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patent, but the Government, not operating a business, has no need for this kind of protection. One of my friends, a patent lawyer in Minneapolis, has recently written to me saying:
If this bill attempts to give the Government the right to assign, license, or otherwise deal with patents on a selective basis, then I certainly am against it. It is my opinion when a patent is assigned to the Government, a merger is effected, so that legally the patent no longer exists.
Another friend, a patent lawyer in St. Paul, has written to me recently indicating that he agrees with my point of view that it is a perversion of our patent system for the Government to attempt to make itself the beneficiary of its own patent grants on inventions.
I have talked to and communicated with perhaps two dozen or so lawyers who have had familiarity with patents, and there is no one of them who has indicated that he feels that the Government has any constitutional power to own a patent on an invention where the patent has been granted by itself, or that it would be good policy for the Congress to attempt to invest the Government with such power.
In an address given in December 1945 by Bruce Brown, then vice president in charge of development of Standard Oil of Indiana, stated :
If there is attached to any plan for a national research foundation any provision in respect to Government patent policy which has as its objective the ownership by Government of as many patents as possible, the effect on any future war production program involving industry-Government cooperation would be appalling, At another point, observing that Dr. Vannevar Bush's proposal for a research foundation was based upon the need for nurturing basic research as distinguished from applied research, Mr. Brown observed that in such a field patents are relatively unimportant for the obvious reason that it is almost impossible to see how truly basic research could lead to patents. That latter is my own observation.
To argue for sweeping powers on patents such as are contained in the Senate bill on the one hand, and at the same time to maintain that the Government intends to confine itself to basic research and not allow its efforts to slop over to a very considerable extent into applied research, is contradictory. It is very contradictory. One would almost be suspicious of those two seemingly contradictory provisions.
At another point in his address Mr. Brown observed that the plan to nurture basic science is to subsidize projects of basic research at universities and colleges. He observes that if such subsidies are coupled with a legal demand that they, the universities and colleges, turn over any patentable inventions that happen to evolve in a program for which they receive some, but only a part, Federal subsidy is certainly a demand that the tail wag the dog. If the Federal Government, Mr. Brown says, attempts to set uniform rules for all universities, our universities will turn into uniformities.
I wonder what the Congress understands by the term "basic research” as used in the bill, which is a term clearly to be distinguished from applied research. On December 3, 1948, Dr. Robert Millikan, who, as you know, is of the California Institute of Technology, outlined some of the great pieces of research in the past, which are in a sense the parent, or surely the antecedent, of many of our wonderful creations of the present time. For example:
1. The discovery of the laws of force and motion in the fifteenth century was a requisite to the design of power machines of every sort that have come along since.
2. The discovery of the laws of thermodynamics during the century following the revolutionary war were fundamental to the internal combustion engine which in turn was necessary to the airplane.
3. The basic discoveries in respect to electronics discharge in high vacua were necessary antecedents to our entire development in the radio art.
4. The discoveries which led to the wave theory of light in the first half of the nineteenth century and the development of the electromagnetic theory during the decade or two following the War between the States were necessary antecedents of many developments which already have come about and probably of many more yet to come.
Presumably it is or should be this sort of thing that the Congress has in mind by the ierm “basic reesarch” in the National Science Foundation bill, and if it is, then there should be no concern to include a patent section.
What are some of the projects of basic research that are going on at the present time? The following surely are some examples:
1. Studies on nuclear physics and chemistry, in which the University of Chicago's Institute for Nuclear Studies is outstanding.
2. Studies on the causes and nature of cancer. 3. Studies on the causes of heart disease.
4. Studies on the kinetics of the formation of polymers, including rates of reaction and so forth, in which studies at the University of Illinois are important.
5. Studies on the physical nature of polymers, including the determination of shapes of polymers and such like which are going on at Cornell, Brooklyn Polytech, Minnesota, and other institutions.
If the purposes of the Foundation are kept to basic research, there is not much need for patents anyhow—even if we would look at the Government as a private corporation.
I would have some suggestions, but I am inclined to leave them out here. If the Congress thought there should be some depository for inventions that might be evolved, so that the Government could keep them secret for a while and after a while publish them and have them speak as of their filing date, that could be very easily accomplished by an amendment of the patent laws.
In conclusion, I want to say that I fear for our American patent system, which has done so much to advance this country industrially, if the United States takes on the role of a super-patent-holding company. If many millions or perhaps a few billions of public funds are spent by the Foundation annually, a sizeable amount of it to acquire patents, what private business enterprise standing alone would gamble its money and energies against such a state monopoly?
I think it would be better to abolish the patent laws than to emasculate them, and I think it would be emasculating them if the Congress set up a machinery so that the Government would get to be the owner and manipulator of thousands of patents.
That concludes my prepared statement.
Mr. O'HARA. Mr. Kinney, I don't know whether any member of the committee is a patent lawyer. I rather doubt it. I certainly am not. I have been very troubled about what little I know about patent law and the effect of this bill. You have just added to my concern over the very problem that you know well and have so ably discussed. I
presume that, as a patent lawyer, you approach it first on the principle and fundamental theory that constitutionally the Government has no right to own a patent. "Is that the principle!
Mr. KINNEY. Yes.' I do not think the Government should become the beneficiary of its own patent grants. I don't think that was ever the original intention. I think that that would be a very topsy-turvy arrangement.
Mr. O'HARA. Under that theory, if your company were to go out and expect to invest some considerable amount of money in the development of some industrial patents, they would be compelled, assuming this bill becomes law, to make a search of all these various patents that would come out of the Foundation, which would require patent lawyers and scientists of all kinds, would it not?
Mr. KINNEY. That is right.
Mr. KINNEY. A corporation like Minnesota Mining & Manufacturing Co. could probably afford to spend a lot of thousands of dollars investigating something, and so could much bigger corporations like General Electric. But as far as the small groups, take a group of men who perhaps have one hundred or two hundred thousand dollars that they can muster for a gamble on a development, that would be much too big-time stuff for them to wrestle with.
Mr. O'HARA. What would you suggest as an answer in this bill, Mr. Kinney, to meet this problem?
Mr. KINNEY. I think that the patent section should be deleted entirely. I think sometime, by appropriate amendment to the patent laws, the Congress should say when the Government acquires title to a patent, the patent thereby becomes extinguished.
Mr. Sadowski. Could not someone else gain title to that patent then? Mr. KINNEY. After the Government?
Mr. Sadowski. Let us take it this way: Suppose we deleted it entirely and there were no patents filed by the Foundation or the Government or anybody, any citizen of the United States could file a patent, could he not, and then he would have an exclusive right to it.
Mr. KINNEY. He has to be the inventor.
Mr. SADOWSKI. Whether he was the inventor or not, if he files on it, it becomes his property because he filed first.
Mr. KINNEY. No. Filing first doesn't determine the right to a patent in this country. The first inventor, I will grant you.
Mr. SADOWSKI. That has happened very often where two or three or four or five different people have invented the same thing, hasn't it, and the first person who files gets the patent rights?
Mr. KINXEY. That is right, whoever the Patent Office determines
Mr. SADOWSKI. That the one who filed first got it.
Mr. KINNEY. No. Whoever the Patent Office determines to have been the first inventor.
Mr. SADOWSKI. That is what I am saying. If the inventor connected with the Foundation doesn't file and no one connected with the Foundation files, then some engineer or technician connected with some private industry finds out about this work and he files as an inventor, He says, “I invented it and I am filing for it.” He gets it, doesn't he!
Mr. KINNEY. He may get a patent, which is an invalid patent if he was not the first inventor.
Mr. SADOWSKI. No one else has any further right to it.
Mr. Kinney. Nor he, either. That is, if the idea was evolved by the National Science Foundation.
Mr. SADOWSKI. You mean that the National Science Foundation then would have to come and attack that patent filed by the representative of the private concern?
Mr. KINNEY. Let me answer the question this way, which might be more helpful: I have thought that the Congress might be concerned about maintaining some public record of dates of inventions by the Foundation. The Commissioner of Patents will be talking to you and he can amplify on this, but by a notice which he issued earlier this year it is possible to publish applications for patents in which no claim has been allowed. Of course they really aren't patents then, you see, because no monopoly has been given at all. The Government might choose to adopt a policy of filing disclosures in the Patent Office if it didn't want to publish the stuff right away, and publish it a few years later and have it speak as of its filing date as prior art so that nobody else could patent that kind of thing.
Another thing the Government can do, if it is not information that it wants to keep secret, but widely to disseminate, is immediately to publish it, which would bar any patent by anybody who later filed an application.
Mr. SADOWSKI. What is wrong about the philosophy of the Science Foundation or the Government making available any new discovery as a result of this program, making it available or any of these new discoveries to all industry, all the people of the United States? What is wrong about it?
Mr. KINNEY. If you provide that, that is, without any strings on it, I think that is all right. That is in effect saying that the patent is dedicated to the public. I see no objection to that except the great amount of time and energy that is spent on prosecuting applications for patents. I would expect you might have a corps of maybe 50 or 100 attorneys working at that, which seems like useless human effort. I see nothing wrong with that in principle, provided it is available to all the public, with no strings attached.
Mr. SADOWSKI. And to all industry and manufacturers.
Mr. KINNEY. Yes; I don't see anything wrong with that. But if it is left as it is, where the Foundation could grant licenses on a selective basis, or withhold them, then you are certainly making the Government a giant patent holding company, if the Congress appropriates large sums of money.
I think it should be handled so that the Government is never in the position of having to pay royalties or be blocked on the very thing that was evolved directly by the National Science Foundation.
Mr. O'Hara. Is it your viewpoint here that the Government on the one hand is creating something and on the other hand is choking the public from getting the advantage or the use of that invention which has been invented by the people's money? Isn't that true?
Mr. KINNEY. That is the way I look at it, Mr. O'Hara.
Mr. SADOWSKI. Wouldn't it follow that it would be good for the Government, too, to obtain patents or to obtain some sort of right over these discoveries and then make it available to everybody, because if we took your position where you say the Government should file nothing and assert no right whatsoever to any new discoveries, then any private corporation or private individual can come out and take possession of that through a patent right, and deny it to the rest of the country.
Mr. KINNEY. I think you misunderstood me if you understood me
Mr. SADOWSKI. I understood you to say that the Government should not be in the patent business in any way whatsoever.
Mr. KINNEY. I don't think it should be, but I do think it should block any individuals from getting patents on inventions which are directly evolved by the National Science Foundation. It can do that either by publishing its disclosures promptly or it can do it by filing something which is ostensibly a patent application in the Patent Office, and then publishing it pursuant to the Commissioner’s notice at a later date, with no claims in it.
Mr. Sadowski. If they publish its discoveries promptly, will that publication in itself deny the right to private industry or some private individual to file patent rights and thereby obtain some exclusive ownership or rights in connection with that discovery!
Mr. Kinney. It will absolutely prevent any private industry from getting any valid patent on any later invention. There is not the least question about that.
Mr. SADOWSKI. Except that litigation would arise as a result of it. Mr. KINNEY. Of course, it always can.
Mr. Sadowski. The Government would always be on the defensive, then, and would have to attack the individual who had filed for that patent right.
Mr. KINNEY. If the individual who had the patent when he came into court could not by the clearest kind of evidence show an invention date back of the date of the Government publication, his patent would be invalid for that reason alone, and it would be a very simple matter to have it adjudicated invalid.
Mr. O'HARA. On the other hand, Mr. Kinney, if the Foundation filed and the Commission issued what you would call a publication, then that information is available to all of the people and all industry for the development of it.
Mr. KINNEY. Yes; that is right.
Mr. KINNEY. That would be a secondary way of publishing it, and · it would put it right within the channels in the Patent Office. It would have that virtue. The same legal effect I am sure could be accomplished by a Government bulletin that was circulated as a publication.
Mr. PRIEST. Mr. Wilson?
Mr. PRIEST. Mr. Kinney, we appreciate your appearance here and the statement you have made. It seems to me, as I view the situation, that Dr. Compton, and I think you agree with him in that respect, summed it up pretty well so far as any practical results might obtain: The whole emphasis of the National Science Foundation is