SEC. 2. This Act shall take effect on approval and shall remain in force until the expiration of the emergency declared by the President of the United States to exist on September 8, 1939, but not to exceed a period of two years from the date of approval.

Mr. SCOTT. May I ask a question of my fellow Philadelphian?

I notice that you have left out the phrase, "as required by the public interest."

Mr. JACKSON. Yes; because we agree with Mr. Eyre's suggestion, that that would let in almost anything conceivable in the way of a legitimate action of the Federal Government.

Mr. SCOTT. I mean, it refers to a specific manufacturer, and it might be a wise provision and might prevent an injustice.

Mr. HARRIS. Do you feel that this act as suggested here by you as a substitute; do you think that this is desired and needed at this time?

Mr. JACKSON. My suggestion would be that it would be better to adopt Mr. Eyre's suggestion, to put in the subcontractors specifically, or leave the matter to the discretion of the court in its ordinary equitable jurisdiction.

The CHAIRMAN. Do you think, Mr. Jackson, that from what you have heard in these various press comments that aliens are tying up defense trades, that there is any interference with the progress of the Army or the Navy or any Government work whatever?

Mr. JACKSON. I think that we would have seen it already in our very active defense activities in Philadelphia, where almost every company is working on defense contracts, and we have never heard of any such instance.

The CHAIRMAN. I have not, and I must confess again that I have asked for it, and I believe on behalf of the committee we have emphasized that, and I believe that Major Vanderwerker, you have been before this committee on numerous occasions and been asked the question, whether or not the War Department has had any knowledge of any interference by any alien, giving away any of the secrets of the manufacture of any articles used in national defense, and you have repeatedly, as I said, answered that you have no such information. Major VANDERWERKER. I said, Mr. Chairman, that such had never been brought to my attention, nor have I heard of it at all in the War Department.

The CHAIRMAN. And you would hear of it in the War Department if there was any such thing going on?

Major VANDERWERKER. I think that I probably would, sir; yes, sir. The CHAIRMAN. That same thing applies to you, Commander, does it not?

Lieutenant Commander CALDWELL. Not necessarily.

The CHAIRMAN. You would not have knowledge, would you? Of course, I realize that you have not been in the Department-that is, you have been in the Department but not in this capacity for some time. Your predecessor, Mr. Jones, was here on many occasions before this committee and expressed himself just in the same manner in which the major just has.

Lieutenant Commander CALDWELL. I would like to be in a position to corroborate that, and, of course, I can. So far as I am concerned, I wanted to say that I have not had the same opportunities in the Navy Department which Major Vanderwerker has had in the War Department. I would not go so far as to say there had not been instances of

it, nor would I say that there are none at the present time. I think that that is a question that perhaps goes further afield than just the Patent Division.

There is a question here which involves something which may not come to us in the Patent Division excepting in a specific instance. I would not want even to state that there are not instances of this matter which you have brought to the attention of the committee. Mr. HARRIS. If there are such examples, who would know about them?

Lieutenant Commander CALDWELL. I should say that perhaps the Assistant Secretary of the Navy would be the official who would have that particularly in mind. It would be brought to his attention specifically and particularly.

Now, of course, these situations are general, and I do not want to take exception to anything that Mr. Jackson has had to say here. His statement has been rather general, and where he may not have had any particular case brought to his attention, I do not think that that is in any way conclusive. I would not want to make any statement which would indicate that there was or was not that question present in the Navy Department.

I would suggest that, if it is a pertinent question, other representatives from the Navy Department other than myself might be called.

The CHAIRMAN. Would you be kind enough to make an inquiry of the head of your Department, who would have knowledge of that, and I would ask the same thing of the major, so that when we go on here again at our next hearing we might get some actual information from the head-or possibly invite the heads of the Army and the Navy in here.

Lieutenant Commander CALDWELL. I think that that would be a good suggestion. I would be glad to do anything that I can, Mr. Chairman.

The CHAIRMAN. Have you anything further, Mr. Jackson?
Mr. JACKSON. No.

Mr. MYERS. I think as a fellow Philadelphian with Mr. Scott, that you all know the fame of the Philadelphia lawyer, and I think that Mr. Jackson has certainly upheld the traditions of the Philadelphia bar, and I wish to compliment him on his very broad and comprehensive statement, and I think it will be of great help to the committee.

The CHAIRMAN. I also appreciated Mr. Jackson's appearance here. I believe he is a man who has a great deal of ability, and we recognize

him as such.

Mr. SCOTT. I want to join in any praise of Philadelphia, or Philadelphians. I would not want to be left off the record.

The CHAIRMAN. Now, we have had Philadelphians, and while we are in Pennsylvania we might as well hear from Pittsburgh.

STATEMENT OF BAYARD H. CHRISTY, PRESIDENT, PITTSBURGH PATENT LAW ASSOCIATION, 1621 FARMERS BANK BUILDING, PITTSBURGH, PA.

Mr. CHRISTY. Bayard H. Christy. I have the honor to be the president of the Local Patent Law Association in Pittsburgh.

I shall not detain the committee with repetition at great length of what has been said. I should like to say that what Mr. Eyre has

said, and what Mr. Jackson has said, fall entirely in line with the thinking of the officers who have been in conference, the officers of my local association, on this bill.

Our Government has a machine; it is the machine for this matter of injunctive relief. The machine has been tested by time, and it lies in the discretion of the chancelor whether an injunction shall be granted or denied. That discretion is exercised, and it will be found by looking at cases, that injunction has been refused in times of national emergency, in just such a situation as this.

Now, the proposal is to set that machine aside and put in its place another machine, that lies not in the territory of the judicial branch of the Government, but in the executive branch, and it may be wise, and it may be prudent to do so. I have not the knowledge, I have not the experience, to say that it might not be an expedient thing to do. All I am here to say, sir, is that I think that we should proceed with caution to set aside a proved instrument, and set up in its place an instrument that has not been tried, and that may itself in turn work injustice beyond what is commensurate with its gains.

I had in mind particularly the point that Mr. Jackson has been making, that while we all of us desire to see the Government unrestrained in its meeting of the emergency, we all agree about that, how about the outsider? If a particular patent is granted in sanctity, in freedom, let me say, how about the outside customer, not the governmental?

May he go on and may the owner of the patent be left to a question. of recompense when it is all over?

The whole system of the patent law rests upon the monopoly, or let us say the grant which says to the man who has made the invention, for 17 years, the invention is yours, and under that provision the life of a patent lies, centers in the matter of injunction.

Now, when a hand is laid upon the matter of injunction, a hand is laid upon the very life and existence of the patent, and the thing should be handled with the greatest discretion and greatest care and prudence.

I should like to say that if this bill were amended in the respects that have been pointed out, leaving out on page 1, striking on page 1 the passage that begins in line 7, "or the chief officer" and continuing in line 8, to the comma following "the United States," and on page 2, beginning in line 1, "or required by the public interest or public safety,' were stricken, the officers of my organization would certainly not be here to say that the bill should not be passed.

They are not in that position. They do not assume to be in such a position. The intimation has come to me, sir, and perhaps I should not enlarge upon this greatly, that an effort would be made to enlarge the bill, not only leaving it as it is, and subject to enlarged construction, but actually enlarge the bill, both in the matter of time and in the matter of subject matter, so that it should become a general provision, operative upon all subject matter, and to an indefinite period of time, indeed, as might be contemplated, permanent.

That would have an effect in the patent system of what we speak of as a compulsory license, a compulsory license provision has never been included in our law. It is in the law of Great Britain, I believe, and in the law of Canada.

Bills have been presented, and one particularly has been considered at great length, and I merely want to point to the fact that with

respect to that bill, that concerned compulsory license, there were safeguards set about, protecting the inventor.

The CHAIRMAN. Have you reference now to the compulsory license bill that we considered some years ago?

Mr. CHRISTY. Yes; and in that bill, the rights of the inventor were protected in certain ways. A compulsory license was not to be sought until 3 years from the grant of the patent had passed. A compulsory license under no circumstances be granted until the owner of the patent himself had been heard, and a compulsory license should not be granted until the compensation had been fixed.

Now, if this bill were broadened, and perhaps I am exceeding what I am expected to say but if this bill were enlarged so as to be so comprehensive, the effect would be a compulsory license law that was not set about and the inventor was not guarded and protected, even as the advocates of a compulsory license provision in our law would have had.

I think that is all that I have to say, sir.

The CHAIRMAN. Do you want to ask any questions?

Mr. HARRIS. Do you feel that this bill is necessary?

Mr. CHRISTY. I do not see that it is. I do not take the positionMr. HARRIS. With those provisions that you spoke of, do you think it is necessary?

Mr. CHRISTY. I do think that the court is an adequate source of control of the situation, and a tested one.

The CHAIRMAN. Has it ever come to your personal knowledge that any of the secrets held by the Government with reference to national defense are in danger?

Mr. CHRISTY. No, sir.

The CHAIRMAN. Or have you heard of any information that in order for the Army or the Navy to procure some patented articles, that they need in national defense, that they would have to procure permission from Germany or other foreign countries?

Mr. CHRISTY. I should reply as other witnesses have replied, of course, I have seen it in the public print and I should like to add that after all the public print, with all due respect, is meant to be read and to be interesting.

The CHAIRMAN. You have heard some statements being made also in the public print by some officials of our Government, that such things have been going on?

Mr. CHRISTY. I would not go so far as to say that in this presence, sir.

The CHAIRMAN. I am trying to get it out, that is what we are here for, if anybody has got any of these bugs, we want to dispose of them.

I want to thank you very much, on behalf of the committee, and I know that we surely appreciate your coming here.

Mr. Fenning I believe is here.

STATEMENT OF KARL FENNING, PATENT ATTORNEY,

WASHINGTON, D. C.

Mr. FENNING. Mr. Chairman, I should first like to direct my attention, if I may, specifically to this bill. I have prepared a memoran

dum of two or three amendments which I think should be put in. There are some copies for distribution, and I would like to have one copy go in the record.

The CHAIRMAN. That may be done.

(The suggested amendment of H. R. 3360 follows:)

Insert on page 2, line 3, after "enforced" "against any activity necessary to the national defense."

Insert on page 2, line 8, before the period:

"Provided, The court on finding the patent or patents to be infringed shall require of the infringer a bond conditioned upon the payment to the patentee of all compensation to be determined."

Insert on page 2, line 9, after "act" "when introduced in evidence."

Mr. HARRIS. Even though the amendments that you are fixing to suggest here were to be accepted, do you think that this bill is necessary?

Mr. FENNING. No, sir; my attitude is this: The bill has been presented by the Government, and at the present time I have a feeling that Congress is likely to do most anything that the Government asks it to do in the name of national defense, whether it is national defense or not, and for that reason it seemed to me that at least whatever else was done the burden was on me to endeavor to see that if this sort of thing does go through it will go through in possibly the most innocuous form.

I want to call your attention first to the fact that there is a provision in this bill which requires the Commissioner of Patents to issue a statement that a patent is useful for national defense, and then it says that the court shall not grant any injunction.

Now, it seems to me that the appropriate tthing to do is to put the national defense very close to the injunction, and to say that no injunction shall be granted which interferes with national defense, and I am therefore suggesting the insertion on page 2, line 3, at the beginning of line 2:

No injunction based upon any such patent or patents shall issue or be enforced against any activity necessary to the national defense.

Now, that means that a judge, the court, who is the proper man to determine, may determine that the defendant is doing 17 things; 3 of them or 1 of them has to do with national defense, and that 1 or 3 he need not stop and the rest may go ahead.

The emphasis should be placed upon the limitation to the injunction, rather than the character of the patent itself.

Attention has already been called to the fact that no provision is made for really seeing that the patentee ever gets any money, especially with respect to a subcontractor. Frequently he is a small man, and he may disappear before anything turns up in the way of final judgment. It may be impossible to get anything from him at all. Therefore, it seems to me that something, such as on page 2, line 8, after the period, should be inserted:

Provided, The court, on finding the patent or patents to be infringed, shall require of the infringer a bond conditioned upon the payment to the patentee of all compensation to be determined.

Again, there is a provision in line 9 of page 2 that a "certificate issued in accordance with this act shall be binding upon the courts." That means that the courts have got to look in the Patent Office to see what is there.