cated the adoption of a substitute procedure-basic patent law subjects which are hardly related to the subject of "science and technology" or to the consideration of "regulations" suggested by the Commissioner. What was his experience in this legal area? Was he acting within his grant of authority? It is unprofitable, however, to argue this point since it is abundantly clear that the Secretary can delegate, because of the authority vested in him by Reorganization Plan Par. 5, to anybody below him in the Department of Commerce, all or any portion of the authority vested in the Commissioner of Patents by Section 6 of the Title 35 of the U.S. Code. This is not likely to happen to a really serious extent but it may happen and, if the Assistant Secretary was acting within the scope of authority granted him when he testified recently it has happened. Reform is desirable. The Commissioner is the one to discuss with the Congress the legal functions and needs of the Patent Office, and to propose plans for international cooperation in both patent and trademark matters rather than persons not legally trained with less knowledge of and experience with patents, although of higher rank. One Secretary of Commerce, the Hon. Sinclair Weeks, was more than willing to restore to the Commissioner of Patents the exclusive right to perform, without interference from above, his statutory duties although he was unwilling to support a proposal that the Patent Office be made an independent agency. Thus, he supported before the Bureau of the Budget a proposed bill to be submitted to the Congress which read, in part, as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that Section 3 of Title 35 of the United States code is amended by adding at the end thereof the following: "The Secretary of Commerce may authorize only the Commissioner of Patents to superintend or perform all duties required by law respecting the granting and issuing of patents and the registration of trademarks. Performance of the functions of examining applications for patent by officers and employees of the Patent Office, of considering appeals under Section 134 of this Title by the Board of Appeals, and of adjudicating questions of priority under Section 135 of this Title by the Board of Patent Interferences, shall not be reviewable by or subject to the control of the Secretary of Commerce. Likewise, the functions of passing upon applications for registration of trademarks, service marks, collective marks, and certification marks, and renewals thereof, applications for registration on the supplemental register provided by Section 1091 of Title 15, trademark opposition, cancellation, interference and concurrent use proceedings, and appeals under Section 1070 of Title 15, shall not be reviewable by or subject to the control of the Secretary of Commerce." This proposed legislation was definitely intended to recognize by statute the authority of the Commissioner to perform without interference by the Secretary, those duties which all Commissioners had customarily and legally performed prior to the enactment of Reorganization Plan No. 5 in 1950. However, when presented to the Bureau of the Budget for endorsement at a hearing attended by the Secretary and the Commissioner, which was necessary, that Bureau held that, if it aided the Patent Office in this manner, it would be forced to act in favor of all other similarly situated bureaus of the Executive Branch and that would be too great a burden. So the effort failed although the reasoning of the Bureau of the Budget was far from persuasive, there being wide differences between the functions performed by the Patent Office and those of all other bureaus. It may be asked, and no doubt will be asked if a bill proposing to establish the Patent Office as an independent agency should reach the Congress, how the Patent Office cost of operation will be affected by such a move, and whether or not its "housekeeping" capabilities may be affected. A careful study of these possibilities made some years ago, when S. 1862 (Senator O'Mahoney's bill) was pending, indicated that of the various functions performed by officers and employees of the Patent Office by far the greater number would not be rendered more difficult or expensive to perform in the event that the personnel and facilities of the Department of Commerce were no longer available, and that many functions could be performed more easily at less cost by an independent Patent Office. In fact, it was then found that one additional function only would of necessity be performed were the Patent Office to be separated from Commerce, i.e., it would be necessary to designate one or more employees to make purchases, by contract, of supplies from industrial concerns. Much duplication of paperwork would be eliminated if the Patent Office could act independently of Commerce, and, generally speaking, it is believed that the well-staffed Patent Office could, now that it is in its own building, operate more efficiently and at less cost, in a housekeeping sense, than it will be able to do if it continues to act through employees of the Department of Commerce. The office of the Secretary of Commerce may be, and often is, occupied by several persons successively during the period of service of one Commissioner of Patents and, during the same time interval, a succession of persons may occupy each of the subordinate offices, the several positions of Assistant Secretary and that of General Counsel. Rarely do these Presidential appointees have more than superficial knowledge of the manner in which the Patent Office carries out its statutory duties but, as already made clear, at least one is given supervisory authority with respect to the Patent Office and is thus in position to disapprove constructive proposals of the Commissioner if, in his judgment, they should not be implemented. All possibility of such interference should be eliminated and, when the Congress has approved a plan of procedure proposed by the Commissioner, he should be allowed to carry it out without Departmental interference. Actually, the slowly changing committees of Congress, the Appropriation and Judiciary Committees of House and Senate, with their permanent staffs and sometimes with agency scrutinizing special assistants, are in better position to evaluate the merits of proposals developed by the Commissioner of Patents than are the more rapidly shifting persons who occupy executive positions in the Commerce Department. The question may be asked-why has not the Congress, which has created the nine Regulatory Agencies with their quasi-judicial and quasi-legislative functions and given them a measure of freedom from executive supervision, not similarly acted in the case of the Patent Office? In all probability its long history of service as a bureau of a Department of the Executive Branch, first in State, then in Interior and now in Commerce, in each of which it performed well, has not stimulated the concept that it could better its statutory functions if it were made independent of departmental regulation. The Congress passed the legislation which created the Patent Office in 1836 and has since modified, from time to time, the statutes which control its operations as well as appropriating, year by year, the funds which it must have in order to function. The Congress is well aware of its great value to the nation and of the fact that it is manned by competent, diligent, personnel, makes its own rules, selects those who wish to practice before it, disciplines those who fail to adhere to its regulations, constantly endeavors without pressure from any superior authority to improve its techniques of examination and its administration and, in summary, is an unusually experienced body well able to manage its own affairs administratively, under Congressional supervision, and render appropriate decisions in individual cases, subject to adequate court review. It does not, in the writer's opinion, need Cabinet representation, in fact there is no information tending to show that it has within recent years been given Cabinet consideration except when Commissioner Coe was in office, as has been previously mentioned. Summarizing briefly : 1. As early as the year 1812, it was suggested by a Congressional Committee that the "Patent establishment" might well be separated from the Department of State and as late as 1959, a bill to establish the Patent Office as an Independent Agency was placed before the Senate. Between these dates, from time to time, other bills to the same effect were introduced and many individuals well acquainted with the manner in which the patent system functions and the Patent Office performs its statutory tasks have expressed the belief that it should be made independent of any Executive Department. 2. No knowledgeable group has expressed a contrary opinion except the sec tion of Patent Trademark and Copyright Law of the American Bar Association which, in 1957, voted its disapproval of the Bill, S. 1862, introduced by Senator O'Mahoney, and which, if it had become law, would have had the effect of establishing the Patent Office as an independent bureau. 3. The American Patent Law Association has not advocated either independence of the Patent Office or its continuance as a Bureau of the Department of Commerce. 4. If the Patent Office were to be established as an independent bureau, its cost of operation would not be increased-perhaps decreased. 5. If established as an independent agency, the Patent Office would not have representation at meetings of the President's Cabinet, but no important, longlasting advantage is known to have been realized in past years because of such representation. Its presentations to the Committees of Congress might well be more satisfactorily accomplished. Senator HART. Mr. Browne, thank you very much for an interesting and helpful testimony. Mr. BROWNE. Thank you very much. Senator HART. We adjourn to resume in this hearing room on Friday of this week at 10 a.m. [Whereupon, at 3:25 p.m., the subcommittee was recessed to reconvene at 10 a.m., Friday, September 14, 1973.] S. 1321-FOR THE GENERAL REFORM OF THE PATENT LAWS, TITLE 35 OF THE UNITED STATES CODE, AND FOR OTHER PURPOSES FRIDAY, SEPTEMBER 14, 1973 U.S. SENATE, SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS Washington, D.C. The committee met, pursuant to recess, at 9:10 a.m., in room 1114, Dirksen Senate Office Building, Senator Philip A. Hart presiding. Present: Senator Hart (presiding). Also present: Thomas C. Brennan, chief counsel; and Dennis Unkovic, assistant counsel, Subcommittee on Patents, Trademarks and Copyrights; Bernard Nash, assistant counsel, Anti-Trust Subcommittee. Senator HART. The committee will be in order. Mr. BRENNAN. Mr. Chairman, the first witnesses this morning appear on behalf of the American Chemical Society. Senator HART. President Nixon, would you identify yourself? STATEMENT OF DR. ALAN C. NIXON, PRESIDENT, AMERICAN CHEMICAL SOCIETY; ACCOMPANIED BY: DR. ROBERT W. CAIRNS, EXECUTIVE DIRECTOR, DR. JOHN T. MAYNARD, CHAIRMAN OF THE SOCIETY'S COMMITTEE ON PATENT MATTERS AND RELATED LEGISLATION, AND DR. STEPHEN T. QUIGLEY, DIRECTOR OF THE DEPARTMENT OF CHEMISTRY AND PUBLIC AFFAIRS Dr. NIXON. My name is Alan C. Nixon. I am president of the American Chemical Society for 1973, and with the authorization of its board of directors, I appear before you today to present the Society's statement. Accompanying me today are Dr. Robert W. Cairns, executive director; Dr. John T. Maynard, chairman of the Society's Committee on Patent Matters and Related Legislation; and Dr. Stephen T. Quigley, director of the Department of Chemistry and Public Affairs. We appreciate being given this opportunity to comment on certain features of The Patent Reform Act of 1973, S. 1321. The issues addressed by this legislation are both fundamental to the formulation of national science policy and of vital significance with respect to the ability of our nation to resolve many of the problems which confront it. These issues have been under discussion for some time now by the committee on patent matters and related legislation of |