matters of general policy. For that committee, he drew upon personnel from industry, general law, and patent law. Now, in 1950, under Reorganization Plan No. 5, the Secretary of Commerce vested in himself-again by Executive order-all of the functions of the Patent Office and then redelegated them to the existing Commissioner of Patents. When the patent laws were revised and codified 2 years later, in 1952, Reorganization Plan No. 5 was codified in the patent statutes, and the authority was given the Secretary of Commerce to vest in himself all the powers and functions of the Commissioner of Patents. Although such powers have been redelegated to the Commissioner, as was the case under Reorganization Plan No. 5, there has been an increasing tendency on the part of most recent Secretaries of Commerce and Assistant Secretaries of Science and Technology to exercise greater policy and operational control and domination over the Patent Office and the Commissioners of Patents. Thus, we have an anomalous situation where one Presidential appointee has the power and authority to completely strip another Presidential appointee of all his duties and functions with or with out cause or reason. To the extent that, in the first instance, success of the United States patent system is the responsibility of Congress, it would seem that Congress should not allow the Patent Office to be submerged several layers deep in a Cabinet Department of the executive branch. The analogy between the granting of a patent and the granting of other limited franchises by regulatory or quasi-judicial independent agencies or commissions leads one to the logical conclusion that the Patent Office should also be an independent agency or commission more directly responsible to Congress. The proposal which I submit for your consideration at this time, Mr. Chairman, is really in the nature of an extension of the concept set forth in sections 2, 3, 5, 134, and 145 of Senator Hart's bill 1321. This would reestablish the Patent Office as an independent agency in the executive branch of the Federal Government. Basically, I propose that instead of merely having a Commissioner and a Deputy Commissioner, as proposed in your bill, S. 1321, there be established as an independent agency a five-member U.S. Patent Commission, the administrative structure of which would correspond to that of existing Federal franchise-granting or quasijudicial commissions, such as the Federal Power Commission, Interstate Commerce Commission, Federal Communications Commission, or the Civil Aeronautics Board. I would suggest that the members of the Patent Commission which I propose be appointed by the President with the advice and consent of the Senate, each of the members, however, to be appointed for overlapping terms of 7 years, as in the case of other commissions. Likewise, not more than three members of the Patent Commission should be from any one political party, and the President should designate one of the members of the Commission to serve as chairman. By the way, this parallels the Federal Trade Commission Act; it is the statutory language. In this way, there would be greater continuity of service of Commissioners with the consequence of greater consistency in the administration of the patent laws. This is the point that the previous witness from the Patent Office Society made, and I very strongly support his conclusion in that regard. I also propose that the Commission appoint, under the Civil Service System, as many Administrative Law Judges-or, as they used to be called, Hearing Examiners-as may be necessary to perform the duties presently being performed by the examiners-in-chief who are now serving as members of the Patent Board of Appeals and the Board of Patent Interference Examiners. This proposal differs from section 5(a) of S. 1321 in that it would eliminate the title of examiners-in-chief and substitute the more current, consistent and meaningful title of administrative law judges. They would be on the same pay-scale relationship as provided in S. 1321. Instead of conducting hearings in panels of three members each as provided in Section 5(d) of the present bill and limiting the record to that made before the patent examiners, as is presently the practice, I would suggest that the administrative law judges individually hear testimony, receive evidence, and obtain proposals for further amendments to the claims, prepare and file findings and conclusions, and be authorized to make final disposition of cases brought before them after final rejection by the primary examiner. The applicant-or in inter partes cases, the dissatisfied partycould request the Commission to review exceptions to the findings and conclusions of the administrative law judges. From the final decision of the Patent Commission on those exceptions, judicial review could be had before the U.S. Court of Customs and Patent Appeals on the record made in the Commission, including the evidence submitted to the patent examiners as well as that submitted to the administrative law judges. If the foregoing recommendation is adopted, I then recommend that the so-called trial de novo in the U.S. District Courts, as provided under sections 145 and 146, be abolished, since the presentation of evidence before the administrative law judge and the Patent Commission would eliminate the necessity for that type of judicial review. If I may add a footnote, recent cases which I have noted since this statement has been prepared, I find that the so-called de novo affect of the trial in the District Court is more of a dream than a reality. There are cases that say that the evidence introduced in a trial de novo should be limited to that which was introduced in the Patent Office and relate only to issues presented in that Office. Finally, I would leave the entire trademark registration function in the Commerce Department, separate from the Patent Office, since it is a purely ministerial or registration function arising under the Commerce clause of Article I, Section 8 of the Constitution, not under the Patents and Copyright clause. Another reason for separating this function from the Patent Commission is that trademark jurisprudence arises primarily out of the common law, whereas patents and copyrights are Congressionally created franchises which are constitutionally based statutory exceptions to the common law. Here I may be treading in an area I am not as well informed as I should be. I am advised that there is a jurisdictional dichotomy between the Senate Commerce Committee and the Senate Judiciary Committee with respect to the Patent Office. Whereas the Judiciary Committee exercises jurisdiction over the substantive and administrative organization of the Patent Office, the Commerce Committee exercises jurisdiction over the rest of the Commerce Department, including the offices of the Secretary of Commerce and the Assistant Secretary of Commerce for Science and Technology. Yet, the Secretary of Commerce, under section 3 of the Patent Act, has placed the Patent Office under the jurisdiction of the Assistant Secretary of Commerce for Science and Technology, and thereby submerges the Patent Office to a more subordinate position than it held prior to the promulgation of Reorganization Plan No. 5. By taking the Patent Office out of the Commerce Department and making it an independent Patent Commission, it will be more directly under the control of Congress and answerable primarily to the Judiciary Committees of both the Senate and the House. This would be consistent with the spirit of article I, section 8 of the Constitution, since the Copyright Office, being a part of the Library of Congress, is presently an arm of Congress, and the Patent Commission would be both a separate agency in the executive branch and be more directly responsible to Congress than in its present posture. The patent system, to be more effective, should be operated by a commission having continuity of personnel which is not subject to change merely because of changes in Cabinet or sub-Cabinet level officials. The appointment of Commissioners to the Patent Commission for overlapping terms of 7 years each would also reduce the disruption presently encountered as a result of Presidential elections. every 4 years and the turnover in the office of Commissioner and Assistant Commissioners due to the uncertainty of tenure. In conclusion, it is recommended that the Patent Commission concept be adopted to make the administrative structure of the Commission conform to existing patterns of organization within the executive branch, rather than continue making the Patent Office and the operation of the patent system an exception to the normal structure and operation of administrative agencies. A marked-up copy of sections 2, 3, 5, 134, 145, and 147 of S. 1321 is appended here for purposes of illustration as to how this could be incorporated in the present bill without doing violence to the bill. [The material referred to follows:] S. 1321, 93D CONG., 1ST SESS. A BILL For the general reform and revision of the Patent Laws, title 35 of the Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, in accordance with the authority granted by article 1, section 8, clause 8 of the United States Code, entitled "Patents", is hereby amended in its entirety to read as follows: "TITLE 35-PATENTS "PART "I. PATENT COMMISSION Sec. 1 "II. PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS_ 100 "III. PATENTS AND INFRINGEMENTS OF PATENTS 261 "1. National Patent Policy. "2. Establishment and seal. "3. Commissioners and other officers. "4. Restrictions on officers and employees as to interest in patents. "5. Board of Appeals. "6. Library, classification of patents, public search facilities. "7. Certified copies of records. "8. Publications. "9. Annual report to Congress. "10. Advisory Council on the Patent System. "§ 1. National Patent Policy "It is hereby declared to be the national patent policy of the United States to promote the progress of science and useful arts, by granting inventors the privilege, for a limited time and subject to the provisions of this title and any other Act the Congress has or may hereafter enact, to exclude others from making, using, and selling new and useful inventions discovered by such inventors and fully disclosed to the public. This title shall be interpreted in light of this policy and of the constitutional purpose permitting Congress to enact a patent law, to assure that United States patents are of high quality and reliable. "§ 2. Establishment and seal "The Patent Commission, at times referred to in this title as the "Commission", shall be an independent agency, where records, books, drawings, specifications, and other papers and things pertaining to patents and to trademark registrations shall be kept and preserved, except as otherwise provided by law. The Commission shall have a seal with which letters patent and papers issued from the Commission shall be authenticated. "§ 3. Commissioner and other officers A commission is hereby created and established, to be known as the United States Patent Commission (hereinafter referred to as the commission), which shall be composed of five commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed: Provided, however, That upon the expiration of his term of office a commissioner shall continue to serve until his successor shall have been appointed and shall have qualified. The President shall choose a chairman from the membership of the Commission. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. A vacancy in the commission shall not impair the right of the remaining commissioners to exercise all the powers of the commission. "(d) There shall in addition be an Assistant to the Commission, referred to in this title as the 'Public Counsel', who shall be appointed by the President, by and with the advice and consent of the Senate. The position of Public Counsel shall be in the competitive service, and the per annum rate of basic compensation therefor shall not exceed the maximum scheduled rate provided for positions in grade 18 of the General Schedule (5 U.S.C. 5104). The Public Counsel shall assure as an advocate, and through the adversary process, that high quality patents which meet the statutory and constitutional criteria therefor issue from the Patent Office. To that end he shall consider and review all proceedings in the Patent Office, and he or his delegates: "(1) may intervene and participate at any time in any Patent Office proceeding, or appeal therefrom, when, in his discretion, it is necessary or appropriate to do so: "(A) in the public interest to assure the integrity, strength, and reliability of a high quality patent system; or "(B) in circumstances which indicate the public need to analyze or defend an important, new, or developing theory of law; or "(C) in the case of important, new, or developing areas of technology; and "(2) shall prosecute or defend appeals from any final action of the Patent Office; and "(3) shall have all other rights and powers afforded parties under this title: and "(4) shall take such other action, participate in such other proceedings, and conduct such other investigations or inquiries, as may be necessary or appropriate to carry out the purposes of this title. The Commission may also assign or delegate other duties to the Public Counsel, to the extent such assignment or delegation does not interfere with the responsibilities of the Public Counsel provided by this subsection. In all other respects, the Public Counsel shall be independent of the Commission in carrying out his responsibilities hereunder. "(e) The Commission shall, subject to other requirements of law, appoint other officers and employees of the Patent Commission, assign or delegate to them the functions of the Commission, and fix the per annum rate of basic compensation therefor. "§ 4. Restrictions on officers and employees as to interest in patents "Officers and employees of the Patent Office shall be incapable, during the period of their appointments and for three years thereafter, of applying for a patent or, during such period and for three years thereafter, being named as an inventor in an application for patent for an invention made during such period or for three years thereafter and of acquiring, directly or indirectly, except by inheritance or bequest, any patent or any right or interest in any patent, issued or to be issued by the Office. Such applications for patent thereafter shall not be entitled to any priority date earlier than three years after the termination of the appointment of such officers and employees. "§ 5. Administrative Law Judges "(a) There shall be in the Office not to exceed twenty-four Administrative Law Judges who shall be appointed under the competitive service, in the manner prescribed for Administrative Law Judges (5 U.S.C. 3105, 5362, 7521). The per annum rate of basic compensation of each Administrative Law Judge shall be fixed at not in excess of the maximum scheduled rate provided for positions in grade 17 of the General Schedule (5 U.S.C. 5104). "(b) The Administrative Law Judges shall be persons of competent legal knowledge and scientific ability, who will perform and exercise the judicial functions of the Commission. "(c) The Administrative Law Judges shall review all final orders (as that term is defined in 5 U.S.C. 551) of primary examiners and may review orders issued pursuant to section 23 of this title, except with respect to such matters relating to Commission procedure which the Commission has by general rule or regulation assigned for determination by an Administrative Law Judge, who shall from time to time be designated by the Administrative Law Judge senior in date of appointment. Except as otherwise provided in this title, the Commissioners and the Administrative Law Judges shall exercise all judicial functions, including all agency review or appeals, under this title. The order of the Commission shall constitute final agency action (as that term is defined in 5 U.S.C. 551) in all matters considered by it. "(d) Each appeal or other action shall be heard or considered by an Administrative Law Judge, except as otherwise provided in subsection (c) of this section. Said Judge shall be designated for each case by the Judge senior in |