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on basic research in the medical, biological, chemical, and other sciences. You agree, I believe, so long as that is followed, there isn't likely to be any difficulty whatsoever over patents, because patents for the most part come out of applied research rather than basic research.
Mr. Kinney. Primarily.
Mr. PRIEST. And yet it is a pretty troublesome matter, as the conversation here and the questions that have been asked very well demonstrate, to approach this matter in such a way that the public and the Government will have a maximum of protection in the matter of whatever might result from the expenditure of public funds.
If we might grant it would be undesirable to have a patent section at all in the Science Foundation bill insofar as domestic reasons are concerned, at the same time the situation might arise in foreign countries where a foreign citizen would take out a patent in the United States on a United States invention without this country's having taken one out in advance. Isn't that possibly true? Had you thought of the implications possible in the foreign situation ?
Mr. KINNEY. If the foreigner had filed for a United States patent on an invention before the invention was made by the Science Foundation or some of its people he would have a prior right, and that would be irrespective of whether the Science Foundation did or did not file a patent application. On the other hand, if the foreign inventor's date was subsequent to the date of invention by the National Science Foundation or some of its people, he could acquire no right, although to forestall that type of patent, you might like the system of the Science Foundation filing on certain highly important things in the Patent Office just with the thought of blocking that.
I hate to see an act go through, though, that looks as though the Congress is coming out and approving in principle Government ownership of patents. That really alarms me on a policy basis, as well as on a constitutional basis. But if the Government did something like that and the Congress made its purposes clear that that was just to forestall the likelihood of invalid patents issuing to somebody who should not get them so as to protect the Government, so the Government itself or its contractors wouldn't be shut out of fields in which it had paid for the research, that would be one thing. Mr. Priest. Thank you, Mr. Kinney. There are
no further questions.
Mr. KINNEY. Thank you.
(The following letter was subsequently received for insertion in the record :)
CARPENTER, ABBOTT, COULTER & KINNEY,
St. Paul 6, Jinn., April 29, 1949. Re H. R. 12, S. 247 and related National Science Foundation bills. Hon. ALFRED L. BULWINKLE,
House of Representatives, Washington, D. C. DEAR CONGRESSMAN : On April 4 of this year I appeared as a witness before the Public Health, Science, and Commerce Subcommittee of the Interstate and Foreign Commerce Committee, of which latter you are a member. I spoke particularly in respect to the Patent Section of it.
There is another aspect of the bill which I would like to call to the attention of the other members of the full committee. I have reference to the fact that the bills, as drawn (particularly see sec. 10 (a) of S. 247, which passed the Senate on March 18) authorized the Foundation “To prescribe such rules and regulations as it deems necessary governing the manner of its operations and its organization and personnel." There is nothing wrong in this provision, in and of itself, until one observes that it authorizes the Foundation to prescribe the conditions under which it may grant subsidies to one school of higher learning and withhold them from another. For example, to use a well-discussed topic for purposes of illustration, the Foundation could insert its notion of an FEPC provision or of a civil-rights provision in every contract, requiring signature of officers of colleges and universities, as a condition precedent to granting the subsidy. If the president, or other governing officer of a college or university, refused to meet the conditions set out in the contract, the Foundation would be within its rights to withhold granting the subsidy.
Now, please understand me, I am in favor of civil rights and in favor of fair employment practices, but it is my very strong feeling that the States can individually do all the legislating which is necessary on these subjects. So I do not think that the Congress should legislate civil rights or fair employment practices.
Still less do I feel that the National Science Foundation, under the coercive threat of withholding subsidies, should be in effect permitted to legislate civil rights or fair employment practices.
From a newspaper account on Wednesday of this week, it is indicated that Dr. Harlow Shapley, of Harvard University, has been identified in congressional records as a member of numerous subversive organizations, including the recent Peace Congress in New York City, which was denounced as Communist inspired by the House Committee on Un-American Activities; and it is also indicated that Dr. Shapley helped to draft the phraseology of the National Science Foundation bill. One wonders whether such leftist thinkers hope to embarrass all schools of higher learning which refuse to "knuckle under” to the National Science Foundation's notions, not only in respect to civil rights and FEPC but in other respects also; and thus, if possible to embarrass our whole system of higher learning in world opinion.
I hope that the full committee will take a careful, good look at the National Science Foundation bills for this point of view, as well as from the aspect of its Patent Section. I would think that some general provision to assure fair geographical distribution of the large funds anticipated by the Foundation (somewhere between $100,000,000 and $1,000,000,000 and $2,000,000,000 per year) should be included directly in the bill, so as to guard against unfair discrimination in disguise. Otherwise I would guess that most large schools will have representatives or lobbyists in Washington working to get them a bigger subsidy and many good smaller colleges, not feeling that they can support a lobbyist, will be overlooked in the distribution of the large subsidies. In my opinion, our smaller colleges, and especially our smaller sectarian colleges, constitute one of our best defenses against a drift of extreme socialism or even communism.
The way to give us, as a nation, a further shove to the left is to (1) embarrass our system of higher education, and (2) embarrass our system of private business and free enterprise. The aspect of the bill hereinabove discussed would appear to accomplish the first ulterior purpose. The sections of the bill which I discussed in my testimony on April 4 would appear to go far toward accomplishing the second ulterior purpose.
The United States Government is already financing basic research by very large sums of money per year through subsidies granted by units of the armed services, as well as in the Bureau of Naval Research, the Bureau of Mines, etc. So there is no reason why the Congress should be hurried into enacting a bill couched in the phraseology of extreme leftwingers. The Congress, and particularly your committee, I feel, should take sufficient time to make sure that it has an American bill.
If I can be of any further help to your committee, I shall be glad to do what I can. Very truly yours,
HAROLD J. KINNEY. Mr. PRIEST. The Chair believes at this time the subcommittee would like to hear from Mr. Lawrence C. Kingsland, Commissioner of the United States Patent Office.
Commissioner Kingsland ?
STATEMENT OF LAWRENCE
OF LAWRENCE C. KINGSLAND, COMMISSIONER, , UNITED STATES PATENT OFFICE, DEPARTMENT OF COMMERCE, WASHINGTON, D. C.
Commissioner KINGSLAND. Mr. Chairman and members of the subcommittee, as Commissioner of Patents I have been asked to comment on the patent section of the pending bills. I have addressed myself to the provision of H. R. 12 because as I understand the situation, that exemplifies the general character of the patent provision that is under consideration.
Mr. PRIEST. May the Chair state at this point that that is true, with the exception of the Celler bill, which is somewhat different, but otherwise the other bills are very similar in that respect.
Commissioner KINGSLAND. There is one other bill, as I understand, that has a rather complicated section, and that is H. R. 359.
Mr. PRIEST. That is the Celler bill.
Commissioner KINGSLAND. I have not gone into that, because I thought that the present consideration was directed to this simplified form.
This section 12 of H. R. 12 has two subdivisions, and the first (a) is concerned with contracts relating to the scientific research and states that such contractsshall contain provisions governing the disposition of the inventions produced thereunder in a manner calculated to protect the public interest and the equities of the individual or organization with which the contract or other arrangement is made.
In my view, this section sufficiently covers the situation. It is short, it is simple, and it apparently is free from objections that have heretofore been raised. The Foundation would have to study all of the factors affecting the particular contract and incorporate a patent clause designed to take care of the special situation. As I read that section, that is the concept of being able to handle each case on an ad hoc basis.
I therefore see no objection to this section.
With respect to the proviso of section 12 (a), I think it is wise of course to put in the proviso, which reads:
Provided, however, That nothing in this Act shall be construed to authorize the Foundation, by any contractual or other arrangement, to alter or modify any provision of law affecting the issuance or use of the patents.
As I understand it, that is simply as a matter of precaution so that there would be no construction that would affect any provision of the patent law.
The second subsection, subsection (b) of section 12, expresses the relationship, as I understand, of an officer or employee directly employed by the Foundation, and it provides that in the case of inventions made by such officers or employees, “in connection with performing his assigned activities and which is directly related to the subject matter thereof," the ownership of any resulting patents will be in the Government or at the disposition of the Government.
Setting aside any question of the technical discussion of whether or not the Government may or may not own a patent directly, it seems to me that the expression here used is in conformity with what would happen in industry, between a corporation and an individual, or between individuals.
I think in general it may be stated that the patent provision, both subsections (a) and (b), are unobjectionable. As a matter of fact, the powers and duties specified would in my opinion exist in the Foundation even without the presence of the patent section, which of course leaves the question as to whether or not it is necessary to include it. But if it is to be included, as I see it, it is a proper expression of the relationship that should develop between the Foundation and the employees directly employed and within the language of the section. I see no objection to having title pass to whatever ultimate source controlled by the Government the bill may ultimately provide.
I think that, gentlemen, is all that I care to comment on.
Mr. O'HARA. Mr. Kingsland, what about the fundamental question that has been raised by Mr. Kinney here, as to whether or not the Government has any patent rights?
Commissioner KINGSLAND. I believe that that is a matter that is debatable. I do not believe, however, that as a practical matter it would affect the general operation of this bill because, as I view this bill, it seems to me that most of the activities, as has been mentioned here, are in the realm of basic or fundamental research, and it would seem that any development out of that function—that is, operating within that field—would probably result in very few patents.
Moreover, this suggestion and I have heard it before—that there is a likelihood of consolidation of patents in the Government, under Government control, doesn't seem to me to be something that would come out of the bill even as presently framed. There was reference made, as I understand, to section 11 (e). As I read that, it must be read in view of the opening paragraph of the section. In other words, the acquisition of titles would be limited, as I understand it, under thé bill, to those titles that were necessary to carry out the general purposes of the bill. In other words, I don't read that—I may be misreading it—but I do not read it as including the ability of the Government to go out and purchase patents and form a patent pool. I think if there is any possibility of that construction of the act, then I believe it should be clarified. I don't read it that way. That is my position on that.
Getting back to this question of whether the Government should or should not take title, I understand that it has been the practice to take title in the name of the department head or agency. Whether or not that is legal, I am not in a position to express an opinion. While I have been in the patent practice a good many years, that becomes a constitutional question beyond anything that I have attempted to consider.
Mr. SADOWSKI. Under present regulations of your department it can be done and it is being done.
Commissioner KINGSLAND. Titles are being held by departments in the Government and by agencies. That is, titles, also exclusive licenses and other interests in patents, are being held by such departments or agencies. When we get back to that fundamental constitutional question, I say that would be beyond my information.
Mr. SADOWSKI. You make no further suggestion for amendment to the patent section?
Commissioner KINGSLAND. I think that the patent section adequately covers the situation and is in a simplified form which expresses the relationship that would normally grow out of an inventor's relation to one who financed the development. Treating it on that basis and laying aside the constitutional question, I think that is a perfectly satisfactory provision, and I do not feel that there would be the necessity of going beyond it. In other words, I don't see the possibility of any danger coming out of applying the normal relationship between this Foundation, the same as if it were treated as an industry, and the individual inventor. Of course, that first section seems to me to be a satisfactory one because of the necessity of treating each one of the development problems on a separate independent basis. I think Dr. Compton mentioned that this morning. In my experience that is true. In negotiating a contract oftentimes there has to be a give-and-take basis. As I understand it, the Foundation under this provision would have freedom of action, within certain limits, of negotiating contracts for the purpose of fundamental research. Of course, the line between fundamental and applied research is hard to draw. I would agree to that. It is quite likely that any agreement relating to fundamental reesarch may generate things in the applied research, which in turn will result in patentable subject matter. But as long as it stays in the field of fundamental research, there is not much likelihood of this Foundation's dealing with very many patents.
Mr. PRIEST. Commissioner, my feeling is that 12 (a) requires the Foundation to negotiate agreements or contracts with any agency that is to engage in this research with reference to how patents in that particular contract or research project shall be handled, provided that nothing is done to violate the fundamental patent laws. It seems to me that may pretty well tie it down to where there is no inherent danger. Is that your opinion?
Commissioner KINGSLAND. I don't foresee any danger in that situation.
Mr. O'HARA. I wish I shared both of your viewpoints, but I am somewhat fearful.
Mr. PRIEST. Are there any other questions?
Mr. PRIEST. The Chair understands that Dr. Sidney Kirkpatrick is present and will not require a great amount of time. Dr. Kirkpatrick, will you come forward?
STATEMENT OF DR. SIDNEY D. KIRKPATRICK, EDITOR OF CHEMI
CAL ENGINEERING, NEW YORK, IN BEHALF OF THE ASSOCIATED BUSINESS PAPERS AND THE NATIONAL CONFERENCE OF BUSINESS PAPER EDITORS
Dr. KIRKPATRICK. Mr. Chairman and gentlemen, I have a statement of less than a page, and to conserve your time I shall hit only a few of the high spots in it. I was trained as a chemical engineer but for the past 20 years I have been chief editor of the technical magazine, Chemical Engineering. I have had the privilege of serving as president of the American Institute of Chemical Engineers and of the Electrochemical Society, but I address you as a representative of the As