The grand total heat load of the other sections of the ground floor, not subject to sun load, is estimated at 445,000 B. t. u. per hour, which when divided by 12,000 B. t. u. per hour, gives an estimated tonnage requirement of 37 tons.

As shown on page 39 of the justifications, the existing heat load of the building has been greatly increased since original occupancy through the converting, from year to year, of most of the direct lighting fixtures to indirect lighting and the installing of additional lighting fixtures to provide adequate lighting for present occupancy conditions, which has resulted in an increase of nearly 400 percent in the light load. Also, many more persons occupy offices and other spaces than originally planned (the occupancy of the building having increased since 1940 from 200 to 371 officers and employees).

It is estimated that, as a result of this increased light load and increased occupancy, the heat load of the rooms on the first, second, and third floors of the building which are now air-conditioned has been increased by approximately 600,000 B. t. u. per hour, which when divided by 12,000 B. t. u. per hour, indicates an increase of 50 tons over original refrigeration requirements. As the two existing refrigeration machines of 374 tons total capacity, when planned and installed in 1931-34, provided only a small amount of spare refrigeration, the machines are unable, without cutting off service to one or more sections of the building, to carry this extra load; and the third refrigeration machine requested for 1949, when installed, should be of sufficient capacity to handle the present 50 tons deficiency.

63

Estimated heat load of outside rooms, ground floor: 755,000 B. t. u. per hour plus 12,000 B. t. u. per hour..

Estimated heat load of inside rooms and other spaces, ground floor: 445,000 B. t. u. per hour divided by 12,000 B. t. u. per hour__Estimated heat load added to the other (air-conditioned) floors of the building, since original occupancy, over and above the operating capacity of the present plant: 600,000 B. t. u. per hour divided by 12,000 B. t. u. per hour___

Total_

Mr. STEFAN. Thank you very much, Mr. Lynn, and your staff.

MONDAY, DECEMBER 15, 1947.

UNITED STATES COURT OF CUSTOMS AND PATENT

APPEALS

37

50

150

STATEMENTS OF HON. FINIS JAMES GARRETT, PRESIDING JUDGE; HON. CHARLES S. HATFIELD, ASSOCIATE JUDGE; AND JOSEPH G. GAUGES, MARSHAL

SALARIES AND EXPENSES

Mr. STEFAN. We are now going to take up the item of the United States Court of Customs and Patent Appeals.

This item appears on page 55 of the justifications and page 14 of the committee print.

We have with us the Honorable Finis Garrett, presiding Judge, and Judge Charles Hatfield and Mr. Joseph G. Gauges, the marshal.

STATEMENT ON APPROPRIATIONS 1948 AND ESTIMATES, 1949

We will insert page 55 of the justifications in the record at this point.

(The justification table referred to is as follows:)

Statement relating to appropriation estimate to current appropriation—salaries and expenses, United States Court of Customs and Patent Appeals

Mr. STEFAN. I notice that the appropriations for 1948 were $168,000. The estimate for 1949 is $177,400, or an over-all increase of $9,400.

INCREASE FOR PERSONAL SERVICES

I notice that you are asking for $6,040 for new personnel, $1,100 for within-grade salary advancement, $260 for regular pay in excess of the 52 weeks' base, and $2,000 for the increased cost of printing and binding.

Do you have a brief statement to make, Judge Garrett?

Judge GARRETT. In general, the only increase outside of what we might call the regular routine is for the two stenographers that we are asking for.

Mr. STEFAN. The two stenographers for $6,040?

Judge GARRETT. Yes. Their salary is fixed on the basis upon which the salaries of those now employed were fixed. The salaries of our employees run according to the civil-service classification, and in that respect we are governed accordingly.

DISCUSSION OF WORK LOAD

Mr. STEFAN. Tell us something about your work load and some of your cases now.

Judge GARRETT. The reason for asking for this additional assistance is due to two or three factors. One might be described as being somewhat cumulative. When one of our secretaries or law clerks-they are designated law clerks happens to get ill, the judge is up against a pretty hard proposition to keep up with his work. Of course, that is

likely to happen, and, as a matter of fact, has happened several times. Two years ago my own law clerk sustained an injury that kept her for months in a hospital. I managed to get along by calling on the law clerks of other judges and some of the help in the marshal's office, but it was very hard to work under those conditions. There are times also when a judge of our court could use two stenographers, if they were available.

In addition, although our request was not originally predicated upon it, we anticipate that under the new Trade-mark Act, commonly referred to as the Lanham Act, which became effective the 5th of July-it was passed in July of 1946 but did not become effective until 1947, and which is a very comprehensive and sweeping act-that we are going to have a large additional amount of work. The judges can easily use two additional secretaries, we think, to the advantage of the court and in expediting the public business. I say secretaries; I should say stenographers.

I would hope that we could procure stenographers with some legal training, so that they may help the judges in research work, looking up authorities, and so forth. Whether we can do that at the salary provided, I do not know. Let me say incidentally that there has been quite an increase in appeals from the Patent Office during the last 3

months.

EFFECTS OF NEW TRADE-MARK ACT

Mr. STEFAN. Judge Garrett, tell the committee, please, just in what way this new Trade-Mark Act is going to increase your work? What does it provide for, briefly?

Judge GARRETT. It will be pretty difficult to do that without going pretty fully into the act, sir. It is a very comprehensive act which changes in many respects the trade-mark law which has been in effect since passage of the Trade-Mark Registration Act of 1905, and the amendments subsequently enacted.

Mr. STEFAN. When the record comes to you you may give us some added details.

(The following was submitted later:)

Under the trade-mark registration laws in force prior to the Lanham Act, neither the Commissioner of Patents nor our court, speaking generally, was clothed with authority to consider and apply the equitable principles appertaining to laches, and estoppel in inter partes cases-that is interferences, oppositions, and cancellations. The Lanham Act provides that authority, section 19 thereof providing:

"In all inter partes proceedings equitable principles of laches, estoppel, and acquiescence, where applicable may be considered and applied. The provisions of this section shall also govern proceedings begun in the Patent Office and not finally determined." (Italics supplied.)

Section 47 (b) of the act provides that, in any case in which an appeal is pending in any of the courts (naming them) having jurisdiction in trade-mark registration proceedings at the effective date of the act, “* ** * the court, if it be of the opinion that the provisions of this act are applicable to the subject matter of the appeal, may apply such provision or may remand the case to the Commissioner * * for the taking of additional evidence or a new trial or for reconsideration of the decision on the record as made, as the appellate court may deem proper."

Just how many provisions of the new act may be found applicable to cases now pending in our court cannot be determined at this time, but it is clear that in many of the cases referred to in section 19 the provision will be applicable. In any event, we shall have to determine on the facts of each case whether it is applicable.

I might add that already the question has arisen in cases which stood for hearing at the first patent session of our October 1947 term, and in one of them a decision written by Judge Hatfield has been handed down. I may say that the new act is one in which there is an extraordinarily wide interest among members of the legal profession, particularly those who specialize in the practice of trademark law, and, of course, there must be a wide interest among businessmen because it is a very vital act to them. There was a large demand for copies of the opinion in the case already decided which we were unable to supply because of lack of personnel. The law clerks were too busily engaged to make copies other than 10 official copies which are made of every opinion, and we have no fund with which to print advance copies. It resulted that Judge Hatfield, in order to accommodate members of the profession, loaned his file copy to the patent bar association and it made copies for distribution generally.

Another case involving the question has been heard but not yet decided. Our request for the two additional stenographers was really predicated upon the state of the court's business prior ot the effective date of the Lanham Act, but that act, now that the court has had occasion to study its provision to some extent, is thought to furnish a strong additional reason for our request.

Perhaps I should say that in our justifications (p. 57), presented first to the Budget Bureau and now before your committee, we referred to the Lanham Act, stating that it would become effective July 5, 1947, and that appeals under it would probably begin reaching us from the Patent Office about July 1948. This is the probability so far as appeals in cases arising under the Lanham Act is concerned, but the act makes certain of its provisions retroactive, so to speakthat is, makes certain of its provisions applicable to appeals of cases which arose under prior laws, and hence we are confronted now with the necessity of considering such provisions.

Mr. STEFAN. How many judges are on the court?

Judge GARRETT. Five. There are only four now. Judge Bland resigned to take effect the first of this month. That vacancy has not yet been filled.

REPORT OF COURT FOR FISCAL YEAR 1948

Mr. STEFAN. We will put into the record at this point, with the consent of the members of the committee, your report for the fiscal year ending June 30, 1947, which gives a pretty good idea of your work load.

(The tabulation referred to is as follows:)

Report of the U. S. Court of Customs and Patent Appeals for the fiscal year ending June 30, 1947

EFFECT OF NEW TRADE-MARK ACT

Mr. HORAN. You state in your justifications that you do not know what that potential is because of the Trade-Mark Act.

Judge GARRETT. I take it you have reference to the new TradeMark Act. That is quite so. Numerically, we could not say how many more cases we will have. We can say that it will result in much new litigation. I shall be very glad if you will permit Judge Hatfield to supplement my statement.

Mr. STEFAN. If Judge Hatfield has a statement to make, I shall be very glad to hear him.

Judge HATFIELD. I do not have much to add to what Judge Garrett has said. I happened to write the first case in which the new Trade-Mark Act was said to be applicable. Counsel for appellant in that case is filing a writ of certiorari in order to secure a review of that decision by the Supreme Court. That case involved two questions: (1) If the new Trade-Mark Act was applicable to the issues there involved and (2) if so, whether the law relating to descriptiveness of a trade-mark had been altered by the Congress. In that case we had, in addition to supplemental briefs of counsel for the parties, six additional briefs by different law associations. Counsel in the case disagreed as to whether the new law applied, but each of those who filed as amicus curiae were of opinion that the new law did not apply but that if it did, the Congress had not changed the meaning of descriptiveness provided in section 5 of the Trade-Mark Act of February 20, 1905. We held in that case, on the facts presented, that the new trade-mark law did not apply but that if we were wrong in that conclusion, it was not the purpose of the Congress to change the meaning of the law as applied to descriptiveness of a trademark as provided in section 5 of the Trade-Mark Act of February 20, 1905.

We have on appeal in this court many cases which involve, or may involve, the application of the new Trade-Mark Act. For many years this court has tried to economize and do our work as economically as possible, and for many years we have needed additional help, particularly regarding secretaries who might take dictation and transcribe their notes. It has now reached the point where it is practically impossible for a judge of this court to keep up with his work with only one stenographic law clerk. Furthermore, in the event of illness or absence from work of a stenographic law clerk, the judge is handicapped in the expedition of his cases. Personally I dictate all my opinions and in a particularly close question it requires most careful consideration. Even if an opinion is written out in longhand, it is, nevertheless, necessary that a secretary transcribe the opinion. I have been on this bench for nearly 25 years and during all of that time I have wondered why we have not applied for more aid.

I may say in conclusion that the new Trade-Mark Act has merely added to the work of the court and I am sincerely of opinion that we should have at least two additional secretaries, as applied for. Mr. STEFAN. Thank you very much.