Major VANDERWERKER. Even that part of section 3, if you left out, I think, Mr. Chairman, that the words "no person," in line 1, would exclude the United States from the operation of the section.

Mr. FENNING. It would cover any corporation, and is not the United States a corporation?

Major VANDERWERKER. As used in the section there, if the officer acted within the scope of his authority, it would put him without the penalty provision that is provided in section 5.

The main thought, Mr. Chairman, was, as I have stated, that in these few cases which for reasons of public safety are kept in a secret status, that the interests of the War Department or the Government might be such that we would want to disclose, and we would want to file abroad, and we do not wish to have to go to some other official to get that permission; without any personal reflection on the present Commissioner of Patents, the next Commissioner might not be as cooperative and accommodating as Mr. Coe has been.

Mr. FENNING. You have got freedom for that under section 5, the last sentence of which provides that it shall not apply to any officer of the United States acting within the scope of his authority.

Major VANDERWERKER. That is the penal provision of section 5, the penalty.

We are interested also in section 3, and we would like to see that provision left in.

The CHAIRMAN. Commissioner, you had some words there, I believe, that we discussed.

Mr. COE. I do not care to make any further remarks except that I think it might be helpful to insert in the record a copy of the typical order that we issue with respect to cases under Public, 700. If you examine that order you will see that a great many of the objections that are raised have no practical application.

For example, the order states that you shall not disclose the invention except by written permission first obtained from the Commissioner of Patent. That is on the face of the order and it seems to me that that completely avoids Mr. Fenning's objection as to the necessity of specifically authorizing the Commissioner of Patents to modify his order.

The original order itself contemplates extending permission, and how could anyone be accused of not complying with the order itself when the Commissioner modifies the order as contemplated by the original order?

A reading of the order will completely meet Congressman Scott's fear, that an inventor might be penalized by submitting his invention to the Government, because the order specifically recommends that the invention be tendered to the Government of the United States, by communicating directing with one of the departments.

Mr. FENNING. It does not permit, it merely recommends.
Mr. COE. I think that you are getting very technical now.

Mr. FENNING. Again we are relying on the statute. Public, 700, does not authorize the issue of this kind of an order. It provides only for a secrecy order.

Mr. COE. Have I permission to insert a copy of the order in the record?

The CHAIRMAN. Yes.

Under the provisions of the act of October 6, 1917 (Public, No. 80), as amended July 1, 1940 (Public, No. 700), you are hereby notified that your application as above identified has been found to contain subject matter disclosure of which might be detrimental to the public safety or defense, and you are hereby ordered to in nowise publish or disclose the invention or disclosure of said application but to keep the same secret (except by written permission first obtained of the Commissioner of Patents) under penalty of the invention being held abandoned. This application must be prosecuted under the rules of practice until a notice is received from the office that the case is in condition for allowance. Such notice closes the prosecution of the case, except under provisions similar to those set forth in rule 78. Furthermore, if previously allowed and now withdrawn, the prosecution of the case is likewise closed. When the application is in condition for allowance it will be withheld from issue during such period or periods as the national interest requires.

This order should not be construed in any way to mean that the Government has adopted or contemplates adoption of the alleged invention disclosed in this application, nor is it any indication of the value of such invention. It is recommended that you tender this invention to the Government of the United States by communicating directly with the Department.

Commissioner.

Mr. SHEA. I have suggested that I will deliver a memorandum on the insertion of the word "willful." How many copies should I have?

The CHAIRMAN. At least 25.

Mr. SHEA. May I deliver them to you?.

The CHAIRMAN. Send them to the committee clerk, yes; and we will pass them around. All of the suggested changes will come to the committee, because we will have to have an executive session, and I think that that will be included.

Mr. FENNING. May I have one word before you close, with respect to this requirement for the Commissioner to answer within 2 months? General Shea suggests that if that is done, everyone will immediately apply for a release.

The CHAIRMAN. You mean on the 60 days?

Mr. FENNING. Yes. That, of course, as you remember, Mr. Eyre said yesterday, is not so. If we have no time limit, every cautious lawyer when he files an application for patent, at the same time will request permission to file abroad, so that if his inventor has in three months from that time made up his mind from actual use that he

wants to file abroad and finding that the invention amounts to something, he would not have to then file his application and wait 6 or 8 or 10 months for an answer from the Commissioner.

If, however, he knows that he can get his answer within 2 months, he will delay filing his request for filing abroad, until he actually knows that he needs it.

It seems to me that there is not any question, but putting the 2 months limit in there, or a limit of some sort, is going to limit the number of requests which are going to be filed.

The CHAIRMAN. I think that we might be able to adjust that.

Now, before we adjourn, I want to make a correction as to the time. I find that there is quite a request from out of town people to appear here, and it is impossible to get the notices to them for next Thursday, so I have concluded to postpone the hearing on H. R. 3360 from next Thursday, to Tuesday, the 11th.

That will give a great deal more time to the Departments; they have been down here almost continuously. It will be Tuesday, the 11th, at 10 o'clock. That will give you more time to go over H. R. 3360, and give us an opportunity to go into those matters.

Then I believe we will send a notice out later, and in the meantime, I can see Mr. Lanham, to see if we can arrange to have an executive session, and consider H. R. 3359.

The committee will stand adjourned.

(Whereupon, at 12: 10 p. m., an adjournment was taken until Tuesday, March 11, 1941, at 10 a. m.)

315217-41-8

PREVENTING PUBLICATION OF INVENTIONS AND
PROHIBITING INJUNCTIONS ON PATENTS

TUESDAY, MARCH 11, 1941

HOUSE OF REPRESENTATIVES,
COMMITTEE ON PATENTS,
Washington, D. C.

The hearing convened at 10 a. m., pursuant to adjournment, the Honorable Charles Kramer (chairman), presiding.

The CHAIRMAN. Gentlemen, I understand that some of our committee members are engaged for a few moments this morning, but we will proceed without waiting any further.

We will resume hearings on the bill, H. R. 3360, and call attention to the text which was inserted in the record at our previous hearings of February 26.

I might say that we are going to hear the proponents of this bill first; as I understand it there are a great many here that are in opposition to it, not to the purpose of the bill in itself, but perhaps to the manner that the bill is drawn, and then perhaps some of them are opposed to it in its entirety.

First we will hear from the War Department, and see what, if any, objections the War Department has to the bill, or if they are for the bill. I presume that they are in favor of the bill.

STATEMENT OF MAJ. FRANCIS H. VANDERWERKER, PATENT SECTION, OFFICE OF JUDGE ADVOCATE GENERAL, WAR DEPARTMENT

Major VANDERWERKER. I have nothing to add to my former testimony, Mr. Chairman, except to say that your committee has now called upon the War Department for a formal report on this bill, and it is now being studied with a view to preparing a formal report, which in due course will come to the committee.

Outside of that development, I can only repeat what I testified to before, with respect to the bill, that the War Department has no present need for a bill of this character; however, it is entirely possible that in some of the other Government departments there may be a need for this type of legislation, and in that view the War Department does not want to oppose it.

The War Department also wishes to be free later on if conditions exist which demand stronger legislation, to come to the committee and make the request when we know exactly what the situation is, and what we think we ought to have and what we need.

107