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LIST OF ANTI-TRUST INDICTMENTS AND COMPLAINTS (Submitted by Thurman Arnold, Assistant Attorney General in charge of Antitrust Division)

1. United States v. American Collaid Co. et al. District Court of the United States for the Southern District of New York, No. 108-165 (criminal). Returned August 29, 1940.

2. United States v. General Electric Company et al. District Court of the United States for the Southern District of New York, No. 108-172 (criminal). Returned August 30, 1940.

3. United States v. Aluminum Company of America et al. District Court of the United States for the Southern District of New York, No. 109-189 (criminal). Returned January 30, 1941.

4. United States v. The Dow Chemical Company et al. District Court of the United States for the Southern District of New York, No. 109-191 (criminal). Returned January 30, 1941.

5. United States v. American Magnesium Corporation et al. District Court of the United States for the Southern District of New York, No. 109-190 (criminal). Returned January 30, 1941.

6. United States v. Bausch & Lomb Optical Company et al., defendants. District Court of the United States for the Southern District of New York, civil action No. 9-404. Complaint filed July 8, 1940, decree entered July 9, 1940.

7. United States v. Bausch & Lomb Optical Company et al. District Coourt of the United States for the Southern District of New York, No. 107-169. Returned March 26, 1940.

8. United States v. Hartford-Empire Company et al. District Court of the United States for the Northern District of Ohio, Western Division, civil action No. 4426. Filed December 11, 1939.

9. United States v. General Electric Company et al. District Court of the United States for the District of New Jersey, civil action No. 1364. Filed January 27, 1941.

10. United States v. Corning Glass Works at al. District Court of the United States for the Southern District of New York, No. 108-164 (criminal). Returned August 28, 1940.

11. United States v. American Optical Company, an Association, et al. District Court of the United States for the Southern District of New York, civil action No. 10-391. Filed September 16, 1940.

12. United States v. American Optical Company et al. District Court of the United States for the Southern District of New York, No. 107-417. Returned May 28, 1940.

13. United States v. The Univis Lens Company, Inc. et al. District Court of the United States for the Southern District of New York, civil action No. 10-392. Filed September 16, 1940.

14. United States v. Bausch & Lomb Optical Company et al. District Court of the United States for the Southern District of New York, civil action No. 10-393. Filed September 16, 1940.

District Court of

15. United States v. Bausch & Lomb Optical Company et al. the United States for the Southern District of New York, civil action No. 10–394. Filed September 16, 1940.

16. United States v. Masonite Corporation et al. District Court of the United States for the Southern District of New York, cvil action No. 7-498. Filed March 11, 1940.

17. United States v. The Wayne Pump Company et al. District Court of the United States for the Northern District of Illinois, Eastern Division, No. 32597 (criminal). Returned January 31, 1941.

18. United States v. The Wayne Pump Company et al. District Court of the United States for the Northern District of Illinois, Eastern Division, No. 32598 (criminal). Returned January 31, 1941.

19. United States v. Johns-Manville et al. District Court of the United States for the Northern District of Illinois, Eastern Division, civil action No. 1817. Filed June 24, 1940.

20. United States v. United States Gypsum Company et al. District Court of the United States for the District of Columbia, No. 66008. Returned June 28, 1940. 21. United States v. Certain-Teed Products Corporation et al. District Court of the United States for the District of Columbia, No. 66007. Returned June 28, 1940.

[Telegram]

Hon. CHARLES KRAMER,

House of Representatives:

BOSTON, MASS.,
February 19, 1941.

Believe H. R. 3360 should be amended by inserting after "enforced," page 2, line 3, the following: "If such injunction would interfere with manufacturing or other operations necessary to the national defense or public safety." Letter follows.

NATHAN HEARD, President, Boston Patent Law Association.

THE BOSTON PATENT LAW ASSOCIATION,
BOSTON, MASS., February 19, 1941.

Hon. CHARLES KRAMER,

House of Representatives, Washington, D. C.

MY DEAR MR. KRAMER: I thank you for your letter of February 17 notifying us of the hearing on Thursday, February 20, on H. R. 3359 and H. R. 3360, and enclosing copies of the bills.

We have given immediate consideration to these bills and I have telegraphed you this afternoon and enclose a copy of my telegram.

If the Congress feels it necessary to the national defense to require a certificate such as provided for in H. R. 3359 before applying for a foreign patent we have no objection to offer particularly as the bill, if passed, would be an amendment to Public Act No. 700, Seventy-sixth Congress, which expires July 1, 1942.

With reference to H. R. 3360, we think that the bill is broader than necessary and have therefore suggested the amendment to line 3, of page 3, by inserting after the word "enforced" the following:

", if such injunction would interfere with manufacturing or other operations necessary to the national defense or public safety."

While no injunction under a patent should be allowed to interfere with the national defense or public safety during this emergency, it does seem that there is no reason why infringers who have nothing whatever to do with operations relating to national defense or public safety should not be subject to injunction. The proposed amendment would take care of this objection.

Very truly yours,

[Telegram]

NATHAN HEARD, President.

FEBRUARY 19, 1941.

Hon. CHARLES KRAMER,

House of Representatives, Washington, D. C.

Believe H. R. 3360 should be amended by inserting after "enforced" page 2, line 3, the following: "if such injunction would interfere with manufacturing or other operations necessary to the national defense or public safety. Letter follows.

NATHAN HEARD, President, Boston Patent Law Association.

Charge, Heard, Smith & Tennant, 77 Franklin Street.

PATENT APPLICATIONS WITH HELD FROM ISSUE FOR NATIONAL DEFENSE PURPOSES* (Article by Henry Bruton, in the February 1941 issue of the George Washington Law Review, vol. 9, No. 4)

The recent enactment of Public, No. 7002 by the Seventy-sixth Congress, while it will undoubtedly affect only a small proportion of the total number of patent

*The opinions and assertions contained herein are the writer's own, and are not to be construed as official or deflecting the views of the Navy Department or the naval service at large. 1 Approved by the President, July 1, 1940.

2 Whenever the publication or disclosure of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public

applications passing through the Patent Office, presents problems of unusual and vital interest to patent practitioners, especially those connected with organizations engaged in supplying the rapidly expanding national defense. This Act and a portion of another 3 of even narrower scope provide means whereby pending patent applications may be withheld from issue when such applications contain matter the disclosure of which would be prejudicial to the national defense.

The Three Year Act1

This Act is pertinent only because of its last two sentences, which were added in 1916. This portion of the Act has continually remained in effect, without change, since its original enactment. These two sentences are extremely limited in scope, since they apply only to patent applications owned by the Government. This Act, from the end of the last World War until the recent enactment of Public, No. 700, has provided the only procedure whereby patent applications could be filed in the Patent Office on secret military and naval inventions and yet be withheld from issue as a patent until such time as it was no longer necessary to keep the inventions secret.

The procedure followed under the Three Year Act is substantially as follows: An assignment of the application to the government is first necessarily obtained since under the statute the application, to be placed under the provisions of the Act, must become the property of the government. Upon the receipt of a request from the head' of a department of the government, accompanied by a certification by such official that the invention disclosed in the application is important to the armament or defense of the United States and the assignment of the application to the government, the Commissioner of Patents places the application under the provisions of the Act. The application is then prosecuted toward allowance in the same manner as other applications pending in the Patent Office, except that a period of three years is allowed after each Patent Office action for a response before the application is regarded as abandoned. By the use of the above procedure, the application may be kept pending, and hence secret, for a long period, or even indefinitely, until such time as the necessity for keeping the inventiou

8

safety or defense, he may order that the invention be kept secret and withhold the grant of a patent for such period or periods as in his opinion the national interest requires: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the Commissioner that in violation of said order said invention has been published or disclosed or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approval of the Commissioner of Patents. When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the government of the United States for its use, he shall, if and when he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the government: Provided, That the Secretary of War or the Secretary of the Navy or the chief officer of any established defense agency of the United States, as the case may be, is authorized to enter into an agreement with the said applicant in full settlement and compromise for the damage accruing to him by reason of the order of secrecy, and for the use of the invention by the government.

SEC. 2. This Act shall take effect on approval and shall remain in force for a period of two years from such date. (Public, No. 700, 76th Cong.)

All applications for patents shall be completed and prepared for examination within six months after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within six months or such shorter time, not less than thirty days or any extensions thereof, as shall be fixed by the Commissioner of Patents in writing to the applicant after an action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable. No application shall be regarded as abandoned which has become the property of the government of the United States and with respect to which the head of any department of the government shall have certified to the Commissioner of Patents, within a period of three years, that the invention disclosed therein is important to the armament or defense of the United States. Within ninety days, and not less than thirty days, before the expiration of any such three-year period, the Commissioner of Patents shall, in writing, notify the head of the department interested in any pending application for patent, of the approaching expiration of the three-year period within which any application for patent shall have been pending. R. S. § 4894; Mar. 3, 1897, c. 391, § 4, 29 Stat. 693; July 6, 1916, c. 225, § 1, 39 Stat. 348; Mar. 2, 1927, c. 273, § 1, 44 Stat. 1335; Aug. 7, 1939, c. 568, 53 Stat. 1264, 35 U. S. C. Supp. V, § 42 (1939).

4 So-called because three years are allowed for a response to each Patent Office action before the application is considered abandoned.

5 Supra, note 3.

6 Act of July 6, 1916, c. 225, § 1.

7 Usually the Secretary of War or the Secretary of the Navy.

8 Mr. MANN. This extends the application for 3 years, or does something for 3 years?

Mr. SHERLEY. This extends the application indefinitely, provided within 3 years a statement is made by the department that it is in the interest of national defense.

Rec. 9505 (1916).

53 Cong

secret no longer exists.

All applications placed under the Act are prosecuted by government attorneys. An irrevocable power of attorney to prosecute is obtained in each case, although it is often the practice to permit the attorney of the assignor of the application to the government to prosecute it through the government attorney of record.

The applications placed under the provisions of this Act are invariably classified and maintained as secret or confidential matter by the head of the government department concerned. Many of these applications cover inventions made under secret Army or Navy developmental contracts. It is understood that the Patent Office also takes special steps toward safeguarding the secrecy of such applications. Each application is carefully considered before being placed under the Act and when the necessity for its being kept secret no longer exists, it is removed from the provisions of the Act and allowed to issue as a patent, if it contains patentable matter. A number of patents have issued on applications that were prosecuted under the Three Year Act and were subsequently released. The patentee, as in the case of any other patent application, receives the full seventeen-year period of patent protection commencing with the date of issuance of the patent.

No case has been found in which the validity of a patent which issued from an application formerly placed under the Three Year Act has been questioned because of its prosecution under the Act. There is no room for a suggestion that the validity of such a patent would be open to question on such ground. There is provided no extension of the patent monopoly. The patent was delayed in issuance for the benefit of the government, not the patentee.

13

Public No. 700

This Act, which is currently effective in time of peace, is a modification of two almost identical wartime statutes, passed on the same day." One 11 of these Acts was included in the World War Trading with the Enemy Act and granted to the President certain powers which the other12 reserved to the Commissioner of Patents. The two Acts were administered in exactly the same manner. The Trading with the Enemy Act might be regarded as effective only during the World War; the other Act was effective only when the United States was at war. The currently effective Public, No. 700 differs from these earlier Acts in several particulars: (1) It is effective in time of peace for a period of only two years from July 1, 1940, (2) it permits the Commissioner of Patents to order the invention to be kept secret and withhold the application from issue for such period or periods as in his opinion the national interest requires, limited, of course, by the two year period of effectiveness of the Act, while under the wartime stat

Supra, note 2.

10 Oct. 6, 1917.

118 10 (1). Whenever the publication of an invention by the granting of a patent may, in the opinion of the President, be detrimental to the public safety or defense, or may assist the enemy or endanger the successful promotion of the war, he may order that the invention be kept secret and withhold the grant of a patent until the end of the war: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the Commissioner of Patents that, in violation of said order, said invention has been published or that an application for a patent therefor has been filed in any other country, by the inventor or his assigns or legal representatives, without the consent or approval of the commissioner or under a license of the President.

When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the President above referred to shall tender his invention to the Government of the United States for its use, he shall, if he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the government. (Oct. 6, 1917, c. 106, § 10, 40 Stat. 420; Mar. 10, 1928, c. 167, § 19.) (Trading with the Enemy Act, Act of Oct. 6, 1917, c. 106, § 10, 40 Stat. 420.)

12 Whenever during a time when the United States is at war the publication of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be deterimental to the public safety or defense or might assist the enemy or endanger the successful prosecution of the war, he may order that the invention be kept secret and withhold the grant of a patent until the termination of the war. The invention disclosed in the application for said patent may be held abandoned upon it being established before or by the commissioner that in violation of said order said invention has been published or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approvel of the Commissioner of Patents, or under a license of the Secretary of Commerce as provided by law.

When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use, he shall, if and when he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from date of the use of the invention by the government. (Act of Oct. 6, 1917, c. 95, 40 Stat. 394.)

13 35 U. S. C. A. 754" (1940).

utes, orders of secrecy were effective until the termination of the war, (3) it penalizes publication, disclosure, and foreign filing while the earlier Acts did not expressly penalize disclosure but only publication and foreign filing, (4) provision is made to compensate the applicant for government use without suit in the Court of Claims, and (5) provision is made to compensate an applicant for damages accruing from the order of secrecy even though his invention was not used by the government. In other respects, such as, for example, permitting suit in the Court of Claims for government use of the invention accompanied by a tender, the current Public, No. 700 and the earlier acts are identical.

It is understood that the following procedure is substantially followed under Public, No. 700: Each primary examiner examines all pending applications in his division in order to determine if such have any bearing on national defense, and submits to a committee formed within the Patent Office all applications the publication or disclosure of which might be detrimental to the national defense. The Patent Office Committee, if it concurs with the primary examiner, makes those applications available for examination by a committee of experts appointed by the Secretary of War and the Secretary of the Navy to act as advisers to the Commissioner of Patents. If this Army-Navy Committee considers that the publication or disclosure of any of the applications referred to it would be detrimental to the national defense, it so advises the Commissioner, through the Patent Office Committee, and the Commissioner of Patents issues an order 1 of secrecy on the particular application. The application affected by such order of secrecy is prosecuted toward allowance in the same manner as any other pending application, but after reaching the allowance stage, a patent is not permitted to issue thereon as long as the application remains under the provisions of the act.

The above procedure was also substantially followed during the last World War under the provisions of the earlier acts, except that the Army-Navy Committee was permitted free access to all pending applications in the Patent Office, not only to prevent the issue of applications the publication of which would be detrimental to the national defense, but also with a view of culling the pending applications for inventions which might be useful in the prosecution of the war. The present Army-Navy Committee does not have free access to the applications pending in the Patent Office but examines only those applications referred to it. 14 The following form is currently in use:

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heirs, and any and all agents:

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 and 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 with the

Department.

Commissioner.

Substantially the same form was used in the World War. The World War form called the attention of the applicant to the coeffective provision of the Trading With the Enemy Act, but did not recommend that the applicant tender his invention to the appropriate government department. The wording of the World War form confined the effectiveness of the order of secrecy "during the period of the present war." The World War form expressly ordered the applicant "to in nowise publish the invention or disclose the subject matter of said application, except that the invention may be disclosed to officials of the War and Navy Departments of the United States.

*

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