If not, it seems to me that in view of the fact that we have another bill to consider, that in the interest of dispatch we might go on.

The CHAIRMAN. Mr. Lanham, I had in mind calling upon Mr. Francis M. Shea.

Lieutenant Commander CALDWELL. That is all that I have.

STATEMENT OF FRANCIS M. SHEA, ASSISTANT ATTORNEY GENERAL, IN CHARGE OF THE CLAIMS DIVISION

Mr. SHEA. I should expect that the Department of Justice would favor this bill. If the Commissioner of Patents and the representatives of the two military branches or departments of the Government feel that these loopholes have appeared, I think that we certainly would favor the purposes of the legislation which has been introduced. Now, as I said to you yesterday on the telephone, I only received this bill, and heard that you were to discuss it this morning, late yesterday afternoon. I would, as I indicated yesterday, therefore, like to have an opportunity to speak to both measures, after I have had a chance to consider the possible technical problems which are involved as distinguished from the objectives.

Mr. LANHAM. May I make an inquiry, there, please?

In view of the statements by the Commissioner of Patents, and these representatives of the War and Navy Departments, that there have been evasions of Public, No. 700 and in view of the fact that prompt action is therefore more or less necessary, and in view of the further fact that in the course of legislation this would have to pass both the House and the Senate, might we not proceed with this measure, and then there would be ample time, I think, even before we could get it to the floor of the House, where it would likely come up on a unanimous consent calendar, to get your reactions to any suggested changes, so that the committee might give consideration to them?

Mr. SHEA. It seems to me that that is primarly a legislative problem, and consequently I would prefer to leave it to those who are expert in that department.

Mr. LANHAM. My point was that that would give time for us to consider also your reaction to the provisions of this particular bill, in its amendatory features of Public, No. 700.

Mr. SHEA. You know better than I as to whether that will give you an adequate chance to discuss the matter, sir. I mean, I spoke to the chairman yesterday, and I said that I gathered from him that he expected the hearings to continue on Monday, and I told him that at that time I would be prepared to talk in technical terms on the measures. I am not prepared to talk in technical terms on the measures this morning. I have certain curbstone views, but it seems to me that it is much more responsible behavior if I wait until I prepare a memorandum on the various problems that occur to me.

The CHAIRMAN. I thought, Mr. Shea, when I did speak to you, that you would naturally as a very good servant of the Government, in that very able capacity that you have of acquiring knowledge rather speedily, stay up part of the night, as if you were representing a client, and you had to go to trial the next morning-and I have done that many a time in my younger days.

Mr. SHEA. Mr. Chairman, precisely that happened, in preparation, to be able to give you full views on Monday.

I understood you to say that you would expect me to discuss the matter fully on Monday. Was I wrong in that?

The CHAIRMAN. No; that is correct. I thought perhaps I might call on you now, and you might give some enlightenment.

Mr. Mothershead, are you prepared this morning?

Mr. MOTHERSHEAD. If there is anything you want to ask me. The CHAIRMAN. I would be glad to have you give your comments on it.

Mr. MOTHERSHEAD. I would rather talk to Mr. Shea about the matter. I have not done so.

The CHAIRMAN. Then we will hear from you on Monday.

I have had quite a few telephone calls and telegrams from out of town, and I would like to know how many of those present here now, outside of those whom I have called, are for this bill?

Would you raise your hand, please, if anyone wants to say anything in favor of the bill?

Mr. FENNING. Would you put it in a questioning way? I think most of us are in favor of the substance of the bill, or the intent.

The CHAIRMAN. Would you like to say anything that way on the bill?

But how many are there in the opposition-in opposition to the form, that have amendments to offer?

I see that we have quite a few.

Mr. LANHAM. Before taking that up, may I make this suggestion? I notice that you said you contemplated continuing hearings on Monday. I wonder if that could be made as conveniently Tuesday? Monday is an unusually busy day with most of us, especially those of us whose homes are far from the Capitol, and Monday we usually get 2 or 21 days' of mail.

The CHAIRMAN. The gentleman from Texas is in no worse position than the chairman, because I come a few more steps.

Mr. LANHAM. We are usually swamped on Monday, and I would like to suggest, if it is agreeable, that we have the meeting on Tuesday. The CHAIRMAN. I am always agreeable to the wishes of the committee. I will fit in anywhere.

Mr. LANHAM. The only reason I mentioned it was for the benefit of those who might wish to appear.

The CHAIRMAN. When I said Monday, I thought that we would go over to Monday, and perhaps some days next week. I don't think that we will conclude the hearings on both bills within the next week. I want to give everybody an opportunity to be heard.

I would say that we should go on, on Tuesday, because I believe that Monday is a bad day for every Member of Congress. We have the Saturday, Sunday, and Monday morning mail all to contend with, and the same thing with men in business and lawyers who come here, they are in the same position, so that when we adjourn today, we will adjourn to 10 o'clock on Tuesday.

Now, I would like to have Mr. Fenning make any statement that he has, or suggestions on the bill, whether in the nature of amendment, or otherwise. I understand he is for the bill, but he has some suggestions.

315217-41-2

STATEMENT OF KARL FENNING, PATENT LAWYER,

WASHINGTON, D. C.

Mr. FENNING. Mr. Chairman, I think that all of us are in favor of doing anything which may help national defense and which may keep secret those things which should be kept secret. It seems to me, however, that this bill is inefficient, does not go far enough, and cannot accomplish its purpose.

You will remember that Commissioner Coe referred to the fact that the President had issued a proclamation under a statute which said with respect to limited matters, that no information could be sent abroad.

Now, if it is the purpose to cover the entire field of invention, and industry, as this bill does on its face, it seems to me that the appropriate thing to do is to amend the statute under which the President has issued that proclamation, so that you can control disclosures abroad. Mr. LANHAM. Would you suggest that by way of an additional section to the bill?

Mr. FENNING. I do not know why it should be an additional section, because it seems to me that to even pay much attention to the Patent Office, is hardly necessary. That might be as an additional section.

You understand, of course, that while the Patent Office is an important organization, everything that is done does not get into the Patent Office. You will understand, of course, that there are a good many things which go into the Patent Office after they have gone into use. The machine or device, or anything, may be used in the United States. for a year before an application for patent is made.

The use discloses the device, and it can then be seen, and the information concerning it can be transmitted abroad. There are corporations in the United States who have foreign associates, and one scheme which they have adopted is to send to their foreign correspondents information concerning substantially everything that they do, and say to them: "Maybe we are going to file an application in the United States, maybe we are not. If you want an application filed over there you can go ahead and do it."

Now, that is all quite aside from any application in the Patent Office, and frequently they do not care about a United States application, but the foreign company does.

Sometimes those things are more important than things which go through our Patent Office, so if that sort of thing is not touched, you are merely trying to plug a small hole by doing this thing, and it seems to me that you are creating at least as much difficulty as if you went at the matter the other way, and covered the broader field. Mr. LANHAM. May I make an inquiry there?

The Patent Committee would not have jurisdiction, then, of the situation to which you refer?

Mr. FENNING. That might be so.

Mr. LANHAM. Now, then, would it not be well for a bill embodying those ideas to be introduced and referred to the appropriate committee, in order to take care of the particular situation to which you refer? Mr. FENNING. That may be legislative procedure, but let me say this, Mr. Lanham: You say the Patent Committee may not have jurisdiction of it. You know from your long experience in Congress that the

lines between the committees are not very sharply drawn. At the present time there is pending before the Military Affairs Committee a bill which amends the patent law, in one section.

Mr. LANHAM. It was for that reason that I was thinking that you would suggest an additional paragraph to this bill, and thought that you might have such a section framed.

Mr. FENNING. This matter came to my attention, and I think that I saw the bill the day before yesterday, and I have been very busy in the meantime, but all I want to explain to you now is that you are not covering, or you are not doing by this bill, the thing which you want to do, or the thing which I think should be done.

Now, technically, with respect to the form of this bill, section 3 says "no person shall file" foreign applications. In those terms, that will mean that a citizen of Great Britain, living in Great Britain, doing everything in Great Britain, can't file a patent in Great Britain before he files a patent here.

Certainly "no person" shall be, or "no citizen or resident of the United States"-that is in line 6, on page 1.

Mr. LANHAM. Mr. Chairman, in view of that suggested amendment, it seems to me that we might inquire as to the reaction to that suggestion of the Commissioner and these gentlemen from the Army and Navy or the Department of Justice.

Mr. COE. I think it is wholly unnecessary, but there is no objection to it, because our laws cannot operate on anyone living in England. The CHAIRMAN. You would not have jurisdiction.

Mr. FENNING. Yes; you could say: "You cannot file your application here unless you file your application here before you file it abroad." We can say to a foreigner, "We will not give you a patent unless you file here first," and that is what you have done by this bill.

The CHAIRMAN. Yes.

Mr. COE. We have issued secrecy orders against people residing abroad, and I think that we should have done so.

Mr. FENNING. It seems to me that you are going a little too far. There are citizens of the United States resident abroad, affiliated with foreign corporations in China, and in Russia, and in England, and in Canada, throughout South America, and if as a part of their work in those countries they develop an invention, there is no use of our saying they have got to keep that invention secret from that country because that is where they are doing their work. It is not secret down there, anyhow.

Mr. LANHAM. These citizens, wherever they may be, look to the United States for protection.

Mr. FENNING. Not necessarily.

Mr. LANHAM. I mean for personal protection, that if controversies arise that the Government, with the might of its Army and Navy, if necessary, will give them protection.

Now, does not there rest upon them the corresponding responsibility, in view of the fact that this legislation is limited to inventions primarily useful for national defense, and only to those inventions the obligation is upon them wherever they may discover it, if they are citizens of this country, to give this country the advantage of that, in order that it might be kept secret?

Mr. FENNING. Suppose an Army officer is sent to England to work with the British Army or with development work for the British Army.

He develops something over there, and he cannot keep it secret. It is told in England, because the people he is working with have the information.

He may be sent officially to do that. Nevertheless, this bill tells him that neither he nor the United States Government can get a United States patent because he has disclosed matter abroad before he filed his application here.

Now, it seems to me, therefore

Mr. LANHAM. That seems to me to be just a little beyond the scope of this bill.

Mr. FENNING. Remember this, if you will, Mr. Lanham: This bill is not confined to national defense. The man may be working to make a tooth powder in China, and he may be working to make something which kills bugs, in one of the Chinese gardens, but this law, if it is passed, will cover that. It is not limited to national defense.

Mr. LANHAM. Now, in our original discussion of the bill which resulted in the enactment of Public, 700, we had some arguments very much along that same line.

The CHAIRMAN. Not with Mr. Fenning.

Mr. FENNING. That was not a public hearing. The public was not admitted there.

Mr. LANHAM. But with some others. I think that in practice, since the enactment of Public, 700, those fears have been very greatly relieved.

Mr. FENNING. Let me say this: 700 says that the Patent Office must go out and pick out something and say it is national defense, and now this bill says that everything is covered until the Patent Office releases it. That is a different condition.

Mr. LANHAM. Well, of course, the discretion to determine whether or not it is primarily for use for the national defense must rest somewhere, and in view of the fact that the Patent Office has the collaboration of these patent experts from the Army and the Navy, it seems to me that their restrictions would not be too broad, or broad enough to interfere with those things that are primarily useful for commerce rather than national defense.

Mr. FENNING. I have stated my point, and now may I suggest that what I would do, in line 9, of page 1, after the word "country," I would insert "with respect to any invention made in this country." I throw that out for your consideration, and of course, I understand that I cannot control what you do by any means.

The CHAIRMAN. We are always glad to have your suggestions, Mr. Fenning.

Mr. LANHAM. And I may say that they are always well worthy of consideration, Mr. Chairman.

Mr. HARRIS. I am just asking this for information. If that were inserted there, a man in this country who decided that he had a certain invention, and wanted to evade this law, could he not step across into Mexico, or some other country, and go ahead with his patent and then return?

Mr. FENNING. The term I used, "making the invention"-now, if he makes the invention before he goes abroad, then the invention is made here, but I am interested in a man who has been sent to China or to Russia or to one of the South American countries, and has been sent