« 이전계속 »
(Discussion off the record.)
Mr. Lanham, I am not entirely clear on this patent section of the bill, and the more testimony I hear on it, the more confused I become. I wonder if you would tell us what in general would result from this scientific research that might in the first place be patentable under our present laws.
Mr. LANHAM. No; I am not an expert. I have had a great deal of legislative experience with reference to patents. The technical features of patents of course, would be beyond my ken.
Mr. BENNETT. It has been my understanding that certain scientific formulas, for example, are not patentable; that in order for an art. or for a mechanical device to be patentable under our laws, it must be either an art or a mechanical device of some sort.
Mr. LANHAM. Yes. The constitutional provision is for the promotion of the sciences and the arts.
Mr. BENNETT. And that formulas as such-for example, the penicillin formula is not patentable?
Mr. LANHAM. Of course, that is a question upon which I could not pass. It would involve a particular product as to whether or not it was patentable. I think those who are familiar with the technicalities of patent administration would have to answer that question.
You will recall that in his testimony yesterday the Commissioner of Patents stated that he thought it was a debatable question whether or not the Government had any right to own a patent. Of course, the Constitution doesn't give any such authority. The same provision in the Constitution which deals with patents deals also with copyrights. For that reason the arts and sciences are both mentioned, because each is something that is progressive and helpful and will stimulate individuals to carry on along those lines for a term of years and have certain exclusive rights. However, our patent laws have been amended from time to time, and with reference to anything secret that may be discovered, and which the Government wishes kept secret, it can be kept secret by filing an application for the patent. Of course, when anything goes to the stage of patent, it is known to all the world, as you probably know. For instance, Russia has been getting copies of all of our patents.
In the matter of keeping an invention secret, the Government has a very great advantage under our patent laws over the individual. If you, for instance, Mr. Bennett, should have an invention and apply for a patent, if within 3 years you did not take some active step with reference to getting your invention patented, it would be considered under our laws that you had abandoned the application. That is not the case with the Government. The Government can get 3 years more and then 3 years more and 3 years more and 3 years more, and I think you will find that there have been instances where inventions have been kept secret for as long as 25 years. The citizen has no such right.
So anything secret that would be discovered would not go to the stage of patent. Something that was useful for our defense and our security, of course, would be kept secret and could be kept secret indefinitely under our patent laws by the Government.
Mr. BENNETT. What is bothering me is whether there was any way of trying to determine just what types of information might result from the investigations and research of the Foundation that would be patentable. In other words, is a scientific formula as such patentable!
Mr. LANHAM. As to what is patentable and what is not patentable, that is a very technical question, of course. Let me say this: If anything discovered by the Foundation, if the Foundation should be established, should reach the stage of patent, then by all means, in my judgment, and as I recall as included in the original bill which the distinguished chairman of this subcommittee first introduced, that invention should be placed in the public domain to be used by anybody.
The restriction with reference to such a patent in this bill is very great. Instead of putting such an invention that has gone to the stage of patent in the public domain to be used by anybody for the betterment of our country, it says no, there can't anybody use that except the Government's nominee, although the whole world knows about it. Nobody, we say, can use it, but we will just turn it over to some manufacturing concern and give them the full right under it, and nobody else can use it, although the concern to which it would be turned over would have nothing whatever to do with the discovery.
Mr. BENNETT. It is clear to me that as a result of this research, if one of these scientists discovered something that we would regard as a device, for example, to use on a buzz bomb or on an airplane, that would be patentable. What I am trying to get at is what about this other information that a scientist may develop as a result of his investigations? If it involves a scientific formula, say a cure for
Mr. PRIEST. Will the gentleman yield there just for a second? We have a representative from the Patent Office here.
Mr. LANHAM. May I say before he speaks, for instance, that there are other things besides devices included in our patent laws. For instance, we have patents on plants, and then we have patents for designs. Mr. Federico, a most eminent authority in the Patent Office, who has been connected with the Patent Office for many years can give you the technical information you seek that of course naturally I would not have.
Mr. BENNETT. I should perhaps ask him.
Mr. PRIEST. Would you care to comment there? Particularly, as I understand, your question is with reference to a formula, biological or chemical formula.
Mr. BENNETT. I am wondering what this section really covers. It refers only to patents and I am wondering what part of these investigations might be applicable to patent procedures.
Mr. Priest. [To Mr. Federico.] Would you clarify that insofar as you can ?
STATEMENT OF P. J. FEDERICO, EXAMINER IN CHIEF, UNITED
STATES PATENT OFFICE
Mr. FEDERICO. My name is P. J. Federico. I am an employee of the Patent Office and am here on behalf of the Patent Office. I probably could give a little information on the broad question that was asked as to the nature of things that can be patented and the results of basic research that would be patented. By statute the subject matter of patents is limited in a broad sense to the invention of concrete objectsarticles—and also processes, mainly industrial processes. The statute specifies machines, whose meaning is obvious, manufactures, meaning things that are manufactured, the compositions of matter, chemicals and things of that sort; and arts, by which it is interpreted to mean processes, mainly industrial processes for making some of these other things. So the patent laws are directed primarily to the results of what you might call technological invention.
There is invention in other fields, and the broader word "discovery" is also used. It has been ruled on, and the interpretation of the laws has drawn some distinction between inventions which can be patented and scientific discoveries. As a general principle it can be said that scientific discoveries cannot be patented. You could give illustrations of those. For instance, the theory of relativity and discoveries of that sort. Einstein's equation for mass energy, which has been very fruitful in subsequent discoveries. Things of that sort cannot be
Mr. CROSSER. Newton's Law.
Mr. FEDERICO. Yes; the law of gravity, also the invention of logarithms, the invention of the calculus. Those are inventions just as much as the invention of a gadget, but they are not in the field of patentable inventions.
When it comes to basic research, what we ordinarily understand by basic research, the results are ordinarily and preponderantly of the type that cannot be patented. You cannot say that nothing that will result from basic research can be patented. All you could say is that the results are usually of the character of discoveries that do not fall within the field that can be patented.
Mr. BENNETT. That is just the point I was making.
Mr. BENNETT. There is very little, perhaps, that would result from scientific research under the terms of this bill which would as a matter of fact be patentable at all.
Mr. FEDERICO. You cannot say that nothing would.
Mr. FEDERICO. Because things are discovered and invented right along, but the proportion would be minor. I think the Commissioner said yesterday that from the standpoint of the objects of the bill as a whole, the patent matters here are very minor and incidental parts.
Mr. BENNETT. I didn't hear this testimony, but I am glad you made that clear, because it has created doubt in my mind as to just what importance that patent provision actually was as far as the prime purpose of this bisl is concerned.
Mr. FEDERICO. Insofar as the primary object, basic research, the patent provision is purely incidental. It probably cannot be ignored entirely because there will be some results of a patentable nature, but only very minor in quantity.
Mr. BENNETT. Thank you.
Mr. SADOWSKI. I believe that the basic thought behind this bill is to make available all the new knowledge that may become known as a result of the work of the Science Foundation to all the people of the United States. I believe the purpose is not to stifle the development of knowledge of science, but to make it flow easily and readily to all people and make it available to all industry and every one so as to better the living conditions in this country and in the world.
In your experience with the Patent Office, and I am speaking now not as an expert on patents, because I know practically nothing about it. Many lawyers know some law, but when it comes to patents it is a technical thing, and the general practitioner knows little about it. We hear various rumors, for instance, that certain discoveries were made and ideas were patented which would improve the carburetor on an automobile whereby you could get more mileage from your gas, and things of that sort float around. For instance, in my city of Detroit, many rumors come out about new ideas, and the statement is then made that some big corporation bought up those patent rights and is sitting on them and will not use them because it may interfere with some other group in industry, perhaps the oil industry, perhaps some other industry. It may interfere with the great investment that they already have in the manufacturing of certain items in a certain way, and they don't care to transfer over. Therefore, they sit on this new idea, this new thought, this new invention, and don't use it and don't give the benefit of it to the public generally.
In your experience in the Patent Office, have you found those things to be true or not?
Mr. FEDERICO. You are asking a question that would cover quite a lot of ground to answer adequately, but I might make a very brief statement on that point.
The question has been raised time and time again, and searches have been made to find such patented inventions that have been suppressed. Theoretically, under the law, the inventor has the exclusive righthe actually has the exclusive right to make and use his invention and theoretically he could refrain from using it and prevent anybody else from using it. But in practice suppression of the nature you mentioned doesn't occur. It just doesn't work. It is true that a large fraction of patent inventions are not used. Nobody knows just what fraction. My own belief is that it is well over half. They are not used commercially for one reason or another. They are not worth anything commercially, a large number of them. It may be a device that will operate but nobody would buy it or it would cost too much to make, and so forth.
Mr. SADOWSKI. So the theory of suppression is not well grounded in your opinion?
Mr. FEDERICO. I wanted to elaborate a little bit further. Many inventions are alternative methods of doing the same thing. In many instances choices have to be made as to which is best for the particular occasion, and the ones that are the worst are not used. So there is nonuse in that sense.
This particular story you mentioned of the carburetor I happen to be interested in for this reason: When the gasoline shortage was very acute and Mr. Ickes was beginning his campaign on saving gasoline, and a reporter on the Washington News heard this story of the carburetor that would give 50 miles to the gallon, and that that was suppressed by the oil companies. He started out to find it. He visited the Bureau of Standards and the Patent Office, and the Department of Justice. He wrote to various organizations that would be keen on finding a thing of that sort, to try to locate it and get the full story. He was unable to find anything that established it as being more than a myth.
Mr. SADOWSKI. Were you able to find it?
Mr. FEDERICO. I will explain. I personally didn't make any particular search through the patented carburetors, but they are alĩ there available, and anybody who knows the field can search them and study them. Just recently one of the oil companies wrote a story on that same carburetor, of which I could send you a copy if you would like to read it.
Mr. SADOWSKI. I have heard so much about it I would rather not see the copy. I have too many other things to read.
Mr. FEDERICO. Most things of that nature, important inventions, inventions that will make other things obsolete, and so forth, evaporate when you get closer to their source, somebody heard it from somebody else, and they evaporate. You don't get to facts. There are very few facts behind them.
What leads to those stories is probably that it is something that is theoretically possible. I mean conceivably possible, and there is an appealing sound in a story of that sort.
Mr. O'HARA. Right at that point, Mr. Federico, it is true that unless the Government was involved, the advantage of their patent would run out in 15 years, would it not?
Mr. LANHAM. Seventeen.
Mr. FEDERICO. Yes, after grant. Of course, there is quite a good deal of competition in new things by virtue of patents. If some big company got a patent on a very important device that they weren't using, the people in this country are clever enough to find some way to use it despite their wishes not to have it used.
Mr. SADOWSKI. In other words, 17 years after the filing of a patent, whether a man uses it or not, his rights disappear and he cannot renew his rights after that, can he?
Mr. FEDERICO. After the expiration there is no exclusive right in existence at all.
Mr. SADOWSKI. Except that he could take the same patent and add some other little thing to it and repatent it as a new patent.
Mr. FEDERICO. He could get another patent on an improvement. So could anybody else.
Mr. SADOWSKI. Using the same idea he had previously?
Mr. SADOWSKI. An additional idea to the old idea which he hadn't used for 17 years. If he put an additional new idea to that one and incorporate the two together, he could again file for another 17 years.
Mr. FEDERICO. Yes; but the patent would only run to the addition. Anybody else could still freely use the original and their own improvements.
Mr. SADOWSKI. He couldn't make it all part of one all over again.
Mr. FEDERICO. No. The description would be there, but the second patent would only run to the additional improvement. Usually with important inventions, by the time the 17 years have run out there are