without causing remedial action to be taken in regard to its genuine faults.46

4. Patent suppression

The patent system did not contemplate a complex industrial society under which it might be not only possible, but financially advantageous, for a limited group to purchase patents and withhold from the public the benefits of new inventions. The present patent grant imposes no duty on its owner to bring the invention into use.47 Yet the public interest, in which the grant was supposedly made, is directly thwarted if the enjoyment of new things is unreasonably delayed. The individual should have freedom in the use of his property, but a patent is a special type of property and is peculiarly subject to considerations of public interest. Neither the cross-licensing, nor the acquisition, nor the retention of patent rights should be allowed to proceed to the point where a thing which the public wants, and for which there is no equally good substitute, is artificially withheld from public use. The patent system should facilitate the introduction of new devices, not prevent it.

While instances are undoubtedly infrequent in which the patent system has been used to suppress the introduction of an invention for which there was a genuine public need, that situation is, in some quarters, believed to have existed many times. Many connected with the operation of the patent system will state that suppression never occurs.48 I have not seen a perfectly bald case myself, where a new device was arbitrarily withheld and there was no good substitute. It would be very seldom that there would be any inclination thus to suppress, with the keen competition we have in most fields, for any organization that took a dog-in-the-manger attitude of this sort would soon find his competitors getting the jump on him. It is very seldom that there is only one way of securing a particular desirable result. I have seen, many times, the advent of devices delayed because the inventor could not find support, and I think we would see less of this if the system worked more smoothly. Many years ago I examined into a device which had become so involved with poor patenting and general confusion that no one would touch it. This was a gyroscopic

40 Among the many articles criticizing extensive invalidation of patents by the courts are the following: The Patent Law and the American System of Reward, by Freeman, Ohio Bar, vol. 25, July 7, 1952, pp. 491-497.

The Judicial Erosion of Our Patent System: A Threat to Inventive Initiative, by Posnack, American Bar Association Journal, vol. 37, May 1951, pp. 357-360, 406-407.

See also (1) footnote 32, supra; (2) U. S. Congress, Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, American Patent System, hearings, October 10-12, 1956: testimony of, among others, Jo Baily Brown, pp. 32-34, 107; Louis R. Robertson, pp. 138-142; Elwin A. Andrus, pp. 243-245; Kari Lutz, pp. 309-331; also statistical report on adjudicated patents, 1948-54, pp. 176-185, submitted by P. J. Federico; and (3) U. S. Congress, Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, Review of the American Patent System, Report, January 30, 1956, pp. 4-5.

47 Continental Paper Bag v. Eastern Paper Bag, 210 U. S. 405 (1908).

48 For articles denying or minimizing suppression of patents, see, for example: The Truth About a 215-Mile Carburetor, by Getty, Journal of the Patent Office Society, vol. 36, August 1954, pp. 544-554.

Patents and National Defense, by Hoar, Army Ordnance, vol. 31, September-October 1946, pp. 161-162.

Suppression of Patents, by Hoar, Army Ordnance, vol. 31, March-April 1947.

The Future of Industrial Research, by Midgley, New York, Standard Oil Co. (N. J.), 1944, p. 11.

For articles stressing the existence or prevalence of patent suppression, see: Resistances to the Adoption of Technological Innovations, by Stern, in United States National Resources Committee Technological Trends and National Policy, Washington, U. S. Government Printing Office, June 1937, pp. 39-66.

The United States Patent System, by Vaughan. Norman, University of Oklahoma Press, 1956, ch. 8, Suppression of Patents, pp. 227–260.

compass of a radically different sort, which appeared to me to fill a genuine need for a simple and relatively unprecise instrument for smaller craft than those that could afford excellent and expensive devices. Moreover this instrument involved some very clever usage of air film supported bearings and the like, procedures which are now just coming into use after more than 20 years. The fault here did not lie entirely with the patent system by any means. And this particular suppression certainly was not intentional. I have seen, also, instances in which improvements were withheld by a company until they felt they were fully warranted in introducing them. It does not make sense to disrupt production, incur changeover costs, and cause temporary unemployment to introduce at once every possible change in a product which will at all improve performance. No doubt judgment on such a matter often errs in both directions. But there is a safeguard present, for patents expire, and if there is much delay their possible value is lost. And even moderate delay is hazardous in a rapidly moving competitive field. However, whether or not the suppression of inventions is serious or infrequent, it is clear that such a situation should not be allowed to exist and that action designed to eliminate the very possibility of a successful and genuine suppression of inventions is in the public interest, if a means for such action, which would not cause damage in other ways, can be devised.

5. Detrimental effect of an inadequate patent system to new and small businesses

As scientific knowledge has broadened there has been an increased progression, not only in the interest in science, but inevitably, in the field of scientific application and in the opportunity for invention. The burden on the Patent Office has accordingly been increasingly great. One result has been that patents issued by the Patent Office, although presumptively valid, have too often failed to withstand examination by the courts.49 Unless this situation is cured and the validity of the patent grant strengthened, the venture capital required to finance new inventions will be more and more difficult to obtain. Steps need to be taken to support the Patent Office adequately and to insure that the patents which it issues are in fact valid.

Our patent system has clearly failed, in a number of ways, fully to keep pace with the changes in science and in industry. The Patent Office, for example, has not been able to handle carefully and expeditiously the great mass of complex scientific material thrust upon it.50 Nor have the courts been able to handle either with wisdom or with dispatch the technical issues of great complexity which have come to them in increasing numbers for decision.51 The increasing tendency of

49 See statistics on patent invalidity in U. S. Congress, Subcommittee on Patents, Trademarks, and Copyrights, of the Senate Committee on the Judiciary, American_Patent System, hearings, October 10-12, 1955, pp. 176-185, Adjudicated Patents, 1948–54, submitted by P. J. Federico.

50 See footnotes 22 and 31, supra; also. U. S. Department of Commerce, Advisory Committee on Application of Machines to Patent Office Operations, Report, December 22, 1954, Washington, U. S. Department of Commerce.

61 In 1911, Judge Learned Hand noted, in Parke-Davis & Co. v. H. K. Mulford Co., 189 Fed. 95, at 115:

"How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance."

This statement is quoted 32 years later by Justice Frankfurter, dissenting in Marconi Wireless Co. v. U. S., 320 U. S. 1, at 61, who stated further:

"It is an old observation that the training of Anglo-American judges ill fits them to discharge the duties cast upon them by patent legislation However, so long as the Congress, for the purposes of patentability, makes the determination of originality a

courts to invalidate patents throws a pall of doubt over the entire system. Inventors are discouraged. Businessmen are loath to risk capital in new ventures which depend upon patents. The cure for this situation is, first, to aid the Patent Office to do a better job and, second, to facilitate the difficult task of courts in dealing with patent

Since the war, a large number of small industrial manufacturing units have been created all over the country. They are often manned by young men who were thrown out of their grooves during the war, and never returned. These industrial units revolve, usually, about an idea for an instrument or an electronic device or the like-which can be successfully made in small quantities, and which has a limited but attractive market. I believe that the Patent Office itself is attempting to evaluate the extent of this decidedly interesting development. I have had personal contact with dozens of these small companies which are competing successfully, in very many cases, with large, established industrial units. They can do so because of their flexibility and specialization. But very many of these new ventures depend for their very life upon the patent system to protect them in their infancy against cutthroat competition or the weight of enormous companies in their field. Ever since this country was founded, new industrial units have thus come into being, to succumb or to be successful. They have been absorbed by larger companies very frequently, but some have grown to be large themselves. Every company in this country was once small. Many got their start because they offered something new which the public wanted and would pay for, and because the patent system held an umbrella over their heads until they could stand the full rigor of the industrial climate. In my younger days, I was active, with a number of vigorous friends, in this sort of venture. We put together a number of new companies. Most of them succumbed, but a few survived and grew up. One was the Raytheon Manufacturing Co. No one today would feel that it is small or weak, although I hasten to say that I moved out of it many years ago, and its excellent performance in supporting defense objectives during the war and its healthy growth since, were entirely due to others. But in its early days it was most certainly precarious. And the patent system was its main reliance in carving out a place for itself in the industrial complex. We have allowed this patent system to become relatively weak, and we should reverse the trend. It should always be remembered that one of the greatest safeguards we have in this country against undue commercial concentration is the continued advent of new, small, aggressive industrial units put together by pioneers.

C. RECOMMENDATIONS FOR IMPROVING THE PATENT SYSTEM

There are many aspects to this problem of strengthening the system. The following suggestions are offered, not because they are regarded as in any sense a cure-all, but because they seem to get at the heart of

judicial function, judges must overcome their scientific incompetence as best they can. But consciousness of their limitations should make them vigilant against importing their own notions of the nature of the creative process into congressional legislation * * Above all, judges must avoid the subtle temptation of taking scientific phenomena out of their contemporaneous setting and reading them with a retrospective eye."

52 See Thinking Ahead, by Spencer, Harvard Business Review, vol. 40, May-June 1956, pp. 21–22, 24, 26, 28, 30, 32, 35, 166, 168.

several of the primary difficulties of the system as it stands. Many other suggestions could be offered and have been offered. I am not sure that after full discussion and argument I would still support the legal remedies I present; these suggestions may have serious faults which I do not now see. But I have felt that this statement should attempt, if possible, to get down to brass tacks and not end in generalities. I hope, at least, to provoke discussion of the explicit and the

concrete.

1. Increase the presumptive validity of patents

(a) The Patent Office should exert more effort to insure that the patents it issues are truly valid.-To this end, the Congress should make larger direct appropriations to the Patent Office. The additional funds should be expended both for personnel and for facilities. At the present time there is a considerable backlog of work in the Office, and the staff is heavily loaded. For one matter, a reclassification of patents, badly needed to bring the work up to date, cannot be completed for some years. The Commissioner of Patents should have an adequate staff, freed from routine duties, and capable of planning ahead and of studying means for facilitating current work.

(b) More complete Patent Office examination of prior art; improved classification, adequate budget.-A more careful acquisition and examination of technical literature, both domestic and foreign, by the Patent Office before a patent is issued will distinctly lessen the possibility that issued patents will be overthrown on the basis of previously unnoticed publications. A committee, of which I was chairman, recently recommended that mechanization for the search of literature and prior patents be introduced in the Patent Office, and proposed ways of arriving at this result. 53 Appropriate mechanization is greatly facilitating the conduct of various forms of business. It appears that it could be of especial benefit in the Patent Office. There are some 7 million documents in the Office to which reference is made in the course of examination of an application. Even so this by no means covers the publications which may be pertinent. In spite of a system of classification to aid search, and in spite of the fact that about half the time of 600 examiners is spent in searching this complex maze of material, it is inevitable that important references will be overlooked. 54 Many times, when this occurs, it places a severe burden on industry, the courts, and the inventor himself. An invalid patent can do a lot of damage. There are those who feel that this particular problem, because of its diverse nature, can not be readily solved by mechanical means. Certainly the experience of examiners, who have become familiar with special fields through long experience should not be sacrificed. But modern data-handling equipment is exceedingly flexible and versatile. It is often thought of, by those who do not understand it, as a mere card shuffling affair. But it is far more than this. It can have a memory, so that the experience of one search will become available to other searchers. It can be fast and comprehensive.

53 See op. cit., supra, footnote 50. Also Progress of Research in Machine Searching for the Patent Office, by Jenney, American Patent Law Association Bulletin, March 1956, pp. 123-125.

54 See table submitted by P. J. Federico, Examiner in Chief, Patent Office, Washington, D. C., in U. S. Congress, Subcommittee on Patents, Trademarks, and Copyrights, of the Senate Committee on the Judiciary, American Patent System, hearings, October 10-12, 1955, pp. 291-293.

It can even be arranged to facilitate its own evolution, as its subject matter grows and the art changes. The arrangements for proceeding toward an adequate and well-thought-out mechanization are excellent. There is a committee in the Office studying the applicability.55 The Bureau of Standards has undertaken to investigate the best applicable mechanism. An advisory committee, of highly competent individuals serving voluntarily, is engaged in guiding the development. I trust that adequate funds will be available for the support of this important move.

There is the strongest kind of public interest in having this job done well. It cannot be accomplished without additional staff and additional funds. Moreover, the necessary additional money should come from public funds and not from inventors' fees. This is a matter of public responsibility. The cost of patent administration cannot be made primarily the responsibility of the inventors through patent fees without unduly burdening many worthy inventors.

It should not be forgotten, in this connection, that the body of issued patents is intended to supply to citizens generally a complete reference on the current state of technical fields in which progress is being made. It has by no means, in recent years, been as valuable in this regard as it might be. This is partly due to its great bulk, and partly due to the difficulty of consulting it in its present form. If it were fully mechanized, and especially if its subject matter included literature references as well as prior patents, it could become very useful indeed. In fact, by making duplicate cards or tapes or the like available, there could be made available to libraries and to industry a highly valuable means of keeping up to date in our rapidly evolving techniques. There is no way, in my opinion, that the Department of Commerce could be of more genuine aid to industry than by developing these possibilities to the utmost.

(c) Opposition proceedings. It has often been suggested that, when a patent is ready for issue, its general nature be made known and the submission of references by interested parties invited. It would be expensive to do this, and the Patent Office would need more funds if it were to be introduced as a procedure. But it would most certainly result in very few patents being issued and later found invalid because of prior descriptions in scientific or technical literature. Those in the line of business to which the patent referred would have great incentive to submit references. It would greatly decrease the number of patent applications filed on doubtful matters, merely as a precaution against patents appearing in the hands of competitors. It would undoubtedly save business far more than its total cost. It would do no harm to the individual inventor. There is no more cruel act than to issue to a lone inventor a patent which he trusted as valid, only to find later that he was not the original inventor at all. Of course such a procedure needs to be safeguarded against undue delay; there should be no possibility of argument that would allow a vigorous group to block the application of an individual inventor indefinitely. The submission of references, and brief statements regarding them, should be all that should be allowed. The Office should still adhere to the procedure of maintaining an applicant's material secret until it has forinu

See article by Jenney in footnote 53, supra.