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session since 1878, when the first of them began to expire, but in the face of many expressions of policy from the committees, the number introduced has fallen to a handful in each Congress. Only twice, once in 1886 and once in 1943, has Congress extended any of these patents, and in 1928 some general legislation was passed which will be referred to later. (A number of design patents relating to badges of patriotic or religious organizations have been extended.) The effect of granting extensions of patents is frequently detrimental to industry because patents have a fixed term, and frequently developments are undertaken and industries built up in anticipation of the expiration of the patent term when the teaching of the patent becomes freely available to everyone. That general consideration makes any patent extension undesirable. To prolong a monopoly for a term in excess of 17 years would, therefore, be to profit individuals at the expense and to the detriment of the whole public which, as the source and protector of the grant to the inventor, has a right to expect that it shall be able, within a reasonable time, to enjoy the benefits of an invention that it has helped to make successful. The public should have ample notice beforehand as to the date when a patent shall expire, so that industry and business may adjust themselves to the conditions accompanying and following its expiration. If there be a probability of the extensions of thousands of patents—that is, thousands of monopolies—there would be also uncertainly and confusion throughout industry and a brake on progress. Those engaged or intending to engage in manufacture could make no definite plans for the use of inventions covered by patents subject to further prolongation and effectiveness. The following comments are made on the individual bills:
H. R. 65 corresponds to H. R. 3060 and S. 840 of the Seventy-ninth Congress. It 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 the patent was in force during the war.
This bill is not limited to those patents which were affected by the war in such a manner as to cause a loss to their owners. It includes all patents; those which were not affected by the war at all, as well as those for which the war caused greater profits to their owners.
H. R. 1984
This bill is practically the same as H. R. 2043 of the Seventy-ninth Congress. It provides for the extension 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, or other unforeseen circumstances.
It should be noted that such a theory goes back to the law as it existed prior to 1861 with a difference, however, in the terms involved and in the procedure, and this theory was rejected by Congress in changing the law.
In general, there is no more reason for Congress providing relief for patent owners who were unable to use their patents because of conditions growing out of the war than for it to provide relief for owners of other kinds of property, such as a factory, or a store, who suffered losses due to shortages of material and manpower during the war period. The adoption of a policy by Congress of insuring against war losses is not believed to be in the public interest, and especially the adoption of a policy of extending patents, for the reasons which have been mentioned.
H. R. 124
This bill is very similar to H. R. 1107 involved in the present hearings, and since the latter bill has been given more extended consideration, this statement will concentrate on it. H. R. 1107
This bill provides for the extension of patents owned by servicemen who were prevented by the war from exploiting their patents during military service. It is the same, with a small variation, as H. R. 6346 of the Seventy-ninth Congress as it passed the House of Representatives, and is very similar to a law enacted in 1928. The Patent Office has opposed legislation to extend patents to compensate for the war period for the reason that war inflicts damages upon everybody in a civilized community and that to single out a specific type of property owner, such as the patent owner, and give him relief from the war merely adds another injustice to the many injustices which war inflicts. The question raised by this bill is whether or not an exception should be made on behalf of persons who served honorably in the military or naval forces of the United States. Congress has made that exception in 1928 legislation. A great deal can be said for any proposal to extend special consideration to the servicemen who were deprived of their civilian opportunities during the war. This legislation, however, would single out only those servicemen who owned patents and would confer benefits upon them which are not available to men who were drawn into the military service from civilian life with great loss to themselves that cannot be repaired by this proposed statute. In other words, the effect of this bill would be to single out a specific loss suffered by a very few men engaged in the armed services and to attempt to compensate them for that loss. It obviously would give preferential treatment to servicemen who owned patents and those would be very few against the millions of men and women who were engaged in the military services of the United States. How few would benefit from this legislation is indicated, although very inaccurately, by the 1928 legislation. Under that statute only nine petitions for extensions were filed and of these only six petitions complied with all the terms of the statute and procured an extension. Of course, that statute was passed 10 years after the end of the war, and in that time a great number of the veteranowned patents had expired and could not be brought within the terms of the statute. However, it is extremely doubtful whether more than a handful of patents would be affected by this proposed legislation. The benefits would thus be accorded to only a few veterans and would discriminate against the great body of them. It is doubtful whether in view of that consideration, the legislation is desirable. Comments on details and language of this particular bill follow : Page 2, line 1. The fee specified at this point may not be considered sufficient in view of the present movement to raise all Patent Office fees now before this coin mittee. Page 2, lines 8 and 9. The phrase “at the time of the conclusion of World War II,” should be replaced by “on” since a specific date is recited and the inclusion of the phrase might be considered as a declaration by Congress having an unintended effect on existing statutes depending upon the termination of the war. Section 1 (E), page 2, line 24, to page 3, line 7, provides that the applicant for the extension must obtain the consent of licensees to the extension. If the patent is licensed, it is doubtful whether this consent can be obtained in all cases as the licensee would be adversely affected in some cases by the continuation of the license. Section 1 (F), in line 10 on page 2, provides that the extension applied for shall be “for a further term of twice or three times” the length of the military service. This is alternative and ambiguous. The corresponding bill of the Seventy-ninth Congress, H. R. 6346, was amended to read “for a further term equaling” the length of the military service. The final clause of section 1 (G), page 3, lines 18 and 19, is merely a recital and as pointed out above might not be considered equitable by some licensees. The intention of section 1 (H) is not clear. Section 3 permits the Commissioner to grant the extension or to refuse it but it is not clear whether he can grant it for less than the term requested. Section 4, lines 10 to 12, it is suggested that the words “the general issue, and having given notice in writing to the plaintiff or his attorney thirty days before, may” be omitted and replaced by “and” in order to conform to the new Rules of Civil Procedure. It is not possible to estimate the cost of administering this bill in the Patent Office if it is enacted, since this would depend upon the volume of applications filed. If the number were very small the work could be absorbed with very little increase but if the number were considerable a special staff would have to be organized and added to the Patent Office.
STATEMENT on BEHALF of AMERICAN BAR Association IN REGARD to H. R. 65,
These bills, which are directed to the extensions of patents by reason of World War II, are opposed by the American Bar Association. A brief résumé of the attitude of the American Bar Association regarding the extension of patents is as follow: In 1927, S. 4927 of the Sixty-ninth Congress was considered by the patent section. The object of the bill was to extend the term of patents which were issued to persons who had served in the military and naval forces of the United States during World War I. In the patent section committee report, it was stated: “* * * . Such extensions, while benefiting the individual patentees, would work great injury to others concerned in the industries which would be adversely affected. This country abandoned the plan of extending patents over 60 years ago, when the act of March 2, 1861, fixing the term at 17 years was passed. Since 1861 every patent granted has constituted a contract with the public whereby the patented invention was to become free to the public at the end of 17 years. “The bill proposes to violate that contract and take from the public rights which are inherent under existing law. “The bill contravenes in principle the traditional American doctrine that legislation should be alike for all classes. “The bill is at best class legislation and raises the question why, of the 5,000,000 armed men in the service, who were then and are now engaged in all fields of industry, only inventors are designated for special favor. “While the bill is doubtless intended to benefit those who served in the armed forces of the United States, actually it discriminates against the vast majority of them. It is reasonably certain that the bill will directly injure more servicemen than it benefits, in that the patent extensions provided for will adversely affect many industries.” The section chairman reported to the American Bar Association that the bill had the unanimous disapproval of the patent section, and this report was approved by the American Bar Association. Legislation extending benefits to veterans was passed, however, although it is understood that actually the terms of only six patents were extended under the provisions of the act. If only such a comparatively small number of patents should be affected if the proposed legislation is passed, the result would be trival. but if large numbers of patents should have lengthened terms, the disadvantages of such a result would be those pointed out by the patent section report of 1927. In 1935 the patent section passed a resolution disapproving bills to revive expired patents or to postpone expiration of live patents as against public policy. This action of the section was duly approved by the American Bar Association. In 1937, upon recommendation of the patent section chairman, the patent section action that certain bills having for their object the granting of special rights and privileges for individuals should be disapproved was duly concurred in by the house of delegates of the American Bar Association, acting for the association. In 1940 the house of delegates authorized disapproval of private bills to extend the lives of particular patents or copyrights. In 1943 the patent section unanimously disapproved bills providing for extension of patents, where the use of the latter was prevented by shortage of materials, labor, or transportation caused by war. In 1944 the 1943 action of the patent section was duly approved by the house of delegates. In that year the section also disapproved in principle specific bills to extend the terms of particular patents, but this action was not presented for ratification by the house of delegates by reason of previous action of the association which had already defined its position in opposition to the extension of a tents. p Again, in 1945 and 1946 the section reports mentioned bills for the extension of patents, but no action was requested in view of the established policy of the American Bar Association in opposition to extension of patents. Of the bills now immediately under consideration, H. R. 65 provides for a general extension of all patents: H. R. 124 and H. R. 1107 provide for an extension of patents of those who served in the armed forces during World War II; and H. R. 1894 provides for the extension of patents, not only of veterans, but of others whose use of the patents was interfered with by the war. Under our patent system, a contract exists between the patentee and the public, by which the patentee is granted exclusive disclosure of his invention, so that
when the 17-year term of a patent expires the public will be able to make use of the invention.
Any legislation to extend the term of patents would, therefore, directly react against the public interest by preventing the public free use of the inventions for the period of the extension. In industry constant improvements are being made which are themselves the subject of patents, but, of course, no such improvement can lawfully be used if the improvement itself infringes an unexpired earlier patent.
It is obvious, therefore, that if the term of the earlier patent were extended, the time within which the original invention could go into free commercial use by the public, and the time when an improvement thereon could be used at all, unless a license were granted under the earlier patent, would be delayed by the term of the extension.
Injury on account of the war extends to practically the entire population of the United States. It is impossible to compensate for every such injury. If this were to be done, we could not, for example, provide for increased taxation to meet the inevitable expenses of war. To single out patentees as a whole, or special classes of patentees, such as veterans, to be the recipients of special privileges, is unjust in principle and clearly contrary to public policy.
The development of industry is of vital importance to the prosperity of all our citizens. One of the means for fostering our industries is to give exclusive rights to an inventor for a definite limited period. This leads to progress in research and invention, to the ultimate benefit of the public, but to depart from the fundamental and attempt to extend special privileges to patentees by granting extensions of the period of exclusive use would be not only unfair to those who are not patentees, and whose injury on account of the war is not because of their inability to use patents, but would tend to prevent the ultimate object to our patent system, which is to put all inventions in the public domain after the expiration of the 17-year period of exclusive use, as provided in the original contract between the patentee and the public.
The American Bar Associaion disapproves in principle any extension of the terms of patents as against public policy, and therefore opposes the specific bills H. R. 65, H. R. 124, H. R. 1107, and H. R. 1894 of the Eightieth Congress. Respectfully submitted.
HENRY M. HUXLEY,
American Bar Association. MAY 1, 1947.
MONSANTO CHEMICAL CO.,
St. Louis, Mo., April 25, 1947, SUBCOMMITTEE ON PATENTS, HOUSE JUDICIARY COMMITTEE,
Old House Ofce Building, Washington, D. C. GENTLEMEN : I fail to see the necessity of legislation directed at the wholesale extension of the life of patents that expired during the war period, I believe that legislation in this direction is contained in H. R. 65, H. R. 1107, and H. R. 1981.
From my experience with patents in the chemical industry, I know of no patented development which could not have been exploited during the war period. If, however, there are specific isolated cases to the contrary, then legislation may be considered with respect to these specific instances. Even in these isolated cases, it should be necessary to make a showing that commercial operation was in progress before the war and that the war stopped further commercialization. Very truly yours,
J. RUSSELL WILSON, Director of Patent Department.
STATEMENT OF HARRY H. HITZEMAN, PATENT LAWYER, CHICAGO, ILL. This committee has before it for consideration four bills for the extension of patents: H. R. 65, H. R. 124, H. R. 1107, and H. R. 1984. The general purpose of all of them is the same, but H. R. 1984 is far broader and more comprehensive than the other three.
H. R. 1107 provides only for the extension of patents to “any person who served honorably in the military or naval forces of the United States at any time between December 7, 1941 and September 2, 1945,” and provides for an extension of the patent for “a further term equaling twice or three times the length of his said service in the military or naval forces of the United States between the dates of December 7, 1941, and the date of enactment of this act.” Other specific details in the proposed bill clearly define it as a bill solely to benefit a veteran of World War II. H. R. 124 is substantially similar to the above bill, differing only in verbiage in some parts and providing for extension of patents only for persons who served in the land or naval forces between December 7, 1941, and the date of the termination of hostilities. H. R. 65 provides for the extension of all patents unexpired on the date of enactment of this act “for a period equal to the period beginning on December 7, 1941, and ending on the day of the termination of the war as proclaimed by the President or declared by concurrent resolution of the Congress.” H. R. 1984 provides for the extension of patents whenever the use of the same has been prevented by war or other causes. I respectfully submit that because of its broader aspect H. R. 1984 should be enacted into law. H. R. 1107 is strictly limited to veterans and is quite possibly unconstitutional because it is class legisiation. Furthermore, no equal justice to all could possibly come from the enactment into law of this bill. Persons other than veterans suffered losses during the war by reason of the fact that they were unable to work their patents. Persons in all walks of life were restricted in what they could and could not make by reason of priority regulation of materials for war purposes only. H. R. 65, which provides for a general extension of all patents for the period of the war, is inequitable in that thousands of patented articles were manufactured for war purposes during the entire period of the war, so the owners of these patents suffered no losses on account of the war, whereas the manufacture of thousand of other patented articles was prohibited during the war and the owners of these patents suffered real losses in the 17-year period of their monopoly. Many, many patented articles only become a source of profit to the inventor after many years of time and money spent in getting the invention before the public. To refuse to extend patents the working of which was prohibited for the last 5 years is, in effect, cutting down the length of the patent to 12 years. I speak not as a representative of any individual or corporation client, but for inventors as a whole when I seek some opportunity for them to realize on their investments in patents now that the war has been won. While some people feel that the inventor, as an individual, is a thing of the past, it is my firm belief that from unknown individuals, as in the past, will the inventions come which will help us in winning the peace, and, if necessary, again assist us so vitally in fighting and overcoming aggression. In my own humble practice I have a client, a streetcar conductor, who has developed an invalid's chair which was pronounced by an official of the Colson Co., manufacturers of hospital and invalids' equipment, “20 years ahead of anything they had seen.” The chair is advantageous in that it locks to the floor automatically when you sit upright, and when you lean back you can roll yourself whenever you please. And his inspiration was an invalid mother who felt so helpless because somebody was always waiting on her. The Goldberg patent on a lubricating fitting was the nucleus of the vast StewartWarner Corp. Alemite fitting and lubricant business. And he invented this while working as a machine in a factory. And I remember Amelia Earhart's great tribute to inventors when she testified before the Senate committee investigating Senator Cushing's death in a commercial airline crash, and said: “Aviation owes so much to the humble inventor, those fellows who starve and work in cellars for the benefit of humanity.” There are thousands of these inventors and owners of patents who have spent years of their life experimenting and perfecting and promoting their inventions. And when a war or other emergency comes along, automatically the same Government which contracted with them for a 17-year monopoly cuts down the length of time to 12 or 10 years. We all know that the principal object of seeking a patent, and, of course, the protection secured, is to prevent others from making and selling the same thing. Every patent grant is to “the inventor, his heirs or assigns, the exclusive right to make, use, and vend the same invention throughout the United States and the Territories thereof.” And the term is for 17 years.