen years to 17 or 18, and a few of them have 19 and 20. A few still have 14 and 15 but they all seem to center around that particular point of 17 years, although only two or three countries have the actual figure of 17 years. Now, when the term was fixed at 17 years in 1861, these patents began to expire in 1878.
Following the older theory of extensions by special acts, Congress was presented with numerous petitions for private bills to extend particular patents. These were very numerous. The reports of the hearings of the appropriate committees of this time are practically all concerned with these private bills to extend individual patents, but with the 17-year patent, Congress adopted a more or less fixed policy of not extending any of them.
Since that time, it happened only twice; once in 1886 and once in 1943, that one of these 17-year patents was extended.
Mr. KEATING. Those were private bills?
Mr. FEDERICO. Yes, they extended the term of a particular patent for 7 years. There is a story behind that patent. 'If you want me to mention it, I will.
Mr. KEATING. I think it is interesting. · Mr. FEDERICO. But it was just a bill extending the duration of this patent for 7 years.
Of course, a different policy
Mr. Lewis. That is the case where the judge peremptorily decided against a patentee. Is that it?
Mr. FEDERICO. Yes. The representation to Congress in that connection was that due to the corruption of the judge the patentee had been deprived of whatever compensation he should have received over a period of years, roughly, seven, but not quite seven, and the extension was granted in a sense to compensate for this corruption in the Government itself.
Mr. KEATING. Unfortunately, it was in the State of New York that that corruption took place.
Mr. FEDERICO. Yes.
Mr. BRYSON. And that decision or that extension bill, was used somewhat as a precedent for the extension to the veterans after World War I, was it?
Mr. FEDERICO. Oh, no. This particular bill was in 1943.
Mr. Bryson. But that might be used as a precedent for the proposed bills now!
Mr. FEDERICO. There are still better precedents than that for the veterans' bills.
Now, Congress adopted a different policy in connection with a series of design patents, designs for badges of patriotic and religious societies. These patents are granted for 312, 7, or 14 years, and there have been a dozen or more of them extended in the past 50 years. Those are considered more or less a private matter because they only deal with the particular emblem of the society, and are not considered of general importance.
I may say that the question of the term of the patent is the only limitation and in the Constitution on Congress' power to grant patents. The phrase used is, “The Congress shall have power for limited times," so the time of a patent must be fixed. The Constitution does not prescribe what the time should be.
During the early period, there were numerous extensions granted by private acts, to particular individuals who applied to Congress, for one reason or another—in some cases, perhaps for no reason whatsoever. The question of constitutionality which was mentioned, in every case in which it came up, was always decided in favor of the power of Congress. Congress has practically unlimited power in legislating with respect to patent matters, the only limitations being the wording in the Constitution.
I shall not read parts of the statement mentioning the principles on which the Patent Office is opposed generally to extension bills, but will go to some of these particular bills.
H. R. 65 corresponds to H. R. 3069 and Senate 810 of the Seventyninth Congress. This bill provides for the general extension of all patents which were in force during the war for a period equal to the duration of the war, or in the case of patents which were granted or which expired during the war, for a period equal to the time that the patent was in force during the war.
There are no restrictions, no limitations, just a blanket extension of all patents that were in existence during the war period. Of course, administration in a bill of this kind would be nonexistent, because the law automatically would extend the term of all the patents. Roughly, there might be more than 100,000 patents that would be involved.
The bill is not limited to those patents which were affected by the war-where the patentee was unable to operate because of war conditions_but includes all patents, even those where the war may have caused the patentee to obtain greater profits than he would have otherwise.
H. R. 1984 is practically the same as H. R. 2013 of the Seventy-ninth Congress. It provides for the extension of the term of any patent when the patent owner had not obtained a reasonable reward or compensation for his efforts due to the war, periods of national emergency,