trade mark or design to which an enemy subject or any person carrying on business in an enemy state might be entitled. But before issuing such an order, the Board of Trade was required to satisfy itself that it was in the general interest of the country or section of the community, or of a trade, that such article should not be manufactured or such process carried on or such trade mark registered. The Board was authorized to grant licenses to any British subject for the exploitation of patents held by enemy persons, subject to such conditions as it might see fit. As to trade-marks, however, it could only avoid or suspend registration but not grant licenses.63 A large number of applications for orders avoiding or suspending enemy patents were granted by the Board of Trade,64 and licenses were issued to British subjects to manufacture the articles the patents for which were thus suspended, whenever in the opinion of the Board considerations of public policy made it desirable.65 British licensees in such cases were required to pay the royalties due the enemy patentee to the public trustee, the same to be held by him until the end of the war, when they would be disposed of as the government might determine. Licensees were required to keep accounts, allow the inspection of the same, and in some cases to allow the inspection of the business premises. The policy of the British Government was, therefore, not to confiscate the rights of enemy subjects in patents or registered designs granted under its authority, but merely to suspend them, and to confer upon British subjects for the time being the right to exploit them whenever the interests of the national defense or the economic life of the country required, the ultimate rights

63 Pulling, Manual of Emergency Legislation, pp. 226-236; Baty and Morgan, op. cit., pp. 546-550.

64 See an article by John Cutter, K. C., in the Solicitors' Journal and Weekly Reporter for November 14, 1914, p. 54. See also the issue of the same journal for November 7, 1914, p. 39.

65 British Patent Journal, February 21 and May 9, 1917. With a view to safeguarding British capital invested in the manufacture of articles controlled by German patents, it is said that the British Government gave assurances to licensees that they would be allowed to continue to exploit such patents after the close of the war and until their expiration. See an interview by Mr. A. E. Parker, a New York patent attorney, in the New York Times, April 14, 1917, and an interview by Mr. Lawrence Langner, ibid., April 13, 1917.

of the owners being preserved. With a view to preserving the proprietary rights of British subjects in patents issued to them by enemy governments, the Board of Trade on September 23, 1914, granted a general license for the payment in enemy countries of any fees necessary for obtaining the grant or renewal of patents or for obtaining the registration of designs or trade-marks or the renewal of the same in enemy countries. By way of reciprocity, the German Chancellor, on October 13th, issued a proclamation allowing payments to be made in England for a similar purpose by persons domiciled in Germany, and subsequently this privilege was extended to allow payments to be made in France, Russia and Roumania.66

French Policy. The policy of the French Government was similar in principle to that of Great Britain. The matter was not dealt with by legislation, however, until some ten months after the outbreak of the war. By an Act of Parliament of May 27, 1915, the exploitation of patents and the use of trade-marks owned by German and AustroHungarian subjects, or held in their behalf, was forbidden in the interest of the national defense. There was no intention, however, of revoking or confiscating them. The Act provided that where the manufacture and sale of the patented article was necessary to the national defense or was in the public interest, the government might exploit directly the patent or grant the privilege of exploitation to a French, allied or neutral concessionaire. Assignments of patents, the granting of licenses, and transfers of trade-marks, properly made before the outbreak of the war to enemy subjects, were to be respected and given full effect, but the beneficiaries were forbidden to make any payments to enemy subjects. No grant for a patent for which application had been made since August 4, 1914, in the case

67

66 But by a proclamation of December 28, 1916, the permission thus granted to pay fees of this kind in enemy countries was restricted so as to apply only to subjects of Germany or her allies and to neutral persons. A British subject, therefore, domiciled in Germany could not avail himself of this privilege. See Huberich in the Solicitors' Journal and Weekly Reporter, Vol. 61, p. 180.

67 Text of the law in Reulos, Manuel des Séquestres, pp. 23 ff., and Clunet, 1915, pp. 258 ff. See, also, Théry, "Emergency Legislation of France," London Solicitors' Journal, October 23, 1915, pp. 4-5. The texts of the laws and ordinances of France, Germany, England and Austria-Hungary relating to the treatment of enemy patents may be found in Clunet, 1915, pp. 960-978.

of German subjects, or since August 13th in the case of AustroHungarian subjects, could be made unless otherwise ordered. As in other countries, French owners of German patents were allowed to transmit to Germany the necessary sums for the payment of fees · for renewal and the like.

German Policy.

By an ordinance of September 10, 1914, the Patent Office, upon application, was empowered to grant to the owner of a patent, who by reason of the war was placed in a position of not being able to pay the annual fees, an extension not exceeding nine months, beginning with the date when payable and without penalties. Furthermore, where it could be shown that by reason of the state of war a person had been prevented from complying in due time with any regulation prescribed by the Patent Office, a restitutio in integrum might be ordered, provided application was made within two months from the date when the act should have been done. These provisions operated in favor of subjects of a foreign state only if similar concessions were granted to subjects of the German Empire by the foreign state, and if such reciprocity had been recognized by notification in the German Official Gazette.68 As has been said, the German Government by way of reciprocity allowed Germans holding patents in England to make the necessary payments there for the purpose of preserving or renewing their patents.

In October, 1914, the Reichsgericht was called upon to decide the question as to the rights of a citizen of France who had applied for a patent in Germany under Article 4 of the Paris Convention of 1883 for the international protection of industrial property. This convention had been duly approved and ratified by the Bundesrath and Reichstag, and was held to be a part of the law of the German Empire. The court ruled that until a law had been passed limiting the rights of enemy aliens under the convention, they must be regarded as entitled to the same protection as those of German subjects. War, said the Imperial Court, is a contest between states as such and not between peoples; hence, enemy subjects must be assimilated to the condition of nationals in respect to their private rights. 68 Huberich, op. cit.

69

Therefore, they were entitled to the same protection as that which they enjoyed before the outbreak of the war, subject only to such exceptions as might have been made expressly by law. The provisions of the above-mentioned convention could not, therefore, be regarded as having been terminated or suspended by the outbreak of the war between the contracting parties. Even if the convention had been so terminated or suspended, said the Imperial Court, it would have had no effect upon vested rights of enemy aliens. The applicant had filed his application before the outbreak of the war and had thereby acquired a vested right under Article 4 of the convention. In conclusion, the court declared that international conventions dealing exclusively with civil matters are not affected by war, and unless legislation to the contrary based on reprisal has been enacted, judges must give effect to such conventions."

70

The British Comptroller of Patents made a similar ruling in respect to the status of copyrights held in England by German authors.

By an ordinance of July 1, 1915," however, the Bundesrath conferred on the Chancellor power to limit or suppress in the public interest the rights of enemy subjects and of persons residing in enemy territory, in respect to patents and trade-marks. But, as in other countries, the exploitation of enemy patents under specified conditions, when it was required by the public interest, could be conferred on German licensees, and in fact such licenses were granted in a good many cases, the royalties due to the owners being paid into the Imperial Treasury.72

Apparently the only substantial difference between the legislation of Germany and that of the other countries was the authority which seems to have been conferred on the Chancellor by the ordinance mentioned to abolish the rights of enemy patentees. It has

69 The Supreme Court of Japan, however, seems to have held that the outbreak of war between Germany and Japan suspended the convention as between those two Powers. Text of the decision in Clunet, 1916, p. 653.

70 The text of this decision, so highly creditable to the Reichsgericht, may be found in Soergel, Kriegsrechtssprechung und Kriegsrechtslehre, p. 75; French translation in Clunet, 1916, pp. 1314 ff.

71 French text in Clunet, 1915, pp. 962 ff. and 1916, pp. 105-106.

72 Some instances are mentioned in Clunet's Journal, p. 107, 1916.

been stated, however, that the power thus conferred was exercised only in a limited number of cases.73

Legislation in the United States. The status of patents, trademarks and copyrights held in the United States by enemy subjects was defined by the Trading with the Enemy Act of October 6, 1917." This Act allowed enemy subjects to file applications in the United States for patents, trade-marks and copyrights," and to pay the necessary fees, and in case of inability to make the payments or perform other necessary acts on account of the war, they were to be allowed an extension of time up to nine months, provided their governments accorded reciprocity of treatment. With the consent of the President, payments of fees might be made in the enemy country by American citizens for the renewal or preservation of their patents, trade-marks and copyrights in such country. As in the other belligerent countries, provision was made for granting licenses to American citizens for manufacturing or producing, during the duration of the war, articles patents for which were held by enemy subjects, and for using trade-marks, copyrights, etc. The authority to grant licenses was delegated to the President to be exercised by him whenever in his judgment the public welfare required.76

73 Clunet, 1917, p. 106. As to Austrian legislation, see Clunet, 1915, pp. 968 ff. In August, 1916, the Austrian Government, "by way of retaliation" against England and France, decreed that patents and trade-marks held by the nationals of these countries might be restricted or abolished by the Minister of Public Works, in the public interest. London Solicitors' Journal, August 26, 1916, p. 713. According to the press dispatches the Russian Government went to the length of "appropriating" all patents owned by Germans and relating to "war inventions," and declared all others to be "invalid."

74 The provisions of the Act applied equally to subjects of governments in alliance with an enemy of the United States.

75 On April 16, 1918, however, the President issued an order directing that no patents or copyrights should in the future be issued to enemy subjects, and the permission given American citizens to apply for patents in enemy countries was revoked. It was stated in October, 1917, that 200 applications for patents from German subjects were on file in the Patent Office, but that action on the same was being deferred until information was received as to what policy Germany was pursuing.

76 The President in turn delegated to the Federal Trade Commission the power thus conferred upon him. See the Executive Order of October 12, 1917, in Supplement to this JOURNAL, January, 1918, p. 51.