Foreign Relations of the United States, Diplomatic Papers, 1943, The British Commonwealth, Eastern Europe, the Far East, Volume III

861.24/1369

Memorandum by Mr. Elbridge Durbrow of the Division of European Affairs⁶⁰

[Washington,] December 23, 1943.

Mr. Barkley⁶¹ of the British Embassy called yesterday and handed me the attached draft of a proposed agreement⁶² between the United States, Great Britain and the Soviet Union covering the exchange of secret technical military information.

As indicated in my previous memorandum on this subject the British are pressing us to conclude such an agreement and have indicated that they feel that the following advantages would ensue therefrom:

1. Under the present arrangement with us and their bi-lateral agreement with the Soviet Union the British have to constantly consult the United States prior to turning over to the Soviets secret information on military devices of common development which causes considerable delay.

2. They feel that there are many secret military devices which a year ago were not known to the enemy but which have since fallen into their hands and therefore, since they are known to the enemy there should be no reason why they should not be made known to our ally.

3. In discussing this question with Mr. Blackett, a civilian technical adviser with the British Admiralty now in the United States, he indicated that British military experts were of the opinion that if we should make available in time many of the secret military devices which are not now available to the Soviet Government, they could be put into production and installed in eastern Siberia and thus put the Soviet Army in a better position to join in the fight against Japan and also make them more willing to do so.

4. As the British Government feels that even though we may not receive full and equal information from the Soviet Government covering their secret military devices, we will at least assist the Soviets in making it easier to “kill more Germans” and also further convince them of our sincerity in desiring to cooperate with them.

The Embassy has indicated that the British General Staff is taking up this question through the Combined Chiefs of Staff in Washington but hopes that the Department can indicate that it is favorably inclined to drawing up some such agreement.

It is not entirely clear why the British Government proposes the conclusion of a tripartite agreement on this subject instead of encouraging the United States Government to draw up a bi-lateral agreement similar to the one they have with the Soviet Government. I gained the impression, however, that the British Government is pressing for the tripartite agreement since they have found in actual practice that the escape clause in their present agreement with the Soviet Government has proved somewhat embarrassing. The escape clause now in effect between the two governments provides that each shall furnish all secret information on military devices to the other except in certain cases when reasons must be given for not disclosing the information.

In this connection, it will be noted in the attached draft agreement that the escape clause in Article 2 provides three reasons for withholding information from the other parties.⁶³ Mr. Barkley reading from a telegram discussing this question indicated that the British Government thought that the proposed escape clause would be more satisfactory than the one in the present British-Soviet agreement, since it contains three exceptions and if a tripartite agreement is concluded the escape clause could be invoked in certain instances without having to specify which one of the three exceptions applied to a particular device in question. In this manner the British Government apparently hopes to avoid having to give specific reasons in each case when it is deemed imperative not to exchange technical military information.

There is a possibility that since many of the technical military devices being used by the British and American forces are of common development the British Government may feel that in cases where it is deemed inadvisable to exchange information with Soviets, part if not all of the onus for this refusal can be placed upon the American Government.

Article 4 of the proposed agreement covers the use of technical information and data after the termination of hostilities. The proposed article is very general and, considering the completely different policy in regard to patents, royalties and licenses in the Soviet Union, it does not, because of its general nature, appear to give adequate protection to American firms against the use of trade secrets and patented devices after the termination of hostilities.

Under present conditions many American firms have, despite the somewhat general patent protection clause in the Master Lend-Lease Agreement, been reluctant to turn over specific technical details for use by the Soviet Government since they are apprehensive lest this information, which in many cases involves trade secrets, will be used to produce goods commercially which will compete with American goods in the world market after the war.

In this connection under the present arrangement with the War and Navy Departments requests by Soviet agencies for specific information regarding the manufacture or operations of the devices developed by American firms, are passed on from a military secret point of view by the War and Navy Departments and then the Department of State has addressed a letter to the firm in question along the lines of the attached letter to the Caterpillar Tractor Company, dated June 26, 1943.⁶⁴

It will be noted from the enclosure to the attached letter that the firm is told that in making available any such information “the Soviet Government must make such arrangements as may be necessary with the patentees or the original manufacturers of the given devices, for the reproduction or use of any features of such given devices, guaranteeing to such manufacturers or patentees a right to establish a claim against the Soviet Government for entire and reasonable compensation for such reproduction …”⁶⁵

It is felt that the wording of this paragraph might mislead American firms into the belief that the United States Government has some arrangements with the Soviet Government assuring that patentees will be protected after the termination of hostilities. There apparently is no such arrangement. It has been the experience in the past that it is difficult if not impossible for foreign firms to obtain adequate and complete protection for their patents used in the Soviet Union.

In view of the above it would seem advisable if an agreement for the exchange of secret military information with the Soviet Union is concluded, it should contain a more specific article giving greater assurance to American firms regarding the use of their patents or trade secrets after the termination of hostilities. If it should not be deemed advisable to incorporate this in the specific military secret agreement, it is felt that this question should nevertheless be covered simultaneously in a separate exchange of notes.

If such an arrangement is made not only would the Department be in a better position to give assurances to American firms that they would receive some patent protection in the Soviet Union after the termination of hostilities but also American firms might, in the interests of the war effort, be more willing during the war to make available to the Soviet Government various trade secrets and patented devices which up until the present time they have been reluctant to divulge.

Recently the Soviet Purchasing Commission in Washington and Soviet organizations in Moscow have asked for very specific information covering the manufacture of American products which, although they might be used during the war, could also be manufactured subsequent to the termination of hostilities for commercial use. In view of the possibility that this type of request will increase it is felt that this question should be considered most fully in connection with any agreement we might make with the Soviet Government for the exchange of military information during the war.

As an indication of the type of detailed information requested by Soviet organizations there is also attached a copy of a letter dated November 24, 1943 to the Caterpillar Tractor Company.⁶⁶ An official of the company discussing this letter indicated that the requests covered every possible detail regarding the manufacture of Caterpillar Tractors including heat treatment processes, et cetera. This official indicated that while his company was willing to assist the Red Army in every way in its fight against our common enemy they could not make effective use of this detailed information during the war but might be in a position to use it in the manufacture of commercial tractors after the termination of hostilities. Because of this possibility the Caterpillar official indicated that he did not believe his company would feel free to comply fully with the Soviet request.

If it should be decided to conclude the proposed tripartite agreement and incorporate therein an article giving further protection to American firms, this might be done by making provision therein for licensing contracts to cover the manufacture of the specific device after the war or the Soviet Government might purchase the right to exploit the patent or trade secret for a lump sum rather than to try to work out a royalty arrangement. It is understood that Amtorg in New York has in recent years been willing to purchase such rights in order to overcome the reluctance of American firms to “take their chances” with patent arrangements in the Soviet Union.

While it is believed advisable to take all necessary steps to assure that the Soviet authorities will receive information which they may need in the prosecution of the war it is not clear, for the following reasons, whether the conclusion of the tripartite agreement would in fact accomplish this end:

1. It is understood that under Lend-Lease we are furnishing the Red Army with all material and devices which it may require in its fight against the Germans.

2. If instead of furnishing the Red Army the various devices we should give them detailed information regarding the manufacture of these devices it is not certain that the necessary plant facilities could be constructed during the war to make effective use of them against the enemy.

3. As far as is known, the Soviet Government has not indicated that it desires to conclude an agreement for the exchange of secret military information. It may, therefore, be assumed that they feel that they are obtaining under present arrangements all important military devices available in the United States.

4. The possibility cannot be excluded that the British have suggested the conclusion of the tripartite agreement since they are not satisfied with their present arrangements with the Soviet Government on this question and hoped to effect a change by bringing us into the picture.

Elbridge Durbrow

60. Addressed to H. Freeman Matthews, Chief of the Division of European Affairs, and James C. Dunn, Adviser on Political Relations.
61. R. E. Barclay, First Secretary of the British Embassy.
62. Not printed.

63. Article 2 specified the three reasons as follows:

    • “(i) because the weapon, process or device is of such particular secrecy that the Government concerned considers that it should only be employed under certain limited conditions;
    • (ii) because the existence, employment or effect of the weapon, process or device is unknown to the common enemy, and the Government concerned considers that in order to prevent premature disclosure to them the information should be withheld until it can be used with the greatest possible effect against them;
    • (iii) because the weapon, process or device is in such an early stage of development that its disclosure would not in the opinion of the Government concerned be of use to the other contracting Governments in the war against the common enemy.”

64. Not printed.
65. Omission indicated in the original memorandum.
66. Not printed.