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The CHAIRMAN. We will now adjourn until 10.30 o'clock to-morrow morning and will then have Captain McMillan here. He is in the War Department, I believe, Senator Dill.

Senator Dill. Yes; he is the patent man in the War Department. He knows all about radio patents and other patents during the war time.

The CHAIRMAN. Very well, the committee will now stand adjourned until to-morrow morning at 10.30 o'clock.

(Whereupon, at 11.25 a. m., the committee adjourned to meet the following day, Friday, May 24, 1929, at 10.30 o'clock a. m.)

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COMMISSION ON COMMUNICATIONS

FRIDAY, MAY 24, 1929

UNITED STATES SENATE,
COMMITTEE ON INTERSTATE COMMERCE,

Washington, D. C. The committee met, pursuant to adjournment on yesterday, at 10.30 a. m., in room 412, Senate Office Building, Senator James Couzens, presiding.

Present: Senators Couzens (chairman), Sackett, Brookhart, Kean, Dill, Wheeler, and Wagner.

The CHAIRMAN. The committee will be in order. We have Colonel McMullen, of the War Department, with us this morning. Colonel McMullen, kindly state your full name and position so that we may have it for the record.

STATEMENT OF COL. J. I. MCMULLEN, IN CHARGE OF PATENT

WORK, JUDGE ADVOCATE GENERAL'S OFFICE, WAR DEPARTMENT, WASHINGTON, D. C.

The CHAIRMAN. I think Senator Dill has some questions he wishes to propound to you, Colonel McMullen.

Senator Dill. I want to ask you, first, if you know anything about the litigation affecting the Von Bronck patent as compared to the Alexanderson patent.

Colonel MCMULLEN. Yes, sir.
Senator Dill. Will you please tell us what you know about that?

Colonel McMULLEN. Well, that patent was litigated in a sort of left-handed way in New York, and the Alexanderson patent was given priority over the Schlomilk & Von Bronck patent. The Von Bronck patent was litigated up to the Supreme Court in Canada, where it was decied that it had priority.

Senator Dill. In Canada it went to the highest court?
Colonel McMULLEN. Yes, sir.

Senator DILL. But the litigation in this country was never carried beyond the United States district court?

Colonel McMULLEN. No, sir. It was a more or less informal proceeding. It was not really a litigation on the question of the Schlomilk & Von Bronck patent.

Senator DILL. What is the Schlomilk & Von Bronck patent?

Colonel McMULLEN. Well, it is called amplification of tuned radio frequency. It is a circuit

Senator Dill (interposing). Is it similar to the Alexanderson patent?

Colonel McMULLEN. Well, it is similar, I should say. While it is different, yet patentably it is more or less the same-i mean from a patent standpoint.

Senator DILL. How did this Government get it?

Colonel McMULLEN. We seized the patent immediately succeeding the armistice, I should say about January, 1919, or it may have been in December, 1918.

Senator Dill. What was the nature of the proceeding in New York? You say it was not a regular case, explain it.

Colonel MCMULLEN. It is my recollection, or rather it was my impression at the time, that the suit was a rather put-up job.

The CHAIRMAN. In order to have the patent validated?

Colonel McMULLEN. Yes; in order to have the Alexanderson patent validated over the other one was the way it looked to me.

Senator DILL. Who were the parties to that suit.

Colonel McMULLEN. Well, I think the General Electric Co., or the Radio Corporation of America, on one side, but I have forgotten exactly; and it was some dealer, on the other side. It was a suit brought against some dealer in radio sets.

Senator DILL. Did the Government intervene in that case?
Colonel MCMULLEN. I think not.

Senator Dill. Was there anybody present representing the Von Bronck patent?

Colonel McMULLEN. I do not think so. I will say that there is a case pending out in Los Angeles now, in which the same question is involved, and in which the Government has not intervened.

Senator Dill. Yes; I know about that. And I wrote a letter to the Secretary of the Navy last winter calling attention to that situation, and urging that the Government intervene, but no action has been taken, as I understand the situation.

Colonel McMULLEN. I think the present Attorney General has a different idea about that. But there has been a pretty well-established idea in the Department of Justice, for a number of years, at least, that the Government as such has no right to maintain a monopoly of a patent. But I think they have changed their mind, because they raised the question about a year ago, and passed it around to all of the departments; and the departments were unanimous that the Government did have the right to maintain monopoly rights in & patent; and I think they almost unanimously recommended that such action be taken where the Government owns patents-and, as of course you know, the Government owns a lot of very important patents.

Senator Dill. In connection with what?
Colonel McMULLEN. Particularly in radio, and other patents, too.

Senator Dill. You have been handling cases that grew out of the war?

Colonel MCMULLEN. Yes, sir.
Senator DILL. What are those cases?

Colonel McMULLEN. Well, of course, I have been working, right now I mean, on a settlement of the German patents that were seized and that licenses were taken under, or that were used; and they include the Telefunken group of patents on radio.

Senator Dill. How many of them were there?

Colonel McMullen. There were 187, but when you come to wipe out the various technical things it boils down to about 110 or 112 patents altogether.

Senator DILL. What is the nature of those patents?

Colonel McMULLEN. They cover the entire field of radio communication, both receiving and transmission.

Senator Dill. And you spoke of settlements, with whom?

Colonel McMULLEN. With the German nationals-or, with the Telefunken company, and the matter is now under the war claims act, and it is before the war claims arbiter.

Senator Dill. Have those cases been bəfore the court?

Colonel MCMULLEN. No; the arbiter is the final court in the settlement of those cases so far as the United States is concerned, and so far as those cases in fact are concerned. It is for compensation for those patents.

Senator DILL. Have settlements been made in any of the cases?

Colonel McMULLEN. No, sir; none has been made yet. I might also say that all of the patents do not belong to the Telefunken company; there are a good many individuals in the group of patents.

Senator Dill. Have you made a study of the question of priority between the Schlomilk & Von Bronck patent and the Alexanderson patent?

Colonel McMULLEN. Yes, sir; two or three years ago I did.
Senator Dill. What was your conclusion about it?

Colonel McMULLEN. Well, my conclusion was that the Schlomilk & Von Bronck patent anticipate the Alexanderson patent. However, that would depend on the attitude of the court in accepting certain things as evidence. If they would accept certain evidence I think there would be no doubt about it. But, of course, you never know what a court is going to do about accepting evidence.

Senator BROOKHART. What is the character of the evidence that you refer to?

Colonel McMULLEN. Sketches, drawings, and so forth, that we have and that were made by Schlomilk & Von Bronck.

Senator BROOKHART. Those are always competent evidence in determining the history of a patent, are they not?

Colonel McMULLEN. If they are properly proved, yes.
Senator BROOKHART. Certainly, if they are properly identified.

Colonel MCMULLEN. Yes, sir. But there is some question about the identity of these sketches and drawings, just as there was in the de Forrest case in the feed back service; where he hae sketches, and so forth, which were not dated or witnessed, but which on his unsupported testimony he said were made at such and such a date.

Senator Dill. If these Von Bronck patents were declared prior to the Alexanderson patent, what would be the effect as to the Government's control over the manufacture of radio apparatus?

Colonel McMULLEN. Well, in that event of course the Government would have the upper hand. They have the upper hand now in a great many patents, but they do not use them.

Senator Dill. Do you say they have patents that they could license to manufacturers? Colonel McMULLEN. Oh, yes. Senator Dill. But they do not use them?

Colonel McMULLEN. Oh, they license them, yes, but they do not get anything out of them because they have not the authority of law to grant anything but nonexclusive revocable licenses, which are not really worth anything.

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