That is another measure designed to protect honest, legitimate business. So opponents mention it, surreptiously injecting it into this hearing where we are trying, by the protection of these textile designs, to protect both in the manufacturing field and in the retail field, the honest, legitimate business interests of this country.

Thank you very much.

Mr. LEWIS. Thank you, Mr. Lanham.

Now, Mr. Fenning, please.

STATEMENT OF KARL FENNING, ESQ., PATENT LAWYER,
WASHINGTON, D. C.

Mr. FENNING. Mr. Chairman, and gentlemen, I hesitate to come before you at this late time in the afternoon, but I am here.

I want to talk a few minutes about some technical, legal phases of matters which have been raised. Possibly I would do better if I just threw myself open to questions. But I want to call your attention to one thing.

The representatives of the New York Patent Law Association, two of whom have appeared before you, both objected to this bill, saying it is something new, it is not patent, it is not copyright, it is not like anything they ever heard of, and therefore, it must be wrong.

The principal answer to that, so far as I know, is that neither patents nor copyrights, nor unfair competition, nor the Federal Trade Commission, nor anything else gives to the designer of textiles the protection which he merits.

I do not hesitate a minute to say that if what we have does not do what is necessary, then we must have something new and this bill is new. It seems to me it is a great virtue.

Each of those men objected to this bill as being a hybrid. It is a hybrid. It picks the virtues of both the patent system and the copyright system, as I see it, and endeavors to mould them in a way so that they are practically applicable to textile designs.

Note, if you will, one of the gentlemen said, "We don't want this bill. They should all be protected under copyrights." The other gentleman said, "We don't want this bill. They should all be protected under patents," knowing that neither will give the protection. Copyrights cannot give the protection.

One of the objections made here is that we require a deposit before publication of a new textile design. That is done intentionally. If we say to a man when he gets out something that he imagines is new or thinks is new, or wants to call new, the first thing for you to do is to put that on a textile and mark it copyrighted and sell as much of it as you can with your copyright notice on, he is deceiving everybody into thinking they get something new.

Therefore, we say, "Before you publish anything, before you put your design on textiles, tell us what you want to put out, and we will make a search. If we find it new, we will then let you go ahead, and mark." You can never pull back the thing which has been marked improperly.

In patents that is done in just the same way. We do, to be sure, say in the patent law that a man may use in industry, manufacture and sell his invention a year before he applies for a patent, but we specifically say that he cannot mark that patent until the patent issues.

That is done for the experimental purposes to see chiefly whether it operates, whether it works. With a design, there is no question of it working or not, so we do not have to have that experimental period.

I think, therefore, that we are justified in saying that we have something here which is new and which is virtuous for that particular reason, and has new features to it, which are put in on purpose to take care of specific conditions which we have before us.

Something has been said about the attacks, the disturbance which will come to the retailer by going to him and saying, “You are infringing our design.”

At the present time, many patents have been issued on the construction of pockets in clothes, for instance, or the construction of a collar for a coat or a shirt, or the construction of cuffs, or the construction of sleeves, and other wearing apparel. The owner of any of those patents can with impunity go to any man who has a dozen suits of clothes for sale and say, "You are infringing my patent and you must stop or I will bring suit against you."

It is not done, by the ordinary man, any more than this foolish, improper, or unfair, dishonest demand for information as to alleged design infringement will be made by the ordinary man.

Of course, you are always going to find crooks in everything. You never can make any law which will not allow a man who is crooked enough to take a little crooked advantage in the beginning and I think you have got to weigh to determine whether there is more chance of taking care of an honest man than there is of giving a crook an opportunity.

We issue paper money, which gives the counterfeiter an excellent opportunity to counterfieit money, and there are people who do it; and some of them get away with it for a considerable period and some of them are never caught. But we do not abolish money for that

reason.

Mr. LEWIS. Mr. Fenning, you were here last summer at all the hearings, I believe. Is that not right?

Mr. FENNING. Yes, sir.

Mr. LEWIS. Have you heard any reason given why this bill should not be reported that was not advocated last summer?

Mr. FENNING. I have heard nothing new. Some reasons have been elaborated upon, made a little more prominent, but nothing new. Mr. LEWIS. But nothing new. I have heard nothing new.

Mr. FENNING. One of the things that has been attacked is the idea of taking a design, say, of wallpaper, and transferring that to a fabric.

Mr. LEWIS. We had all that argument last summer, do you remember?

Mr. FENNING. Yes; we had it then. You remember Miss Blunt said it is not a question of copying; it is a question of adapting. Again, remember this, if you will. If a painting, for instance, has a scene, you can look at that painting, sit down and write a description of it which is the same idea. You are still feeling the artist's idea; you can take that description and copyright it although based on the artist's idea.

Or if you are inspired to write a poem on the idea from the picture, you can write a poem on that same basis and get it copyrighted. There is no reason, when you transfer that into the new fabric field, why you should not get protection.

You have done more than copy. That is so with respect to every patent. Edison invented the electric lamp. He did not start from a piece of dirt and make the electric lamp. He had a hundred men who had done one little thing and another little thing and another. He assembled them and accomplished his purpose. He got his idea from somebody else, but he carried it out in a new way.

On the matter of infringement, it has been suggested here that when we say "substantially," it is a weasel word and should not be used, but the classic definition of patent infringement is doing substantially the same thing, in substantially the same way, by substantially the same means. And the Supreme Court, time and again, put "substantially" in, and said, "You are not exactly like this man, but substantially like him; therefore, you infringed."

That is all we are trying to do here.

Mr. LEWIS. That is very well known, the meaning is well known as a legal proposition.

Mr. FENNING. Quite.

The suggestion has been made that there is nothing novel; no design is ever new. You must remember, however, that the present design-patent law says that the only thing that can be given a design patent is something new, just the same definition that we have here. The patent law adds to it, not that it is an article of authorship, but that there is invention involved in it.

We are doing by this bill-we are giving to the public something more than the public has now. If a design-and there are designs which the Patent Office says require invention to produce, and there are designs which the courts sustain as saying that they are inventions-goes into the Patent Office on a textile, it procures a 14-year protection. If it were shifted to copyright, it would receive a 56-year protection.

We are abolishing patents with respect to designs and saying that under this registration scheme, we will give you 1-year protection or 4 years more if you pay an additional fee. We are cutting down the period substantially.

At the present time, a man who gets a proper inventive design on textiles, may go into the Patent Office, get a 14-year patent and get an injunction against, not merely the manufacturer, but the retailer. He may go into a dry-goods store and get an injunction against the drygoods salesman, against the converter, and all the middlemen, under the patent law at the present time, and each one of them must contribute.

In this bill we are omitting the retailer, not as a matter of justice but as a matter of expediency, saying that the retailer is in a hard situation; he may buy something, thinking that he has the right to buy it, and maybe he is justified in buying that thing until he is told he must not buy any more.

Mr. LEWIS. What do you say about protecting the wholesaler? Mr. FENNING. I say the same thing for the wholesaler. It is not a matter of justice for the wholesaler. Let us look at a man who produces a design, who puts the fabric out. It is a hit. It is popular.

That design is protected by registration under this bill. Someone else almost immediately copies that design. He knows he is going to get into trouble.

There is no injunction issued. He runs over immediately and turns his large supply over to a wholesaler. The retailer won't buy it in such quantity, but he turns over his entire supply to a wholesaler. Then he is sued, injunction issues and it is proposed that the wholesaler be allowed to go free and sell all he has.

If the man who made the original goods is a small manufacturer, as he frequently will be, his business is ruined, because the wholesaler can sell all of his stuff with impunity.

It is bad enough to let the retailers through the country do it. Maybe it would seem reasonable to you to relieve the wholesaler, but it seems to me you have gone far enough when you are relieving the retailer. The wholesaler can find out what he is buying. If he is buying an old design, the man who produces that old design and sells it to the wholesaler can show him something old that he has copied. If it is a new design, the man who manufactures the new design can procure a registration of that design and if he procures registration of that design, that naturally is prima facie showing that he is not infringing a previous design.

The question of search, I think, Miss Blunt has fully covered. It is entirely possible, Mr. Warner, the Register of Copyrights, who has given a great deal of thought and attention to this, is entirely satisfied that he can make the search, that he can make the search in 7 days and he can make money for the Government on the fee which is provided.

Mr. LEWIS. Yes; I recall the testimony.

Mr. FENNING. I do not know if it is necessary for me to say anything more to you. If you have any more questions, I would be glad to answer them.

Mr. CHADWICK. My only question is my concern about the wholesaler. There are between the case of one wholesaler buying an entire consignment of a manufacturer's goods and the classification of retailer, a large number of wholesalers whose equity is as good as the retailers. Mr. FENNING. Yes. You have to weigh that. There has to be a line somewhere. Just as on the question of whether or not you are going to give a new registration to a design which is now in existence but has never been used.

Mr. LEWIS. Do you have any objection to the inclusion of the exemption to the wholesaler as well as to the retailer?

Mr. FENNING. None, except as a matter of equity. It seems to me improper. If it seems to you desirable to do, then it seems entirely reasonable.

Mr. LEWIS. It seems to me the wholesaler is not a producer and is not responsible for the original infringement, if there is one, that he should be protected as well as the retailer.

Mr. FENNING. It would be very simple to do that, and I suppose there would be no real objection to doing that.

Mr. LEWIS. Simply add the word.

Mr. FENNING. On page 6, line 15, change the clause to read:

except that a wholesaler or a distributor at retail to the general public * that, it seems to me, would accomplish the purpose.

Mr. CHADWICK. We have been told there are practical reasons why this bill should not be applied to one extensive and very responsible field of woolen manufacturers.

Mr. FENNING. Yes.

Mr. CHADWICK. They have suggested an amendment, the effect of which is practically to release them from the act.

If they do represent, let us say, a majority of opinion of their industry, and object to being included, and if the vital purpose of the act is to protect against another kind of design entirely, the thought we have seen illustrated here, what would be the fundamental objection to accepting, in effect, their amendment?

Mr. FENNING. I have two objections. First, the amendment which they propose is not limited to wool. Rayon and cotton are made on harness looms also. Second, if that amendment is put in at the place they propose to put it in; that is, if the definition of textile is changed to be limited to exclude harness-made materials, then the final section of the bill, which cancels the design patent law with respect to textiles, will still remain in force with respect to material made on harness looms.

I imagine that it would be extremely undesirable to have one sort of textile protected in the Patent Office and another sort of textile protected in the Library of Congress. It would be displeasing to everybody, including both the Library of Congress and the Patent Office, as well as the public, if such a change were made.

If such change is to be made, it seems to me the place to make it is in section 2 or some such section, which defines what shall be registered; section 2, for instance, and specifically say:

of

Provided, however, That no textile design shall be registered if it consists

whatever it may be, and leave the definition alone, so as to take care of the elimination of the double protection.

Mr. LEWIS. What about mixed textiles? There are some textiles that are partly woolen and partly cotton. Where do they fall?

Mr. FENNING. How will the Patent Office know? How will the Register of Copyrights know?

Mr. LEWIS. I do not see how you can exclude any textile design, if this is a textile-design bill. I do not see how it is practical.

Mr. FENNING. I do not think so, but as I understand it, the purpose of that proposed amendment is not to exclude wool or mixed, or anything else, but it is to exclude certain types of design. For instance, designs made up of stripes or polka-dots, things that are common, well known, have always been used. It is to avoid the possibility of the Register of Copyrights, when he is asleep some day, passing out a registration on something which is old, and everybody knows is

old.

On that line, it seems to me, if it is to be approached, it should be approached not by the way it is manufactured, nor by the loom on which it is made, but by the appearance of the material.

But even then, the bill will have this great defect-if you make something on a harness loom, you will get something which has a very definite appearance. You can look at it, and it will have a design or a pattern or something of the sort in it. Under this amendment proposed, if that happens to be made on a harness loom, it will not be