hydrogen bomb-and this is again hypothetical-you have a first benefit, you have secondary benefits, and fringe benefits.

Now to be comprehensive and provide what we must, it takes time for research and this cannot be accomplished in a matter of days. We feel that to submit basic information is good, so that it can be more readily available. However, this could be in the form, and I could use a personal case as an example, in the electronics field where original invention disclosure was a two-and-a-half-page document. Some 212 years later the file information which was submitted to patent attorneys to be presented in the form of a patent application was some 10 pages of information. The application when submitted was also 50 pages. Now this, in terms of pages, doesn't sound like much, but there are so many aspects that must be considered to provide for the Patent Office information that would not be regarded as trash, and it takes time to do it. And in the case of Mr. Cappello's example, as related in his formal statement, even after this information is worked with and developed you still find areas that you had not exploited. Under the first-to-file concept, if you take a large industrial complex or corporation with a staff of 50 engineers working on a given program, the concept may be filed. One of the engineers the next day might go to another place and start another chain of events which can lead to a first-to-file concept which, in turn, would lead to another and by the time they present the concept in its final form. you would have so much existing priority form different sources, the beneficial patent would be precluded from issuance.

Mr. HUTCHINSON. Well then are you arguing against the first-to-file concept?

Mr. PERRY. NO; what we are emphasizing is that the first-to-file concept is good to get the information on record, but we want to qualify this by saying that the inventor, also, in doing this must have more time to present comprehensively to the Patent Office the backup data to make a complete disclosure.

Mr. HUTCHINSON. I can understand that argument alright except that the inventor realizes that under this first-to-file concept his patent rights are going to depend upon his getting there first. Under the present system if I understand it if he actually is the first inventor he is protected but under this new-under this bill in order to protect his rights he's got to get there first. And while he may desire to have a year or 2 years or whatnot, in order to better perfect his claims prior to his filings, this other thing is going to urge him on, he is going to rush it, he is going to be urged to rush-in other words the whole thing suggests to me that we are going to get a tremendous lot of claims. I don't know. I would count it as frivolous but it might prove to be quite-what you may call trashy-simply because you have got to get it in there in order to protect yourself.

Mr. CAPPELLO. May I interject something here, Mr. Hutchinson, in this regard. I think that one of the problems the small people faceand I have faced it myself-is that an inventor's idea, in connection with existing technology, is not necessarily the province of one man. Many, many people come up with it-the same logical conclusion as to the next stage in the development of any particular type of art. What we have now is an almost impossible situation from the standpoint of the small man. I am not going to suggest that people falsify their rec

ords which are produced to substantiate their claim of prior invention, but I am going to suggest that the most equitable situation is that of the various people who all go down the same line. The one who ought to be entitled to the patent rights is the first one to get there with a reasonably complete application. The personal grace period merely means that any intervening art which may be developed is not going to be cited against that particular individual inventor. So I don't think the two answers are inconsistent.

Mr. HUTCHINSON. Well I thank you for the explanation. I had some questions about your appellate procedural ideas, but I think you sufficiently answered them in response to Mr. Poff, so I don't think I will pursue them further at this time.

Chairman KASTEN MEIER. The gentleman from Delaware, Mr. Roth. Mr. ROTH. I have only one question. I'd like to go back again to this concept of a preliminary application. Is it possible irrespective of what your language is, for an individual inventor to make the application himself, or isn't it always going to be necessary for him to go to the patent attorney to protect himself.

Mr. CAPPELLO. Well I certainly think with the language that is in the proposed legislation now, that it is impossible for the individual inventor to file the application.

Mr. ROTH. Do you think any language can be developed that would make it sufficiently simple, so the individual inventor could do so?

Mr. CAPPELLO. Mr. Roth, we are going to try to develop such language. We have some definite ideas how this should be done. But again I would like to suggest that if we have a sufficient personal grace period, as far as the individual inventor is concerned, this will tend to eliminate the problem of the preliminary application, because the inventor within a period of a year should be in a position to file a substantially complete application. And if he has the ability to file a continuation, and continuations in part, and to apply for reissue in appropriate cases, he will be able to improve his claims as time goes on.

Mr. ROTH. Going back to the other concept just a minute, I think you used language reasonably related to the disclosure. Now as I understand, one of the principal purposes of course is to avoid interference proceedings or at least to minimize them, would you run the danger with the language of "reasonably related" of having considerable litigation as to whether or not it is reasonably related. Wouldn't we be back in the same bind?

Mr. CAPPELLO. I believe, Mr. Roth, we are going to have some type of litigation, inevitably, connected with preliminary or complete applications, filing dates, and intervening art. I think, inevitably, some type of litigation will result. I do believe, however, that the use of the first-to-file concept is going to substantially reduce this type of interference, used in a broad term of interference litigation.

Mr. ROTH. One final question. Going back to your statement that there is going to be some litigation whatever scheme is devised, is the real solution perhaps to be found in your proposal of how the matter is to be litigated, is this where we can simplify it?

Mr. CAPPELLO. This is the area where the cost to the individual inventor can be reduced. This is the problem for the small businessman, the small inventor-the litigation cost. Our proposals, hopefully, are directed toward reducing the cost of litigation. We can't eliminate

litigation. All we can do is to propose a system which, in our opinion, is directed toward less expensive, more equitable, and more rapid solutions to these problems.

Mr. ROTH. If this latter could be achieved-more expeditious and efficient methods of litigating the bill-would this eliminate much of your objections to the present system?

Mr. CAPPELLO. Yes, it would, except that we still believe that interference procedures, for example, are going to be expensive, they are going to be time consuming. Our estimate of the average litigation, whether it is in connection with intereferences or infringement suits, is about $50,000 per litigation. This is an impossible burden for those of us who are in small businesses. And I think Mr. Perry can elaborate a little bit on some of his current litigation.

Mr. ROTH. Well I appreciate the problem of the cost of litigation but the main thing I was interested in is whether or not one approach may be that the appeals system and interference litigation could be sufficiently simplified.

Mr. CAPPELLO. We think this element of first to invent, as opposed to first to file, does lead toward a tremendous amount of litigation just because of the fact which I discussed, that numerous people can come up with the same idea about the same time.

Mr. POFF. In reference to your last statement, does not the accommodation of the personal grace period concept with the first-to-file concept lead you back in the direction at least of the first-to-invent concept?

Mr. CAPPELLO. To an extent it does. This was what I was referring to when I said we are going to have some type of litigation inevitably associated with the question who has the prior rights to an invention. I believe though that the personal grace period with the first-to-file concept will still eliminate the bulk of the interference litigation which is concerned with who conceived an invention first.

Chairman KASTEN MEIER. Just one final question, in the event you. had your choice between the present system and the bill before us, which would you choose?

Mr. CAPPELLO. The bill before us unvarnished? I think we would choose the present system.

Mr. KASTENMEIER. You would choose the present system?
Mr. CAPPELLO. Yes I would.

Chairman KASTENMEIER. Thank you very much for your appearance this morning gentlemen. We shall hear now from Mr. J. Rabinow, president of Rabinow engineering division; Control Data Corp.

STATEMENT OF J. RABINOW, PRESIDENT, RABINOW ENGINEERING DIVISION, CONTROL DATA CORP.

Mr. RABINOW. I have no prepared statement to read. I will speak from my notes. I thank you very much for the opportunity to be here. It is nice to know that at least one inventor gets a chance to discuss such a basic change in the system. If you forgive me for bragging, I would like to give you my qualifications for speaking. I have two degrees in electrical engineering. For 16 years I worked in the Government services at the Bureau of Standards. For 10 years I ran my own small company, and for 3 years I have been with the Control Data

Corp. I have 176 U.S. patents as of last Tuesday. I have some 25 applications pending and I have a very large number in foreign countries, but I don't really know how many. I am a member of the advisory committee for the Commissioner of Patents and I have some considerable number of honors for my inventions from the National Defense Committee, from the War Department, and Navy. I have a Certificate of Merit from President Truman for some work I did for the Government. I have the Exceptional Service Award from the Department of Commerce and I have a medal from the Franklin Institute. And now I would like to talk about the present bill.

In the first place, the present U.S. patent system is very good. I do not agree with Mr. Cappello, for example, about the fact that it is running down, that an inventor doesn't get his rights, that the small businessman is hurt. I think these cries of anguish are completely unfounded. I think it is the best patent system in the world. Next, perhaps is the German system but it has certain bad aspects of "opposition" which we do not have. I think the Patent Office has a complete record of honesty and fairness. I don't think there is any question about this.

I haven't heard any cries from patent attorneys or from inventors that something should be done, but apparently some people feel that we should change things and I think once in a while it pays to look into a system and to change it just a little. I think what is wrong now is that the world is getting smaller and the number of nations is getting larger in number. The number of patent systems is rising and since people do business all over the world we should do something about getting together with the rest of the world. No company, large or small, or a private inventor as I am occasionally, files only in the United States. We all file abroad. And the costs of filing are very high. I think we should get together with the rest of the world and get our laws into line. I think this is, perhaps, the basic reason why Mr. Holloman of the Department of Commerce, and why the Patent Office are pushing for a revision of the laws. They want us to get together with the rest of the world.

I believe the proposed legislation is basically anti-inventor. I am a little amazed that the Commission composed as it is of very excellent people, has elected, whenever the problems were difficult, to reduce the inventor's rights in order to simplify the problems. I think there are ways of simplifying laws without hurting the inventor so much. I think that when the preamble of the report speaks of making the laws stronger, they should not always accomplish this by reducing the inventor's rights in one way or another. I think the proposed bill is partly intended to help the Patent Office but I am not sure it will. I think the amount of paper would be actually worse and I think some of the office decisions that would have to be made would be much more difficult to make than today.

Gentlemen, I favor the first-to-file system. I don't think there is anything basic about the rights of an inventor. After all, the patent is not the reward for cleverness, but for getting the thing into use and the first to file may help this. I think that we now, in fact, live under the first-to-file system. As you probably know, the number of interferences, about which so much was said today, is very, very small. The figures are as follows:

In 1964 there were some 88,000 applications of which only 900 or so went into interference. In 1965 there were 89,000 applications, only 651 went into interference, less than 1 percent in both cases. In 1966 there were 93,000 applications with 473 interferences, or less than one-half of 1 percent.

We can see this isn't very many. But if we decide to use the firstto-file system, where the first man in the Patent Office wins the patent, less than one-half of 1 percent would be affected by this decision. In those cases interferences are set up, the senior party wins 75 to 80 percent of the time, which means that less than a quarter of 1 percent would be hurt or where an injustice would ever happen. This business of big costs of interference is mostly nonsense. I have 176 patents and only three were in interference. Not one went to court. They were settled by the respective lawyers sending each other letters. They found that in some cases I was the first inventor and some cases the other man was the first inventor and this is how it is usually settled and sometimes we give each other cross licenses. Based on my experience and based on my talks with many attorneys doing this work, I am convinced that court costs are very rare under our system, so this business of changing the laws to eliminate interference is mostly hogwash. For the last 15 years, I don't remember the figures, there were close to a million patent applications and something less than 1 percent were in interference and then only a small fraction of those were awarded to the junior party. Today, the man who files first gets the patent.

I support the idea of the first to file not because there is anything wrong with the present system but because it makes it possible to have an international patent. All of the countries of the world with the exception of the United States and Canada have this system, and if we are going to have an international patent we have to have a system that would have the same inventor here as the inventor, say, in France. If we do it the other way, we can have one inventor in the United States and another inventor for the same invention in Europe.

This setting up of an international patent system is very much worth doing. It is the single best thing you can do for any inventor, large or small. Today I have a venetian blind patent pending in six countries and they will cost me some $6,000. I have protected my magnetic particle clutch invention in 22 countries with 44 patents and this cost my brother, since he had money and I didn't, $37,000. This was not litigation, gentlemen, this was just bare cost of translations, filings, and that sort of thing. This is a terrible expense. And international filing is getting more popular, not less popular, because today when you have an invention you like to sell it all over the world. The world is getting very much smaller. And so, for this reason, I support the first to file, not because of any injustice in our system today.

Incidentally the proposed law as now written is very ambiguous. Section 102 will permit the second to file to get a patent. The proposed bill does not mention the first to file. It says (p. 11 of the bill) that a person shall not be entitled to a patent if: *** (b) the application has been published or a patent on it has been issued. But if the second to file is copending with the first to file it may very well occur that