of the Army and Navy and go over it with care. I was appearing before the Appropriations Committee of the House yesterday morning, and I had to attend to that, and I worked until midnight on this last night, and I have had special assistants down from New York in order to go over it with them as carefully as I could, and all I can say, sir, is that I have delivered you as much of my time and energy as was permitted between Friday and today.

The CHAIRMAN. We are perfectly willing to give you any amount. of time. While we would like to move things along rapidly, yet at the same time there is no such great urgency for this that we would have to do it haphazard by not going over it.

Mr. SHEA. I am at your service, sir.

The CHAIRMAN. Have you any other suggestions?

Mr. SHEA. Yes; I have a suggested revision of section 4, the only purpose of which is, in the light of the suggested change in section 3, to eliminate drafting problems, and to cover what was proposed to be covered by section 3 in the violation section. I propose revision of section 4, as follows:

Strike section 4, as it now stands, and insert in lieu thereof, the following:

SEC. 4. Notwithstanding the provisions of sections 4886 and 4887 of the Revised Statutes (35 U. S. C., secs. 31 and 32), any person or corporation and the successors, assigns, or legal representatives of any such person or corporation shall be debarred from receiving a United States Patent for an invention if such person, corporation, or such successors, assigns, or legal representatives shall, without procuring the authorization prescribed in Section 3 hereof, have made or consented to or assisted another's making application in a foreign country for a patent for such invention where authorization for such application is required by the provisions of Section 3, and any such United States patent actually issued to any such person, corporation, successors, assigns, or legal representatives so debarred or becoming debarred shall be invalid.

Mr. LANHAM. The purpose of that is to make the two conform? Mr. SHEA. That is all. That was the only intention, to carry over section 3, in short, to the provisions of section 4, and to make anyone involved in violations of the provisiosn of section 3 liable under section 4, and to eliminate the possibilities of any setting up of dummy corporations, or the use of noncitizens, or so forth, to avoid the provisions of section 3.

Mr. LANHAM. There are not any objections to the penal section of the bill?

Mr. SHEA. I have a suggestion also in respect to the penal section. May I read the revision as I suggest its revision? [Reading:]

Whoever violates any order of the Commissioner made pursuant to the Act approved July 1, 1940 (Public, Numbered 700, Seventy-sixth Congress, third session, ch. 501), or whoever with knowledge of such order publishes or discloses any information in respect of the invention to which such order relates or files or causes or authorizes to be filed, an application for patent or for the registration of a utility model, industrial design, or model in a foreign country except as provided in Section 3 hereof shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or both.

That attempt to meet two suggestions which were made last time, and as to which I think there is a substantial point.

The first suggestion was that the person should have notice of the order, that is to say, if he made disclosures without knowing anything bout the order of secrecy, the penal provisions should not operate.

Mr. LANHAM. I was going to ask a question about that. Why cannot we elaborate there on actual and constructive notice and knowledge? For instance, what constructive notice could there be of a secret order, if the order is kept secret, or could there be any?

Now, you say "with knowledge," and of course, that brings up the question of actual and constructive knowledge.

Mr. SHEA. It would cover the inventor, anyone working with him, his lawyer, and so forth, I mean the persons who would have been in on the business.

Mr. LANHAM. They would have actual knowledge.

Mr. SHEA. Yes; now to be sure when you put in "with knowledge," you offer a possibility of evasion. There is no doubt about that, but when you are imposing criminal penalties

Mr. LANHAM. It becomes a matter of proof.

Mr. SHEA. But when you are imposing criminal penalties of a fairly serious character, in general there ought to be knowledge of the fact that he is doing something wrong.

Mr. PLAUCHE. Do you think anyone could be convicted without knowledge?

Mr. SHEA. As a matter of fact, I was going to add that I should think that the courts would so interpret it, in any event, but it disturbed some of the gentlemen who were here, and I see no objection to taking account of the various considerations involved. I think it may be somewhat more difficult but I see no objection to such a provision. Mr. LANHAM. There could not be much constructive notice anyway of an order kept secret, could there?

Mr. SHEA. It would be actual knowledge.

Then there is a second point of revision which you will note. It is confined to publishing any information in respect of the invention. I suppose that you would not want to catch a man for what he had done previously, in respect of his order. I should think that you would not want, probably, to impose these penalties if a person said, "Well, an order has been entered," or stated something in relation to the procedure, and so forth.

The thing that you are after is information in respect of the matters covered in the invention. That is purely a drafting suggestion. Those are my only suggestions, Mr. Chairman. Otherwise we feel that the provision should be supported, and as I say, the only purpose of these changes is to meet various suggestions which were made, and at the same time to keep the coverage as substantial as had been intended. Mr. LANHAM. They are really more a matter of phraseology of the suggestions made the other day. They are in amplification, and a change in the phraseology that would facilitate the operation of the prosecutions, for violations of this act.

Mr. SHEA. Yes.

The CHAIRMAN. Does any member of the committee wish to ask Mr. Shea any questions on the suggestions that he has offered? [No response.]

If not, I would like to ask Major Vanderwerker to say something. Mr. SHEA. Did you want my comment on the suggestions, for instance, of Mr. Fenning?

Mr. LANHAM. I think it would be well to have them, Mr. Chairman. The CHAIRMAN. I thought that I would call the other gentlemen

and hear from them, and then I would let Mr. Fenning and any members of the Patent Law or American Bar Association, or any other person here, be heard on the question.

Mr. SHEA. May I just say that apart from the suggestions which are incorporated in these revisions, I think that there is a substantial reason against the adoption of the other suggestions which were made? Mr. LANHAM. You have copies of all of these suggestions here, Mr. Shea?

Mr. SHEA. I will have the mimeographed copies.

Mr. FENNING. Mr. Chairman, you suggested at the last session that I collect and put in form the amendments that I have proposed. I have them here, and maybe if they were presented to Mr. Shea now he might look at them.

STATEMENT OF MAJ. FRANCIS H. VANDERWERKER, OFFICE OF THE JUDGE ADVOCATE GENERAL

Major VANDERWERKER. Mr. Chairman, at this time I would like to give to you for the record a letter from the War Department officially stating its position in general approval of the terms of H. R. 3359. At the time of my testimony last week I did not have that, and I have now secured it, and we should like to present it for purposes of the record.

The CHAIRMAN. In view of the fact that you are presenting this in person, would you mind reading that so that the rest of the members of the committee can hear it at the same time, together with the others that are here, patent lawyers and nonpatent lawyers. Major VANDERWERKER (reading):

WAR DEPARTMENT, Washington, February 24, 1941.

Hon. CHARLES KRAMER,

Chairman, Committee on Patents,

House of Representatives.

DEAR MR. KRAMER: The War Department desires to take this opportunity to express to the Committee on Patents its favorable opinion concerning the enactment of H. R. 3359, Seventy-seventh Congress, first session, "To amend the act relating to preventing the publication of inventions in the national interest, and for other purposes," believing that it would strengthen existing law designed to preserve the secrecy of military inventions necessary to the national interest and public safety.

The provisions contained in the bill H. R. 3359 are substantially identical to the provisions of an alternative to the bill S. 4410 (76th Cong., 3d sess.), "To protect the United States in respect of inventions usable for or against the national defense, and to protect against disclosures detrimental to the public interest relating to the national defense,” which alternative bill was prepared and approved by the War Department and submitted to the Bureau of the Budget, but which was never submitted to the Seventy-Sixth Congress, due to the expiration of its term.

The amendment (act of July 1, 1940, Public, No. 700, 76th Cong., 3d sess.) to the act of October 6, 1917 (40 Stat. 394; 35 U. S. C. 42) which the present bill is intended to amend, was supported by the War Department as a measure necessary for preserving the secrecy of those devices of military nature considered essential to the national defense and public safety. In the administration of the act of July 1, 1940, it has become apparent that certain loopholes exist by which both the terms and the spirit of the act may be evaded. The present bill is designed to strengthen the act in these respects, by establishing a system of compulsory licensing for foreign filing, and providing increased penalties for its violation.

The War Department is accordingly in favor of the general purposes of the bill and considers its early enactment as necessary for the added protection of the class of inventions in question and recommends that it be given the careful consideration of your committee, with a view to its early enactment.

Because of the fact that this bill has never been submitted formally to the War Department for report, the views herein expressed have not been referred to the Director of the Bureau of the Budget for determination as to whether they are in accord with the program of the President. They are consequently to be interpreted as the views of the War Department only, and to involve no commitment as to the relationship of this legislation to the program of the President.

Sincerely yours,

(Signed) ROBERT P. PATTERSON, Under Secretary of War.

The CHAIRMAN. Major, have you any suggestions with reference to the suggested amendments that Mr. Shea has just offered, or haven't you had time enough to consider those?

Major VANDERWERKER. Except to say, Mr. Chairman, that it appears to me to be more a question of form and language, and still preserve the intent and purposes of the bill, and from General Shea's reading of them, they seemed to me to be entirely satisfactory. It may be that on closer inspection there might be some little word or something that might have to be changed, but in general I would say that they are entirely satisfactory to the War Department.

We have not had an opportunity to go over them with General Shea, however.

The CHAIRMAN. We will give you an opportunity to do that.
Major VANDERWERKER. Thank you.

The CHAIRMAN. Commander Caldwell, have you any suggestions with reference to the suggested changes that were taken up since you were last here?

STATEMENT OF LT. COMDR. K. C. CALDWELL, OFFICE OF THE

JUDGE ADVOCATE GENERAL, UNITED STATES NAVY

Lieutenant Commander CALDWELL. I do not think that I need to take up a great deal more of your time. Of course, we have not had the opportunity to go over these changes in the bill submitted by Mr. Shea, but in the light of his statement regarding the question of the need for more elucidation and clarification, until there is a chance for more study, I would say that there is no obvious objection to it on our part.

As a further statement for the record, and to follow in accord with that which was made by the representative from the War Department, I would like to inform this committee that the Navy Department in its stand is substantially that of the War Department, with that reservation which was also included in that for the War Department, that this has been submitted by the Navy Department to the Budget and has not been cleared yet, and of course it is clear to you here in this committee that we are held down to certain restrictions, and until we have that clearance from the Bureau of the Budget as to it being in accord with the program of the President, of course you will excuse us from expressing or going any further than that as to what our own Navy Department feels.

That statement is this, that the Navy Department feels this bill in substance is good and desirable and early passage is recommended.

The CHAIRMAN. Commissioner Coe, have you any suggestions to make this morning, with reference to the suggested amendments that Mr. Shea has proposed?

STATEMENT OF CONWAY P. COE, COMMISSIONER OF PATENTS

Mr. CoE. Mr. Chairman, I have only this to say, that as General Shea enumerated them, I think that in many respects they are improvements on the draft of the bill as it now stands.

I should also say that I do not think that there is any pride of authorship about the bill.

The CHAIRMAN. I have none.

Mr. COE. The purpose is objective, to get an effective bill that will protect the inventions of the United States.

Subject to a little more study of at least the first amendment suggested by General Shea, I find myself in accord with the suggestions. Other than that, I think it probably is an improvement on the present bill.

Mr. LANHAM. There would be no practical interference, would there I mean so far as the practices of the Patent Office are concerned-there would be no objection by the Patent Office?

Mr. COE. No; if the bill is practical, I think the suggested amendments would also be practical.

Mr. HEIDINGER. Have you examined the suggested amendments of Mr. Fénning?

Mr. COE. Yes; and I have addressed a letter to the committee, pointing out those that I think should be adopted (see appendix). I agree with General Shea that some of suggested amendments can be adopted without any adverse effect upon the bill. As to other restrictions suggested by Mr. Fenning, I would not commit myself as being in accord with them.

The CHAIRMAN. Mr. Mothershead, have you any suggestions to make?

Mr. MOTHERSHEAD. Mr. Shea expressed the views of the Department, and I have nothing to add to those.

Mr. LANHAM. Mr. Chairman, if I may make this statement, it seems from the standpoint of the Patent Office, from the standpoint of the War and Navy Departments, except for the fact that they have not had time to study the exact verbiage of the suggested amendments with General Shea, that they might well be adopted just as soon as these various organizations can give us their approval of them, or make any suggestions in a change of a word here or there. I would suggest that with reference to this that by the next meeting of the committee, when they have had time to look this over, and if there are no suggestions made for amending the suggestions of General Shea, that we might then very easily adopt them, and that we might now take up for consideration the amendments that Mr. Fenning has offered, which are not embraced in the proposed suggestions or proposed amendments of General Shea.

The CHAIRMAN. That was my idea, Mr. Lanham, and, Mr. Fenning. would you like to be heard again on that?