Commissioner functioning in the performance of his duties only by delegation of authority from the Secretary. The passage of this law nullified the earlier decision of the Supreme Court in the Case of Butterworth v. Hoe, 112 U.S. 50. previously mentioned, which upheld the contention of the then Commissioner to be exclusively entitled to decide cases "in which, by law, he is appointed to exercise his discretion judicially." At the hearings conducted by Senate and House Committee it was urged by witnesses that the Patent Office should be completely independent of the Department of Commerce although, strictly speaking, this was not the issue involved. All persons who have occupied the Commissioner's chair since the passage of this act have been handicapped to an extent which varied with the circumstances then existing and it is to be hoped that the occupant of this office may, in the near future, carry out his statutory duties without interference from the head of any Department. In 1955 hearings were held by Subcommittee 5 of the House of Representatives Committee on the Judiciary and those who testified, urged that the Patent Office should be free of possible interference by a Cabinet Officer. In 1957 Senator O'Mahoney, for himself and Senator Wiley, introduced, on April 12th, Senate Bill S. 1862. The bill specifically provided that the Patent Office was to be established as an independent agency in the executive branch of the Government. It was not enacted into law. It was followed by S. 1389 on March 12, 1959, transmitted by Senators O'Mahoney and Wiley jointly, and having the same objective. It was not passed. Thus, today, we look back on a very lengthy series of important recommendations and efforts made by knowledgeable and earnest persons sincerely interested in the welfare of the patent system and especially the Patent Office, none of which bore fruit. Included among those having knowledge of the manner in which the affairs of the Patent Office are conducted, and who support the proposal to establish the Patent Office as an independent agency, are persons who had served in that Office, including former Commissioners Ooms, Kingsland, Marzall and Watson, also former Assistant Commissioner Richard Spencer, the latter having been particularly interested in that he published a book in which his position on this subject was plainly stated. It was made clear at a 1957 meeting of the Section of Patent, Trademark and Copyright Law of the American Bar Association that former Commissioners Ooms and Marzall supported the independence proposal and Commissioners Kingsland and Watson have made their positions clear at other times and places. Former Commissioner Coe found it to be helpful, in order to obtain Presidential consent to several proposals, to have the then Secretary of Commerce present them on his behalf at meetings of the Cabinet, but in all other respects advocated independence. Assistant Commissioner Spencer devoted an entire chapter of his book "The United States Patent System with a Complete Program for its Improvement and Amplification", published in 1931, to the subject "The Patent Office as an Independent Bureau" and made reference to a number of earlier publications of interest to anyone studying this subject, some of which have not been specifically mentioned in the foregoing paragraphs. His experience had been such as to convince him that the Office should be established as an independent bureau. Former Congressman Lanham in his October 1955 testimony before the Senate Committee on the Judiciary made it abundantly clear that he favored establishing the Patent Office as an independent agency, this being an expression of opinion which should be given great weight as Mr. Lanham had served 25 years on the Committee on Patents of the House of Representatives. In the preceding paragraphs the opinions of some, but by no means all, of the persons who have advocated independence of the Patent Office have been mentioned and it is in order to get forth the views of the two large groups of lawyers whose special qualifications and expertise should give their opinions great weight, i.e. the American Patent Law Association and the Section of Patent Trademark and Copyright Law of the American Bar Association. Investigation disclosed the fact that the American Patent Law Association has so far expressed no opinion on the subject of Patent Office independence. The Patent Section, on the other hand, has given the matter consideration and has, whenever it did express a positive opinion, disapproved the proposal. Thus, in 1957 (Summary of Proceedings, Page 46) a Section subcommittee urged that the Section register its support for S. 1862, this being the bill to establish the Patent Office as an independent agency in the executive branch of the Government which had been introduced by Senator O'Mahoney for himself and Senator Wiley. The motion was voted down 32 to 19. The 14 line resume of the brief debate which took place is wholly insufficient to make clear why it was that the motion was lost and certainly fails to correctly summarize the comment of this writer; who supported the resolution. The adverse comments of only two persons are mentioned and only one soon reported comment is understandable, i.e. that if the Patent Office were independent the Commissioner would be forced "to enter the political area”. In 1949 (reported at Page 63 of the 1959 Summary of Proceedings) a resolution favoring the enactment of S. 1389; the second bill introduced by Senators O'Mahoney and Wiley and also proposing to establish the Patent Office as an independent agency was voted down 21 to 10. Those who spoke against the resolution seemed to be persuaded that, if the change were to be made, the Commissioner would be subjected to political pressures, no other reasons for disapproval being advanced. The recommendation of the Committee which presented and supported the resolution was signed by 36 Section members who were favorable and by 8 who disapproved. Thus the over-all vote would have been 46 for passage of the resolution favoring the bill and 29 for rejection had all members of the committee attended the meeting. It will be noted that the attendance at both the 1957 and 1959 Section meetings, as evidenced by the numbers voting on these two resolutions, was quite small in relationship to Section total membership. The Committee report supporting the resolution presented in 1959 (page 28 of the Committee Reports) was well and thoughtfully prepared; listing a number of substantial reasons why the Patent Office would profit if it were made independent of Commerce and it listed a few which were offered in support of the adverse position. The supporting reasons were largely those which earlier writers had mentioned in the publications to which reference has already been made in this writing. The negative argument was apparently based on these generalities, i.e. (1) the Federal Government would be more efficient with fewer rather than more independent agencies and passage of special legislation of this type for the Patent Office would tend to create a "rash" of clamor for more independent agencies; (2) the Patent Office would lose cabinet representation if it became independent and (3) if made independent it might be included in an existing or a new department not as helpful to is as the Department of Commerce. The reader must himself evaluate the potency of these arguments but to the writer they lack persuasiveness. Reasons (1) and (3) are based on pure speculation and the likelihood that either feared event, even if it actually occurred, might result disadvantageously to the Patent Office or to the public interest, is not demonstrated. In addition it is highly unlikely that the Patent Office, if made independent, would then be forced into a department other than the Commerce Department or, in other words, have its independence taken away from it. Reason (2) is in the writer's opinion without real substance, Patent Office affairs being dealt with by the Congress and not at meetings of the Cabinet. When the resolution was being considered at the Section Meeting (1959 Summary of Proceedings 63) it was stated that independent agencies are subjected to political pressure to a greater extent than those attached to major Departments and that the Commissioner would necessarily be a politician. Where is the political pressure coming from? The writer knows of only one instance when pressure which might possibly be called political, was exerted upon a Commissioner (a predecessor in office) and this was applied by the then Secretary of Commerce. The Commissioner of Patents need only be "Political" to the extent that, when he appears before Congressional Committees, he can accurately describe the condition of affairs in the Patent Office, and explain its needs. A resolution "approving in principle the establishment of the Patent Office as an independent agency" was presented for consideration at the 1963 meeting of the Section (1963 Committee Reports) but was recommitted without action having been taken (1963 Summary of Proceedings 47) and at the 1964 meeting a resolution was presented which called for committee study of "the advisabil ity of establishing the U.S. Patent Office as an independent agency of Government including both Patent and Trademark activities." RELATIONSHIP OF THE PATENT OFFICE TO OTHER BUREAUS OF THE DEPARTMENT OF COMMERCE From what has already been said it is clear that many who have had first hand knowledge of the nature of the organization of the Patent Office, the statutory functions which it performs, and the character of its personnel, have concluded that there is little resemblance between it and the other Bureaus of the Department of Commerce. In fact the Patent Office is different in its makeup, statutory authority and performance from any other Bureau which is attached to any other Department of Government. It more closely resembles in its functions, several of the Independent Agencies or Regulatory Commissions than it does any other non-independent bureau. It is hardly necessary to explain how it differs from The National Bureau of Standards, the Weather Bureau, the Coast and Geodetic Survey, The Bureau of Public Roads, the Office of Technical Services and the Maritime Administration, those other Bureaus for so long a time in the past having functioned so publicly in the performance of tasks so vastly different from those which the Patent Office undertakes and accomplishes. As a matter of fact there is just one small area in which the concern of the Patent Office is the same as those of Standards, Maritime, Weather, Public Roads and Coast and Geodetic and this relates to the storage and retrieval of technical information, the Patent Office having a relatively small unit charged with the duty of developing ways and means for mechanically accomplishing the ever increasing labor of determining novelty of invention by searching the prior art. The Patent Office and the Bureau of Standards have worked closely together in attempting to solve the many problems involved in efforts to utilize the computer in this work. Other than in this area, however, there is no identity of specific direction of effort by the Patent Office and the other Bureaus of the Department of Commerce. In spite of these circumstances, however, an officer of the Department, having a rank below that of the Secretary but superior to that of the Commissioner of Patents, has had vested in him the right to approve or disapprove "*** regulations established by the Commissioner of Patents in accordance with Section 6 of Title 35 of the United States Code for the conduct of proceedings in the Patent Office." Thus, the Secretary of Commerce made effective, as of July 30, 1962, the following order: ASSISTANT SECRETARY OF COMMERCE FOR SCIENCE AND TECHNOLOGY Delegation Relating to Certain Patent Matters "Pursuant to Authority of Reorganization Plan No. 5 of 1950, 64 Stat. 1263, as amended, there is hereby delegated to the Assistant Secretary of Commerce for Science and Technology, and he is authorized to perform the following functions: "A. The approval of regulations established by the Commissioner of Patents in accordance with Section 6 of Title 35 of the United States Code for the conduct of proceedings in the Patent Office. "B. The certification in accordance with Section 266 of Title 35 of the United States Code of the use or likely use in the public interest of an invention for which a patent is being applied. Effective date: July 30, 1962. LUTHER H. HODGES, Secretary of Commerce." Section 6 of Title 35 of the United States Code is as follows: PAR. 6, DUTIES OF COMMISSIONER "The Commissioner, under the direction of the Secretary of Commerce, shall superintend or perform all duties required by law respecting the granting and issuing of patents and the registration of trademarks; and he shall have charge of property belonging to the Patent Office. He may subject to the approval of the Secretary of Commerce, establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent Office." July 19, 1952, C. 950, Par. 1, 66 Stat. 793. "As a result of this grant of authority to one of the politically appointed higher ranking officers of the Commerce Department of certain of the prerogatives of the Commissioner of Patents, under the authority of that ill considered and destructive document known as Reorganization Plan Number 5, the Assistant Secretary of Commerce for Science and Technology has become the immediate superior of the Commissioner insofar as "regulations" are concerned, the Secretary, of course, retaining the right to control other activities of the Commissioner. The Secretary or his appointee could, if he so chose, decide individual cases which arise in the Patent Office since Reorganization Plan Number 5 reads, in part, as follows: "SECTION 1. Transfer of functions to the Secretary (a) Except as otherwise provided in subsection (b) of this section, there are hereby transferred to the Secretary of Commerce all functions of all other officers of the Department of Commerce and all functions of all agencies and employees of such Department. (b) This section shall not apply to the functions vested by the Administrative Procedure Act (60 Stat. 237) in hearing examiners employed by the Department of Commerce, not to the functions of the Civil Aeronautics Board, of the Inland Waterways Corporation, or of the Advisory Board of the Inland Waterways Corporation." "SECTION 2. Performance of functions of Secretary. The Secretary of Commerce may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by an agency or employee of the Department of Commerce of any function of the Secretary, including any function transferred to the Secretary by the provisions of the reorganization plan." Reorganization Plan No. 5, purported to implement the recommendations of "The Commission on Organization of the Executive Branch of the Government" of which Herbert Hoover was Chairman, and was established by Public Law 109 of the 81st Congress. This Commission submitted 19 reports to the Congress, of which one was primarily concerned with the organization of the Department of Commerce. A few lines only were devoted to the Patent Office and its problems and no attempt was made to demonstrate that this office should remain in Commerce. That seems to have been taken for granted. One of the reports of this Commission is entitled "The Independent Regulatory Commissions" and its opening paragraph reads as follows: "The independent regulatory commission is a comparatively new feature of the Federal Government. It consists of a board or commission, not within an executive department and engaged in the regulation of some form of private activity. In this report, the Commission on Organization had confined itself to a discussion of the organization problems of the agencies, and does not deal with their quasi-judicial or quasi-legislative functions." Federal Power Commission. Interstate Commerce Commission. Federal Trade Commission. U.S. Maritime Commission. Securities & Exchange Commission. National Labor Relations Board. These agencies, the commission stated, regulated: "*** private activity in such significant fields as labor; transportation, whether by rail, truck, pipeline, ship or airplane; credit; banking; securities both on or off the stock exchanges; trade practices; communications including radio, television, telegraph and telephone; the developments, sale and distribution of electric power together with the financing of these and other enterprises." In subsequent sentences the Commission added: "The Commissions were created not only to provide for the orderly dispatch of complicated controversies by bodies deemed expert in their respective fields, but also to eliminate abuses that had crept in and, at the same time, to promote an adequate and healthy development of the activities subject to their control. "To achieve adjudication of controversies the Commissions were freed of the necessity of following the niceties of court procedures, and their decisions were final, with only limited review by the courts." In its "Concluding Report" the Commission made no specific reference to the position of the Patent Office and its place in the Executive branch of government although, in a chart which forms part of that report, the Patent Office is shown as one of ten bureaus of the Department of Commerce grouped together under the general heading "Industrial and Commercial Service." The term "regulatory commission", strictly speaking, does not best describe the Patent Office, but it does perform quasi-judicial functions and certainly "regulates" the activities of those inventors who seek patents, and their backers. A straight and narrow path must be followed by the protection seeker from which deviation is not permitted, and this may be fairly called "regulation". But even if the Patent Office cannot be so described, its right to independence is not prejudiced; good management in the Executive Branch warranting its elevation to this rank. Now that the Congress is being asked to consider the patent "Reform" bill of the present Administration together with many other bills relating to the Patent Office and system which have been introduced by various important members of the Congress, a favorable opportunity has been presented. Even if complete liberation cannot be effected immediately, a favorable atmosphere for a later effort may be created. It may also be demonstrated, if an opportunity is provided, that the authority of the Assistant Secretary for Science and Technology to control the activities of the Commissioner is quite limited under the present order. Of course, the Secretary can enlarge this Assistant Secretary's authority if he chooses to do so but such a move would be in defiance of the reasoning which resulted in the creation of the office of Assistant Secretary for Science and Technology in the first instance. It will probably be appropriate to give some account of the administrative move which resulted in the creation of this position on the Commerce staff. At the request of the then Secretary of Commerce, the Hon. Sinclair Weeks, the National Academy of Sciences appointed a committee to evaluate the funetions and operations of the Department of Commerce, the objectives being stated as follows: "The National Academy of Sciences will establish an ad hoc committee of eminent scientists and engineers to evaluate the functions and operations of the Department of Commerce to insure that it is fulfilling its responsibilities in the interest of science and technological progress. The activity of said committee shall include, but is not restricted to, a study of all major elements (1) of the needs of science and industry for services of the type the Department should provide, (2) of new or improved means to enable the Department to effectively meet these needs, and (3) of improved methods of relating the Department's program on a continuing basis to dominant and changing needs of science and industry. The findings and recommendations of the ad hoc committee will be incorporated in a final report to the Secretary of Commerce." The Committee appointed transmitted a 10-page report from which two paragraphs are copied, as follows: "The scientific and technical areas that Standards, Patents, Weather, Maritime, Roads, Coast and Geodetic and Technical Services encompass are indeed wide, with little overlap or interplay. The operations of all areas, however, have much in common. They are the operations that scientists and engineers employ in creating new scientific and technical knowledge and applying it; and in evaluating, interpreting, and judging scientific and technical information. In carrying out the operations of these widely different areas, laboratory and office space and technical facilities are required. They differ in kind and in amount from one area to another, but have a commonness in that all provide the environment and the tools for creative scientists and engineers." It is clear that the ad hoc committee of scientists was thinking of science and technology and not of legal decisions, court reviews and patent systems generally, both here and throughout the world. And yet it was the Assistant Secretary for Science and Technology who addressed committees of both House and Senate in support of the Administration bill for the Reform of the patent system and improved relations with other patent issuing countries. He argued at length against retention of our "interference" practice and advo |