tion clause of the bill clearly excepts patent-infringement suits. The following is a discussion of the problem. Title 35 of the United States Code, section 70, states that the several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions, and upon a decree being rendered in any case for an infringement the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby. Moreover, if the damages or profits are not susceptible of calculation and determination with reasonable certainty, section 70 provides that the court may hear opinion or expert testimony, and based thereon may adjudge and decree the payment by the defendant to the complainant of a reasonable sum as profits or damages for the infringement.

Section 70 further provides that the court shall have the same power to increase such damages, in its discretion, as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case.

The portion of section 70 which is affected by this bill provides as follows:

but in any suit or action brought for the infringement of any patent there shall be no recovery of profits or damages for an infringement committed more than 6 years before the filing of the bill of complaint or the issuing of the writ in such suit or action.

The question arises, does the above statutory provision bring patent infringement suits under the exception of the bill. If it does not, the following are reasons why the bill should be amended for that purpose.

The American Patent Law Association feels that this 6-year period was originally provided because of the peculiar nature of patent infringements and the difficulties, in many instances, of ascertaining the commencement of infringement by a defendant. This is particularly true in cases involving infringement of method patents. In many instances the carrying out of methods by companies is maintained with considerable secrecy and it is sometimes almost impossible for a patentee or patent owner to discover within a short period when a defendant has begun infringement of his method patent. Cause of action accrues in patent-infringement cases at the time the infringement occurs with knowledge that there is a patent.

The members of the committee on laws and rules of the association have given consideration to the bill and the Committee on the Judiciary of the House of Representatives will undoubtedly be interested in some of the following comments:

One of the committee members feels that if the bill does not except patent infringement suits it is undesirable and would impose definite hardships upon the small inventor. He feels that while the 6-year statute of limitations may be too long, certainly 1 or 2 years is too short a period. He feels that the facilities of small businesses either to discover acts of infringement or to cover up infringement are definitely limited when compared with the facilities of large organizations.

It is thought that there is considerable merit in this viewpoint. It is much more difficult for a small concern owning patents to discover when infringement of its patents, particularly its method patents, is being effected by a large concern. The pertinency of this contention

will perhaps be better appreciated when the problems of a small patent owner of discovering, for example, infringement of a method patent on a chemical process involving critical temperatures, pressures and reagents, are contemplated.

Another committee member would like to except from the provisions of the bill infringements which are concealed or secret. In other words, he feels that the bill should not apply to patent infringements unless such infringements are so open and notorious that the patent owner should be expected to learn thereof promptly. The dif ficulties of amending this measure to provide for such an exception are believed to be apparent.

If this bill applies to patent-infringement suits, it is thought that some provision should be made therein to prevent hardship to plaintiffs who find that they have brought suit in the wrong jurisdiction. This could probably be taken care of by amending the measure to provide that the period of limitations should relate back to the date when the first suit is brought and should not bar the plaintiff provided he brings suit in the proper jurisdiction promptly after the first suit has been dismissed without an adjudication of the merits.

The majority of the committee on laws and rules of the association and the majority of its board of managers feel that the 6-year period of recovery now provided by title 28, section 70, for patent-infringement suits is not unnecessarily long. A few of the members have indicated that this period could be shortened without undue hardship on patent owners, but in no instance should it be shortened to the terms provided in H. R. 2788 because of the peculiar nature of patent property and the difficulties of ascertaining when infringement has commenced.

Mr. FEIGHAN. Thank you. We just have about four or five more names here. We have no disposition to cut off this testimony. How many men here would like to testify?

STATEMENT OF C. A. MILLER, VICE PRESIDENT AND GENERAL COUNSEL, THE AMERICAN SHORT LINE RAILROAD ASSOCIATION

Mr. MILLER. Mr. Chairman, my name is C. A. Miller. I think my name is at the bottom of the list. I am vice president and general counsel of the American Short Line Railroad Association, with offices in the Tower Building in Washington.

That association has 317 members in 46 States. I simply want the record to show that our association endorses the bill very freely for the reasons that have been so well set forth by Mr. Bailey, Mr. Scott, and others. I have no desire to repeat what those gentlemen have said, but each point they have stated is applicable.

I represent the small railroads. I want to say to you Mr. Souby, general solicitor of the Association of American Railroads, which is the organization of the larger roads, is here, and I would like for him to have an opportunity to say a word.

Mr. FEIGHAN. All right.

STATEMENT OF J. M. SOUBY, GENERAL SOLICITOR, ASSOCIATION OF AMERICAN RAILROADS

Mr. SOUBY. Mr. Chairman, my name is J. M. Souby and, as Mr. Miller stated, I am general solicitor of the Association of American Railroads, which is a volunteer organization. I think the members of the association own about 95 percent of the total railroad mileage of the United States, and their gross revenue represents approximately, annually, about 99 percent of all the railroad operating traffic.

Just speaking for this association, which I represent, I want to go on record as favoring the purposes of the bill. I don't care to make any formal statement on it because it would be merely a repetition of what has been said before.

Mr. FEIGHAN. Thank you, Mr. Souby.

I have the names of Mr. Tyre Taylor, Mr. Bert St. Clair, Mr. Simpson, Mr. Austern. Are any of those gentlemen here? If any of the gentlemen wish to have a statement incorporated in the hearing we will be very glad to have the same filed with the clerk.

We will have hearings next week, at which time the opponents will be given an opportunity to testify. I don't know just what date that will be. We will tentatively set next Wednesday at 10 o'clock for further hearings, and notices to the contrary, if at all, will be sent out if you will leave your name with Miss Smedley, the clerk.

(Thereupon, at 12 o'clock noon, the hearing was adjourned.)

LIMITING THE TIME FOR BRINGING CERTAIN ACTIONS UNDER THE LAWS OF THE UNITED STATES

WEDNESDAY, JUNE 27, 1945

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met at 10 a. m., Hon. Michael A. Feighan presiding.

Mr. FEIGHAN. The committee will please be in order. It had been the intention of the committee to hear today only the opponents of this measure. It is my understanding that a couple of witnesses have come here from out of town, who want to be heard briefly. It is the intention of the committee to resume hearings again this afternoon at 2 o'clock. We do not want to deprive any of those who have come from out of town the opportunity of being heard today.

Our first witness is Mr. Hines.

STATEMENT OF LEWIS G. HINES, LEGISLATIVE REPRESENTATIVE, AMERICAN FEDERATION OF LABOR

Mr. HINES. Mr. Chairman, I am going to be very brief. I might say that I am the legislative representative of the American Federation of Labor. We have looked this bill over very carefully and we have made some survey of the general situation throughout the country. We find that in about 32 States the limitation is fixed on an average of 5 or 6 years. There are few States that have gone much below that. We believe the provision for a year, in this bill, is too short. We would recommend 5 years, which is in line with the average in the majority of States.

We feel that if there is Federal legislation enacted, there should be no provision that the States can go below that. This bill provides, "unless a shorter time be fixed in any applicable State statute." We would like to have that stricken out, because there does not seem to be much point in having a Federal statute which permits the States to go beyond or below the Federal provision. We believe there is merit to this bill, or the philosophy behind it.

Mr. SPRINGER. If you will permit a question at this point: Of course, this proposed measure, H. R. 2788, provides the limit, and that is the fixed limit unless a shorter or different time is fixed in any applicable State statute.

Mr. HINES. That is what we object to.

Mr. SPRINGER. That is, if the State statute provides a shorter time than that fixed by this proposed bill, then the State statute would

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