Senator DILL. Do you know whether or not they practice the same methods?

Colonel DAVIS. I do not, sir.

Senator DILL. De Forest does not sell transmitting tubes for broadcasting purposes now, does he?

Colonel DAVIS. I do not know, sir.

Senator DILL. Well, I thought you would know about your competitor, if he was not doing it.

Colonel DAVIS. No.

Senator BROOKHART. On that proposition, are the infringements by these companies to whom you have given licenses the same as by those companies to whom you have refused them?

Colonel DAVIS. Perhaps, yes-I think that is correct, sir.
Senator BROOKHART. Why discriminate?

Colonel DAVIS. The discrimination results from the fact that some stations are little stations in remote places where perhaps it would be difficult to get the capital to build the kind of station that we do build, and, if I may say so Senator, it is our practical contribution in small places. But we would not permit a great big station to be built in violation of our patents in one of the metropolitan communities and then furnish it such appliances as the builder could not make himself.

Senator BROOKHART. The reason for that is that it would be stronger competition for the other stations?

Colonel DAVIS. No, sir; I do not think that would be the reason. The reason would be that the great station is a profitable thing which we desire to sell ourselves, and we would not be willing to let the other chap go four-fifths of the way or five-sixths of the way in violation of our patents and then us help him the rest of the way.

Senator BROOKHART. But you do that identical thing with these other stations?

Colonel DAVIS. With the little ones, we have done it; yes, sir.

Senator GLENN. I suppose the reason you do that is that you do not see the opportunity of making any money operating those small stations and you do see an opportunity to make money selling the apparatus?

Colonel DAVIS. Senator, that is exactly correct. We could not go way down in the remote Southwest to a small place and build a little station without loss, so we are disposed to acquiesce in something that we do not think is legally right, but it is a practice, you might say, in which we acquiesce.

Senator PINE. The size of the station does not affect the legal principle involved, does it?

Colonel DAVIS. We think it does not, sir. So we solve the legal principle by licensing the little station.

Senator PINE. But you violate or you contribute toward the infringement of your own patents in licensing a little station, just the same as if you licensed a big one, do you not?

Colonel DAVIS. Except that it does not become an infringement at all when we license it. It ceases to be an infringement and it is something done by our express permission.

Senator PINE. I see.

Colonel DAVIS. We remove it from the sphere of infringement.

Senator BROOKHART. It seems to me, though, when you violate the purpose in that way it is a contributory infringement just as much as the other.

Colonel DAVIS. Well, so far as a specific case is concerned, if we attempted to move against the little man we had licensed we would find ourselves blocked by the principle of estoppel that the Senator from Illinois has pointed out.

Senator BARKLEY. In ohter words, it might be an infringement if you did not issue the license; if they attempted to operate in the same way without the license it might be an infringement?

Colonel DAVIS. In our opinion it not only might be but it would be. Senator BARKLEY. So that you acquiesce in it, whatever the status is, by acquiescing to the course pursued?

Colonel DAVIS. Yes.

Senator BROOKHART. Are these licenses issued before or after the infringement?

Colonel DAVIS. Almost always after. I think literally always. Senator DILL. Are there any broadcasting stations that are operating at this time that you have brought suit against that have not bought a part of their equipment from you?

Colonel DAVIS. None that I know of.

Senator DILL. There are none of them that you brought suit against that have not bought their equipment from you?

Colonel DAVIS. I do not know.

Senator DILL. You do not know of any that you have brought suit against?

Colonel DAVIS. Against an infringing broadcasting station; I do not know.

Senator DILL. Have you brought suit against any communications company for operating with equipment not sold by you?

Colonel DAVIS. As I believe I pointed out to the Senator in other hearings I am myself not responsible for the company's patent litigation. Its general litigation is my responsibility.

Senator DILL. Well, I never heard of it. That is why I asked you. Colonel DAVIS. Papers have been drawn for infringement cases concerning communications cases. Which of them have been filed and where they are I do not now know.

The CHAIRMAN. You said you had one other comment to make, I think?

Colonel DAVIS. I did, sir. This concerns the so-called Alexanderson patent and the Schloemilch and Von Bronk patent. Statements were made before this committee concerning the litigation where these two patents were involved. The Alexanderson patent belonging to our own people, and the Schloemilch and Von Bronk patent, which is a German patent, coming into possession of the Alien Property Custodian as a part of the war measures. A witness told you that the litigation establishing the Alexanderson patent was rather a put up job. That it was not real litigation. That in his opinion the Schloemilch and Von Bronk patent anticipated the Alexanderson patent, and that the proceeding was more or less an informal proceeding in the United States. It was not really a litigation on the question of the Schloemilch and Von Bronk patent. That in Canada the litigation had been real, and that there the

Schloemilch and Von Bronk patent had prevailed over the Alexanderson patent.

There was some comment by the witness to the effect that if the Government of the United States had asserted its rights under the Schloemilch and Von Bronk patent that the decision might have been different and in his opinion would have been different. There was some slight suggestion of dereliction on the part of the Govern

ment.

At that time I wrote to each one of the Senators what I intended to be and what I believe is a courteous letter pointing out the facts of the record. I wrote it to each Member of the Senate, and I would like now to make that letter a part of this record.

The CHAIRMAN. Without objection that will be done.

(The letter of May 31, 1929, from Manton Davis to various United States Senators is here printed in the record in full as follows:)

[Same letter to Senators James Couzens, James E. Watson, Simeon D. Fess, Robert B. Howell, Guy D. Goff, W. B. Pine, Frederic M. Sackett, Jesse H. Metcalf, Ellison D. Smith, Hamilton F. Kean, Key Pittman, C. C. Dill, Burton K. Wheeler, Harry B. Hawes, Robert F. Wagner, Alben W. Barkley, Smith W. Brookhart, Millard E. Tydings, and Otis F. Glenn]

RADIO CORPORATION OF AMERICA,

May 31, 1929.

MY DEAR SENATOR: Statements recently made before the Interstate Commerce Committee would lead one to conclude that the Alexanderson tuned radio frequency patent, under which among others R. C. A. has licensed certain radio manufacturers, has been sustained by the United States courts not so much on its own merits as because the litigation was not genuine and real but "was a rather put-up job."

These statements seems to assert that had the Government of the United States seen fit to urge before the courts the Schloemilch and Von Bronk patent, seized during the war, that patent would then have prevailed over the Alexanderson patent. Insinuations were that the Department of Justice had not heretofore been disposed to protect the Government's interests, but that recently there had been a change of policy on this subject.

Some of these statements were that the Alexanderson patent was "litigated in a sort of left-handed way"; that "the Von Bronk patent was litigated up to the supreme court in Canada where it was decided that it had priority"; that the litigation before the United States court "was a more or less informal proceeding. It was not really a litigation on the question of the Schloemilch and Von Bronk patent"; that this litigation was rather a put-up job." The witness said he thought the United States had not intervened in the litigation which sustained the Alexanderson patent but that the policy in this respect had recently been changed by the Department of Justice; that he had made a study of these patents and his conclusion was "that the Schloemilch and Von Bronk patent anticipates the Alexanderson patent.'

I have the honor to invite your attention to inclosed documents as follows: 1. An opinion dated August 24, 1926, rendered by Judge J. L. Bodine, of the United States District Court of New Jersey, in the Splitdorf case. (14 F. (2d) 643.) 2. A photostat copy of the brief filed in the Splitdorf case by the United States through Walter C. Winne, Esq., United States Attorney; Herman J. Galloway, Esq., Assistant Attorney General, and Harry E. Knight, Esq., special assistant to the Attorney General.

3. An opinion dated July 11, 1927, by Judge Thomas D. Thatcher, of the United States District Court of the Southern District of New York, in the Edmond case. (20 F. (2d) 929.)

May I ask your special attention to pages 12-16 of Judge Bodine's opinion in the Splitdorf case, where, after a studious and detailed comparison of the Alexanderson invention and the Schloemilch and Von Bronk patent, the court sustains the Alexanderson patent and winds up by saying that Alexanderson made "a truly great invention."

May I likewise ask you to examine the photostat copy of the brief filed by the Department of Justice in the Splitdorf case? Perhaps this brief may be esteemed an answer to those who, apparently without knowledge of the records they discuss, have criticized the Government of the United States, insinuating dereliction in these matters.

May I ask you to examine pages 3, 4, and 9 of Judge Thatcher's opinion, where the Alexanderson patent and the Schloemilch-Von Bronk patent are considered and the Alexanderson patent again sustained by another United States Court. The last paragraph on page 9 of Judge Thatcher's opinion discloses that the Edmond case was defended by the Atwater Kent Manufacturing Co. and this may be some evidence that the litigation was real and not "a rather put-up job,' since Atwater Kent as a result of this litigation took licenses and has since been paying royalties under the Alexanderson patent. No one doubts that the Atwater Kent organization has the ability effectively to present in court any available defenses.

The American litigation referred to was not appealed and is now final. In the Canadian litigation, on the other hand, the Alexanderson patent was sustained by the lower court, which decision was reversed by the Supreme Court of Canada, but jurisdiction of the controversy has been taken by the Privy Council, the highest appellate tribunal in the British Empire and there this Canadian litigation is still pending, undisposed of.

Our disposition is not to respond piece-meal to attacks but to await orderly opportunity to be heard. It seemed to us, however, that these statements and insinuations, which concern not only our organization but the Department of Justice as well, required early answer and the bringing before interested Senators of unanswerable refutations written in the records of the United States Federal courts. It had not appeared to us fair to the Senators themselves that they should feel impelled to continue a long course of examination assuming things to be true which were untrue when the truth could be so easily demonstrated by court records and so easily brought to their early attention.

I am, my dear Senator,

Yours faithfully,

MANTON DAVIS.

Senator DILL. Since that testimony the Canadian case has gone to England to the Privy Council?

Colonel DAVIS. It has.

Senator DILL. And it has been reversed?

Colonel DAVIS. It has been reversed, and the Alexanderson patent in Canada has prevailed even as it has in the United States.

Senator DILL. But the Government up to this time never has made any serious effort to establish the Von Bronk patent in this country? Colonel DAVIS. Well, apropos of that, sir, I would like to submit as a part of the record the brief of the United States in the Splitdorf case, which was one of the cases supporting the Alexanderson patent. The appearances, as they are in that case for the defendant, are Walter, G. Winne, Esq., United States attorney; Herman J. Galloway, Esq., Assistant Attorney General, and Harry E. Knight, Esq., special assistant to the Attorney General, who filed a brief asserting the Schloemilch and Von Bronk patent in that case, and I would like to file for the record a photostat copy of the brief that was filed on behalf of the Government of the United States in that case.

Senator DILL. Who were they appearing for, Mr. Davis?

Colonel DAVIS. "Brief as amicus curiae submitted by the United States" is the way the brief reads.

Senator DILL. I know, but were they representing the Department of Justice, the Alien Property Custodian, or the Navy?

Colonel DAVIS. They are United States attorney, Assistant Attorney General, and a special assistant to the Attorney General; that is the way they sign the brief.

Senator BROOKHART. You would not say that a brief filed as amicus curiae would bind the United States as a party?

Colonel DAVIS. No. That is not my point, Senator. Meaning by that that I express no opinion on that point. But I do express the opinion that the Government of the United States was not asleep in

this case, but, on the contrary, appeared and urged this patent and filed a brief in the case on behalf of the United States.

Senator DILL. In what court was that?

Colonel DAVIS. That was in the United States District Court of New Jersey.

Senator DILL. And did the case go beyond the district court?

Colonel DAVIS. No, it stopped there. May I introduce as a part of the record the opinion of the court in the Splitdorf case as well as the brief to which I have referred?

The CHAIRMAN. Without objection that will be done.

(The opinion of Judge J. L. Bodine, in the case of Radio Corporation of America v. Splitdorf Electrical Co., and the brief as amicus curiae submitted by the United States in the same case, are here printed in the record in full as follows:)

United States District Court, district of New Jersey. Radio Corporation of America, General Electric Co. and Westinghouse Electric & Manufacturing Co., plaintiffs, v. Splitdorf Electrical Co., defendant. In equity, No. 1669. Charles Neave, Stephen H. Philbin, Abel E. Blackmar, jr., and Harry E. Dunham, Esqs., for the plaintiffs. Clifton V. Edwards, Lawrence K. Sager, and A. D. T. Libby, for the defendant. Amicus curiae: Walter G. Winne, Esq., United States Attorney, Herman J. Galloway, Esq., Assistant Attorney General; Harry E. Knight, Esq., Special Assistant to the Attorney General.

BODINE, District Judge:

The patent in suit is United States Letters Patent No. 1173079 to E. F. W. Alexanderson, assignor to the General Electric Co. The specifications in part

state:

"The present invention relates to the selection of oscillations of a given wave length from mixed oscillations, and comprises systems suitable for tuning out interferences in radiotelegraphy."

"In accordance with the present invention, selective tuning is secured by the use of a plurality of resonant circuits arranged in cascade in such a manner that the selectivity of the system increases in geometric ratio with the number of circuits employed. The selective circuits are, respectively, interlinked by a relay controlling a separate source of energy to initiate oscillations corresponding to potential oscillations impressed upon the relay. As each tuned circuit is more or less opaque to disturbing oscillations differing in frequency from the oscillations to be selected, a certain percentage of the disturbances is eliminated in each circuit of the series, so that the purity of the incoming train of oscillations progressively increases as it is successively relayed. The relay preferably used for this purpose is an electron-discharge tube having an incandescent cathode, an anode and a grid."

The claims in suit are 1, 2, 3, 6, 7, and 9, to12, inclusive. For convenience, the claims fall into two groups, 1, 2, 9, and 12, and 3, 6, 7, 10, and 11. It was conconceded by the defendant that 1, 2, 9, and 12 read upon its device. It was also conceded at the argument that claim 3 was substantially like claim 2. Counsel for the plaintiffs was content that the court should withdraw from consideration, without prejudice, claims 6, 7, 10, and 11. Claims 1, 2, 3, 9, and 12 will be considered.

The claims are as follows:

"1. The method of selecting sustained oscillations of a given frequency from disturbing oscillations differing therefrom in frequency which consists in impressing all the oscillations upon a circuit, resonant to the frequency of the oscillations to be selected, thereby reducing the effect of disturbing oscillations in accordance with the degree of tuning of the resonant circuit, and controlling by means of the oscillations in said circuit an independent source of energy to initiate oscillations in step therewith and impressing the second set of oscillations upon a second circuit resonant to the frequency of the oscillations to be selected.

"2. A receiving apparatus for electromagnetic waves comprising a plurality of tuned circuits largely opaque to oscillations of other than a given frequency; means linking adjoining circuits, said means comprising a source of energy and