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and for our achievements and success, or are we to fall in line with the program of certain other countries not so fortunate who advocate and practice the distinctly un-American doctrine that the State alone in its sovereign capacity must seek through its agents the means of individual and national betterment through its prescribed channels of activity and research? There are people and organizations in our country today, whom we properly regard with unadulterated suspision and distrust, who are preaching this latter spurious doctrine.
I do not think it can be questioned that they want this change in our policy. And they want it expanded into the many ramifications of our scientific and industrial and education and social life. Shall we adopt as our own such a program of centralization which we Americans have loyally and consistently criticized and censured in regimes hostile to every basic American concept of government!
Contemplate the progress we have made and are making under our traditional and constitutional policy which affords the individual an unfettered incentive to work for the betterment of our country and of humanity. Why, in the field of medicine alone, for instance, consider how frequently we are being surprised beyond measure by the discovery of new drugs and processes to relieve and cure the serious. diseases which so long have taken their tragic toll. Are we to tell those altruistic toilers and similar benefactors in other worthy fields that the Government will now take over their work? Do we wish even to risk diminishing their beneficent service? Remember that our is a government of the people, not of the State. In the future, as in the past, we may look with confidence to the people to maintain and promote our preeminence if we retain and assure for them the incentive which prompts their undisturbed and constructive labors.
Among those who have appeared heretofore in support of National Scientific Foundation bills have been representatives of various universities and colleges appealing to you to grant them money the Government does not have. They can't be censured for their devotion to their institutions; they exemplify a perfectly normal human trait. But let me remind you that the scholarships and fellowships they desire to establish—for which such eminent inventors as Thomas A. Edison and the Wright brothers and George Washington Carver in their youth likely could not have qualified—could be provided only for the young people who are left after industry, in accordance with its customary policy, has taken the cream of the crop to continue their technical education with jobs awaiting them at the expiration of that additional schooling. Industry is now devoting enormous sums to such training, and it must be borne in mind that the Government also is already spending many millions of dollars annually for research in connection with our national defense and security.
Now let us look at some of the terms of the bill before you. Other witnesses desire to appear to discuss the effect of many provisions to which I shall not have the time to refer. But I do wish to mention a few.
In the first place, what does the following provision mean?
SEC. 4. (6) to correlate the Foundation's scientific research programs with those undertaken by indviduals and by public and private research groups.
In addition to this very clear implication of governmental interferance and domination, let me remind you that individuals and others interested in the search for useful inventions do not wish to be disturbed by anyone, governmental agent or otherwise, to learn what they are doing. I'd certainly hate to be a governmental agent trying to force my way into some cellar where a diligent inventor was pursuing his work. I might get out successfuly, but I doubt if I'd look the same. Under the incentives of the patent system and our free incentive economy these inventors studiously work in secrecy and they don't want any intruder peeping over their shoulders. It is their hope, if successful in their research, to have an opportunity to reap for a time the fruits of their discoveries. This provision is based upon an absolute misunderstanding of the attitude and viewpoint of inventors, and with all the force at their command they would resent such snooping interference.
In a similar way subsection (b) of section 1 states that the Foundation shall have as one of its objectives the strengthening of basic research, "including independent research by individuals.” They who labor in basements and garrets to bring their inventive ideas to .practical utility would, to say the very least, frown upon such intrusion into their private investigations as an unwarranted restriction upon their American freedom of endeavor. And these very pioneers are the very ones who have given us so many of our best discoveries by reason of the traditional and constitutional protection. They, and not the Government, are entitled to the full credit of their accomplishments.
But in section 10 (e)-I think perhaps in the bill H. R. 12 it is section 11 (e)—my remarks are predicated principally upon the sections as numbered in the bill which passed the Senate.
But in section 10 (e) of the identical bills before you, Governmental power would reach its zenith. This provisions gives the Foundation authority to acquire by purchase, lease, loan, or gift, and to hold and dispose of by sale, lease, or loan real and personal property of all kinds necessary for, or resulting from, scientific research.
That provision would give the Foundation the authority and the power to strip individuals, small business, big business, and everyone else of all property of every kind whatsoever as the arbitrary opinion of the Foundation might determine. It could take plants, machinery, patents, plans, drawings, data, material of every description, from everyone interested in or engaged in research devoted to our continued progress. And that is not all. It could sell or otherwise dispose of those plants, plans, drawings, machinery, patents, and so forth, to somebody else. For example, patents are property; so the Foundation could take a man's patent, with reference to which the Constitution and laws are intended to assure him certain rights, and do with it what the Foundation pleased.
I think any good lawyer knows the broad significance and connotation of the word "purchase” in its legal aspects. I recall that I learned it very forcefully when an able preceptor explained the meaning of the rule in Shelley's case.
This provision in these bills would give the Foundation the right of condemnation which, in its legal aspect, is purchase. Also the Foundation could take a man's invention if not yet patented. In this connection, note the relatively inconsequential statement in section 14 (c). It says:
The, Foundation shall not, itself, operate any laboratories or pilot plants. But bear in mind that it could do whatever it pleased with the laboratories and plants of others. It could even sell them. And we boast a system of free enterprise.
May I say in this connection that I noted the recommendation of Mr. George Folk, representing the NAM, for a modification of that language, but in my judgment the modification would not in any way improve that provision. This arbitrary power would still be left absolutely in the hands of the Foundation.
Section 14 (k) is to keep the Foundation out of the atomic energy field. Of course, there could be no reason for the Foundation to enter that field inasmuch as the Government has already monopolized it.
Now, let us look at the effect of some of the confusions and contradictions of the patent provisions. Remember, too, that in the Congressional Reorganization Act the jurisdiction of patent legislation was not assigned to this committee." The consideration of patents is a very technical matter, and any patent legislation necessarily requires proper hearings and study. Let us not forget that the American patent system has been the very basis of our progress and prosperity.
The first paragraph, section 11 (a), which in the bilì H. R. 12 is section 12 (a), of the patent rights provisions states that whatever the Foundation does it should protect the equities of the individual. Of course, it is a little difficult to understand how the broad power to take and dispose of the individual's patent or other property can be considered as a portection of his equities. Under such circumstances, I can't discover any special safeguarding assurance in the language which follows:
Nothing in this act shall be construed to authorize the Foundation, by contract or other arrangement, to alter or modify any provision of law affecting the issuance or use of patents.
Subsection (b) then goes on to provide that, No officer or employee of the Foundation shall acquire, retain, or transfer any rights, under the patent laws of the United States or otherwise, in any invention which he may make or produce in connection with performing his assigned activities and which is directly related to the subject matter thereof.
Now, let me first inquire if that is supposed to apply to one who holds a scholarship under the Foundation? If you say it does apply to those holding scholarships and fellowships, then, in my judgment, in spite of the provisions in the bills to the contrary, you are changing the patent laws of the United States. How can one holding a scholarship under the Foundation be any more an employee of the Government than a GI taking advantage of the government grant to continue his education? Each is receiving a bounty from the Government for additional schooling. And it is entirely possible that some of these GI's may be taking their further educational training in some kinds of research. Are they, too, to be subjected to such contemplated control? Under the patent laws and the court decisions, the Government has no special authority over the patent rights of an individual not connected with the Government as an officer or employee, and only limited authority over the patent right of employees and officers.
In section 11 (b)-12 (b) in H. R. 12 and the other identical bills. it is provided also
That this subsection shall not be construed to prevent any officer or employee of the Foundation from executing any application for patent on any such invention for the purpose of assigning the same to the Government or its nominee in accordance with such rules and regulations as the Director may establish.
This provision may be at variance with the intent of the Constitution of the United States and also of the patent laws. In the first place, the Constitution provides for a patent for the discoverer of a useful invention and that he shall be given exclusive control of assignments of his patent, et cetera, for a period of years. These bills practically provide for compulsory licensing of patents, which has long been advocated by foes of our patent system and the adoption of which naturally would obviate the assured exclusive use by the inventor. The provision even requires that the discoverer make an assignment to the Government's nominee as the Director may dictate.
Now, what would that mean? It would mean that the discoverer could have no right whatever in his invention and patent, and that his rights would be turned over to somebody the Director would indicate who had nothing whatever to do with the discovery. And, furthermore, all except that nominee of the Director would be absolutely barred from using the invention.
Let me remind you, in this connection, that there is nothing secret about a patent. When an invention reaches the stage of patent, its details are made known to all the world. It is to be assumed that, if the Foundation should discover something primarily useful for our national defense and security, it would be kept secret and would not be patented. And our present patent laws afford the Government full protection in this regard. But here you stipulate that an invention which has reached the stage of patent, and which can be fully understood by anyone interested, cannot be used by anybody, however beneficial to the country such use might prove, unless the Director so nominates. In other words, in these days when so much is being said about monopolies, the Director can establish an absolute monopoly in the use of such publicized invention and give that monopoly to someone who had nothing whatever to do with the discovery.
With further reference to my statement of the well-known fact that the individual in his freedom of action is the important factor of our American system of Government, I should like now to quote with permission from an able copyrighted address delivered by the present chairman of the House Committee on Interstate and Foreign Commerce at the commencement exercises of Western Reserve University, Cleveland, Ohio, on September 12, 1945. Among other things, Chairman Crosser then said:
It is, therefore, the duty of everyone to be on guard against any interference with the freedom of the mind. Remember those words of Thomas Jeffersonand let me remind you that Thomas Jefferson was the father of our American patent system at the very beginning of its operation
“I have sworn, upon the altar of God, eternal hostility against every form of tyranny over the mind of man."
Because of the fear of economic power, social ostracism, ecclesiastical censure, scholastic scorn, or governmental oppression, men have refrained from responding to their inspirations and higher intuitions, and so mankind has been denied the benefit of incalculable good which would otherwise have resulted from the unfoldment of truth in human experience.
Government should prevent men's infringement of each other's rights and should assure equality of opportunity to utilize the bounty supplied by the Creator. That done, the individual, in the free play of his individuality, will develop capacity and ability not possible for the man whose actions are so constantly directed by governmental authority as to make of him a mere mechanism. Just to the extent that the individual's actions are directed and controlled by others, whether by governmental authority or otherwise, to that extent are his faculties deadened.
It was by the exercise of that individual right under our free incentive economy that in the late war independent American citizens submitted and permitted to be kept secret several thousand discoveries of their own which in the short space of 2 years outweighed in importance all that Hitler with his scientific cohorts had been able to produce in 10 years of intensive effort. Let us not stifle or diminish by centralized governmental domination that incentive of the American individual which has proved the source of our outstanding accomplishments.
In my judgment, the enactment of the present proposal would provide the basis for bureaucracy on a broad scale and at great expense, and I think that it would retard rather than stimulate our progress in the field of invention. What reason is there to change or abandon the American policy responsible for our preeminent progress by adopting the doctrines we deplore in lands across the seas?
Now, let us inquire whether those in authority in those foreign regimes are interested in effecting this departure from our established and productive governmental policy. Of course, they do not advertise their efforts and, consequently, we are necessarily left to the conclusions to be drawn from facts known and facts that can be ascertained.
We have lately read in the newspapers of a conference held in New York City, attended by delegates from various lands, and ostensibly interested in world peace and scientific progress. Some of the delegates who hoped to be in attendance were not permitted to land on our shores. According to the newspapers, some of the sponsors of the meeting withdrew their sponsorship when they became familiar with certain circumstances not to their liking. We are told, further, that quite a number of loyal Americans picketed this conference, bearing placards indicative of their belief that the purposes of the assembly were decidedly un-American. You have probably already formed your own conclusions about the objectives of this gathering, so I shall not elaborate.
The newspapers tell us, also, that Dr. Harlow Shapley, of Harvard University, served as the chairman of that conference. It might be quite worth while, therefore, to look into the views and sentiments of Ďr. Shapley and determine whether or not he has any particular interest in the enactment of this proposed legislation. If so, perhaps the inference would be justified that others with similar views who reside either in this country or in foreign lands might also wish us to put this proposal on the statute books.
An article which appeared in the Chicago Daily Tribune in its issue of April 26, 1948, with a Washington date line of April 25, 1948, purported to give the attitude of Dr. Shapley along the line I have indicated. It bears this headline: “Shapley group seeks control of