the patents have expired, and the interest that certain developing countries might have in that technology. Would it not be possible for such a developing country to, by its own patent law, grant a patent in such an idea within its country for a limited period of time? Mr. BROWNE. Very much so. Mr. HUTCHINSON. Then why should it be a concern of the Congress of the United States to try to revive those old patents? Why should it not be the concern of the developing country that is interested in affording the exclusivity that is needed, because that idea can still contribute to its own development? Mr. BROWNE. I think we get the indirect benefit, though, by encouraging small countries to be more self-sustaining, and if they can utilize the patent system as a means to be more self-sustaining, it decreases the economic burden on the United States to have to do that. Mr. HUTCHINSON. You mean that we have some kind of a role in encouraging them to set up a patent system of their own? Mr. BROWNE. I think so. If we think that the patent system is a useful thing domesticallyand we think the patent system is a useful thing for the United States on an international scale-then I think we also (there may be exceptions), but we would also find it good to encourage all countries of the world to adopt a patent system, if they do not already have one. Mr. HUTCHINSON. What should be the form of our encouragment? Mr. BROWNE. By international consultation, I would say, to which these countries would be invited and could participate in learning something about the patent system and how it operates and how it could operate in their economy. Mr. HUTCHINSON. Specifically, though, with regard to these expired patents, it would include some kind of a revival of them within our own patent system? Mr. BROWNE. Well, there could conceivably be an international patent arrangement, so-called, where a national of one country could obtain a patent in the other country on the basis of something that has expired in the originator's country, but on which there had never been a patent in the new country. Do you follow me? So that you would have to have an international arrangement to accomplish that. Mr. HUTCHINSON. Yes. So that the national of the new country might possibly get the idea patented in his new country, and then, by reason of some international arrangement, also be able to file again a claim of patent within the United States. Is that right? Mr. BROWNE. If the United States thought that was going to be in our international interest to do so. Mr. HUTCHINSON. Thank you for developing that thought with me. Mr. BROWNE. There is a concept which is in vogue right now in many of the Latin American countries, particularly, and is also true in Belgium, that you can obtain what they call a confirmation patent. In other words, after patents have issued in other countries, you may then obtain a patent in the confirmation patent countries, which would have the same force and effect as if you had filed it originally there, but it would be only for the term equal to that of the first to expire of the corresponding patents in other countries. So that what I am talking about here is an extension of the confirmation patent concept. The mere fact that a patent issues once does not close the door forever. There should be some thought given to expansion of the industrial property system. Mr. HUTCHINSON. One other question I have, Mr. Browne, and this is a matter relating to the history of our own patent system, which I am not too familiar with, and if you would care to respond to it or not is up to you. I have been told, or have read some place, that up until the latter part of the 19th century we actually had a first-to-file system in our own country, and then we adopted this first-to-invent concept. Am I correct in that? Mr. BROWNE. I cannot answer that right offhand. The 1836 act I believe would be the one to have effected the change. Mr. HUTCHINSON. So if it was true that we at any time had a firstto-file concept, it was prior to 1836? Mr. BROWNE. That is my understanding. Mr. HUTCHINSON. And you would not know, from your knowledge of the history of the thing, as to why the first-to-file concept was rejected in the United States 125 years ago? Mr. BROWNE. NO. The legislative history of the 1836 act might bring that out. I have never checked that point. Mr. HUTCHINSON. Thank you. Mr. POFF. I wonder if there might not be some parallel between that and the concept of copyright. Mr. BROWNE. First-to-file? Mr. POFF. No, first-to-invent and first-to-copyright. In other words, a copyright is a copyright when it is created, even if it is unpublished, and even if there is no application for governmental protection. Mr. BROWNE. When you go to the constitutional basis, the basis is the same. Mr. Poff. Yes. Conceptually, I wonder if there is a parallel. I don't know. Mr. BROWNE. The purpose, of course, is to encourage publication, however. In other words, the copyrightable matter which is maintained in unpublished form has not carried out the constitutional purpose, and I would say that philosophically, anything that can be done to encourage early filing should be done, to carry out the constitutional objective, and not only early filing, but publication. Those two are parallel. Mr. KASTENMEIER. The gentleman from Delaware? If there are no questions, the committee desires to thank you, Browne, for your contribution. This concludes the hearings this morning. Mr. The next hearing will be held in this room at 10 o'clock on May 11, a week hence, at which time we will hear from Prof. John Bardeen, University of Illinois Department of Physics, and Mr. J. W. Birkenstock, vice president of IBM, both having been members of the President's Commission. Until that time, then, the committee stands adjourned. (Whereupon, at 11:30 a.m., the committee adjourned, to reconvene at 10 a.m., Thursday, May 11, 1967.) GENERAL REVISION OF THE PATENT LAWS THURSDAY, MAY 11, 1967 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 3 OF THE The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding. Present: Representatives Kastenmeier, Edwards, Poff, Hutchinson, and Roth. Also present: Herbert Fuchs, counsel, and John W. Dean III, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order for the further consideration of H.R. 5924, the Patent Reform Act of 1967. We are very pleased to have as the first witness this morning Prof. John Bardeen, Department of Physics, University of Illinois, who was a member of the President's Commission on the Patent System. Professor Bardeen, if you will come forward, we would like to hear from you. STATEMENT OF PROF. JOHN BARDEEN, DEPARTMENT OF PHYSICS, UNIVERSITY OF ILLINOIS Mr. BARDEEN. Mr. Chairman and members of the subcommittee, I appreciate the opportunity to present my views on the Patent Reform Act of 1967. As you just stated, I am professor of physics and electrical engineering at the University of Illinois, Urbana, and have served as a member of the President's Commission on the Patent System. I have had experience in industrial and government laboratories as well as universities. While I have been involved in a few inventions, one of which turned out to be quite important, my main activities have been in science and I speak primarily as a scientist rather than as an inventor. The patent system, I believe, has played an essential role in the development of science and technology in this country in promoting free exchange of scientific and technical information, in rewarding innovation, and in giving protection to permit investment for development and marketing of inventions. Patented products of our technology have been an important part of our exports and balance of payments. The revisions of the patent laws proposed in the patent reform bill should help strengthen the patent system in both this country and abroad. I fully support them. The advantages of going to a first-to-file system have been discussed by several witnesses before this committee and I will not repeat them here. It has been my good fortune to be able to follow rather closely two areas that have had a remarkable development during the past 15 or 20 years. One is solid state electronics following the invention of the transistor and the other is xerography. Since 1952, I have served as a consultant to the Xerox Corp. and more recently have served as a member of its board of directors. Thus, I have been able to see at first hand how the patent system serves to promote the introduction of new technology. My activities at the University of Illinois during the past decade have been mainly in the physics of very low temperature phenomena in which I have been concerned with basic science rather than applications. The views I express here are entirely my own and do not necessarily reflect those of any organization with which I am connected. I would like to discuss briefly a few aspects of the patent system which I believe are particularly important for the scientific community: (1) Role of patents in promoting exchange of scientific and technical information. (2) Patents themselves as a source of technical information. (3) Grace period and preliminary application. To illustrate how diffusion of technical information is promoted by the patent system, it may be of interest to review the case of solid state electronics. In this area, the United States has maintained world leadership important for military and space as well as commercial markets and exports. The invention of the transistor was done at the Bell Telephone Laboratories jointly with W. H. Brattain and W. Shockley in December 1947. Although it was obvious that a new field of enormous potential was being opened up, the management wisely decided to file patent applications and to publish promptly in the scientific literature rather than to hold it secret. The first publication in June 1948 occurred within 6 months after the invention. The science of semiconductors, on which the invention was based, was then a small field in which only a small number of industrial and university laboratories was engaged. Licenses were soon given to about 40 companies, now increased by many more. Educational programs were set up for licensees as well as engineers and scientists from Government and industry. I was in charge of one such school in the summer of 1953 at the University of Illinois where we had people attending from all over the country. New research programs were started at many laboratories, both industrial and university. In a few years, semiconductors became one of the most popular fields of physics. Many students trained at our graduate schools have gone on to carry out further important developments. All of this activity has given a broad base for exploitation of the field. Once patents have been applied for, new innovations are freely discussed in the technical literature and at scientific meetings. Scientists and engineers from many companies contribute importantly to the |