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Patent Office should be made an independent agency. That is a proposal that is contained in S. 1321. I think Commissioner Gottschalk is in a position to bring us first hand knowledge and private experience to that otherwise theoretical question of should we have an independent agency? And at my request he has agreed to appear this morning. I welcome him.
Mr. BRENNAN. Mr. Chairman, just a brief statement for the record. Both the counsel for the subcommittee and the counsel to the Minority Leader were available in their offices until 5:30 last evening. The first we were informed of this development was at 9 a.m. this morning. The well-established practice of the subcommittee has been to request witnesses to submit statements 24 hours in advance. The subcommittee staff has tried to cooperate with your staff on these hearings. I regret that we were not extended the same courtesy. Thank you Mr. Chairman.
Senator Hart. I regret that that sequence of events occurred and will assume full responsibility for it. I did not determine until midday yesterday afternoon to invite the Commissioner. It never occurred to me it was a clear violation of the 24-hour rule, a rule very difficult to enforce in other committees, but a very desirable rule. Your comment I think is completely proper. My explanation does not change that. You should have been advised.
However, I felt it was desirable to call the Commissioner for two reasons: First, to get your reaction, Mr. Commissioner, generally, to the concept of the independent agency proposal, and, secondly, to ask of you a question that I asked of an earlier witness to react to trade press reports as to the circumstances and reasons for your resignation. As I understand the problem it relates directly to the independent agency proposal.
So let me ask first the question that I directed to the Commerce Committee witnesses and I hope I am almost reciting literally what I asked them.
It has been brought to my attention through trade press reports that Commissioner Gottschalk was fired without prior warning by the Assistant Secretary for Science and Technology for three reasons: Refusing to give special consideration to a particular patent application, advocating the many other reforms in S. 1321 to the displeasure of the organized patent bar, and arguing that since patent reform was so vitally needed, the administration should not risk the fate of 1971 and should sever the antitrust considerations from the patent reform considerations.
Would you describe, Commissioner, the circumstances that attended your resignation and specifically what your opinion is in respect to the accuracy of those reports?
STATEMENT OF ROBERT GOTTSCHALK, FORMER COMMISSIONER,
U.S. PATENT OFFICE
Mr. GOTTSCHALK. Senator, let me acknowledge your invitation and my willingness to appear. I hasten to explain that as you might anticipate, I have had mixed feelings about appearing as a witness in these hearings but felt that I had no choice in the light of your remarks yesterday followed by your invitation to testify.
I certainly must agree that your inquiries are directed to points which I would consider most relevant and undoubtedly important in arriving at appropriate solutions of the problems with which the committee is now concerned. If my participation in these hearings, and if drawing upon my past experiences can be helpful, then I would regard it as desirable to make myself and those experiences as fully available as possible. I would like not to be misunderstood in that. I was concerned-and I think understandably so—lest any voluntary approach on my part be misunderstood in the light of the developments to which some of your inquiries have been directed.
It might be appropriate to point out by way of general background that I spent approximately 3 years in the Patent Office.
I joined the Patent Office as Deputy Commissioner in the spring of 1970. I became Acting Commissioner on or about August 25th, 1971. I became Commissioner by recess appointment on January 4 of 1972. I was later confirmed by the Senate and, pursuant to Senate confirmation, reappointed. My resignation from the Patent Office and from Government service was effective June 29.
Part of what concerns us of course is your interest in determining the circumstances with respect to, and indeed the nature of, that resignation. I can describe the mechanics of what happened. I don't believe I am in position to answer in detail questions raised with respect to the three points you mentioned, for the reason that in truth, I do not know why I was fired. I think possibly that the references with respect to those points may have some basis in fact, but I would regard this-on grounds of reason and probability-as unlikely. I could be wrong. The fact remains that I do not understand and was never given any adequate explanation of the circumstances attending the request for my resignation.
I will, as best I can, outline the situation broadly. I must say that at the time I was appointed Commissioner I was greatly surprised, but I think possibly that the appointment was a direct response to the efforts which I had been making while Deputy Commissioner and Acting Commissioner. The point I would make there is that the then Secretary, Mr. Stans, had been very concerned about the internal state of the Patent Office and I knew that he was deeply interested in dealing effectively and promptly with many of the important problems with which the Office was struggling. I think it not unfair to characterize his approach as one of near-desperation, impatience, and perhaps even anger. I do know that there were tense moments between us; but I know too that as time went on, and as he became better acquainted with what was going on as I attempted to achieve his objectives, he became more optimistic about the resolution of those problems. What I am saying in short is that what had begun as a relatively antagonistic experience resulted in one of very close cooperation and, on the part of the Secretary, appreciation expressed many times for the fine work" that I was doing in my role as Commissioner.
I seemed also to serve well and by all standards to satisfy the requirements that his successor, Mr. Peterson, imposed. We had an excellent relationship.
It was against that background that it came as a total surprise that the things that I was doing seemed so totally unacceptable. The
whole chain of events came as a “bolt from the blue” and indeed with no prior warning:
On April 19, well, let me go back a little bit further. The Secretary came aboard in January of 1973. Shortly thereafter, in the office of the then Acting Assistant Secretary for Science and Technology, I and other members of the Science and Technology units of the Department of Commerce, together with the Acting Assistant Secretary, provided briefings for the Secretary. Presentations of the various units of the Patent Office, the National Bureau of Standards and others, averaged about 15 to 20 minutes each, at most. As it happens, the presentation by the Patent Office, which I made, was the last. It was no longer than 20 minutes. It may well have been more like 15. At best it sketched in broadest outline the functions of the Patent Office, its staffing and funding situation, it physical facilities, and little else. At no time thereafter did I have with the Secretary any discussion relating to Patent Office affairs or problems. Indeed at no time thereafter, with the one exception to which I will refer later, did we ever have any discussion beyond the merest kind of social and casual contact, at receptions or matters of that sort. I assumed, perhaps incorrectly, that he was aware of and satisfied by what I was doing.
On April 19, as I recall the date, the present Assistant Secretary for Science and Technology was sworn in. On May 7, a Monday morning, I received at 8:30, a telephone call in which she requested that I appear at her office at 9 o'clock. I did. As I entered, she motioned me to a chair and proceeded to speak directly to the point. She said very briefly, in what I recall as approximately as three sentences, that she was aware that I had indeed been doing a very fine job; she recognized that I had made great strides, particularly in dealing with some of the people and personnel and policy problems of the office; and that I had made other strides forward as well-but that I had a fatal fault or flaw, and that as a result of that she felt constrained to ask for my resignation.
To say that I was stunned of course would be an understatement. I inquired as to the reasons for the request and I received no answer that I can repeat; none that I then thought I understood or could begin to accept, because at best there were the vaguest references only to such things as inability to get along with the top managers of the Patent Office. There was a vague reference to support for her position in that respect in an audit report, then presumably still in process of preparation by an audit team from the Department of Commerce, access to which I did not have at that time. So that as I heard the few words spoken in that connection, I had absolutely no way of knowing what she might have had in mind and indeed I was surprised by the reference for a still further reason--this represents a digression but I assure you a minor one, namely, the effort that was covered by that report was one that I had initiated some months before. I had requested that the Department of Commerce, working with specialists from the Civil Service Commission, provide assistance which I felt was needed. I had identified certain problems. I realized they were deep rooted and difficult to deal with. They were the kinds of problems which I suppose permeate many government
agencies, and I could not break through the bureaucratic redtape and built-in resistances to the point where I could accomplish the degree of improvement that I thought was necessary.
The request for expert assistance was intended to help solve these problems. I later found, when the report came to my attention, shortly before I left the office, that the report was prepared on a basis that reflected nothing of its genesis. It purported to identify to me the problems which I had identified in the first place in my request—the inference being that I had in fact been deficient in, presumably, failing to recognize the existence of these problems.
What I am suggesting is that that whole situation-with respect to the report and the study on which it was based-may be symptomatic of the fluff that surrounded whatever reality may have been responsible for the actual request for my resignation. The words I heard and the report itself seem artificial, contrived, and for the most part irrelevant.
I was not asked for a resignation on the spot. The request was that by the following Monday, May 14, I return with a draft letter or resignation. It was of course to be addressed to the President. It was stipulated that it was to be effective June 30.
The suggestion was made that I refer in it simply and generally to a desire to return to private life. The suggestion further was made that, in the meantime, I seek employment elsewhere. I explained in response that it was very difficult for me to cope with a situation I didn't understand, and it was very difficult for me to take seriously the suggestion that I seek employment while in government employ, and particularly so for the reason that I was facing the necessity to be in Vienna for the Vienna Diplomatic Conference from approximately the middle of May until the middle of June. To no avail. The request was insisted on, that I return the following Monday, May 14, with the draft letter of resignation.
I withdrew on that basis, pondered, and concluded that I could not submit a resignation under those circumstances. I did, in fact, prepare a letter explaining how I felt on that point and stating my position that I felt in any event my obligations to the patent community, and to the President who had appointed me, were such that I could not so resign without a full understanding.
I planned to meet with the Assistant Secretary on Monday, May 14, but could not do so because she was then en route to Washington from Seattle. And as it happened, the following day, May 15, was the last day on which I could possibly leave for Vienna and still get there in time to perform my function as head of our delegation, and meet with our people for 1 day in preparation for the formal opening of the conference the following day. So faced with the request that I have spoken of, faced with the time frame I have just indicated, and working against the background of the June 30 date which she had stipulated, I thought probably the best thing I could do would be to go over and get the things started at the conference, and deal with this problem later, having no doubt that I could. But not so. Tuesday morning in telephone conversations, the message came to me. I would use the words of that message rather exactly at this point: This memorandum came to me addressed to Commis
sioner from Mickey Jo, one of the secretaries in the office, dated May 15. The content:
Helen Snyder from Dr. Anker Johnson's office called at 8:50 o'clock to say that they had been left a note by Dr. Anker Johnson to be transmitted to you as follows: "Mr. Gottschalk is not to leave the country without seeing Dr. Anker Johnson. Please be sure that he understands this.” Dr. Anker Johnson is at NBS this morning at a symposium and Ms. Snyder says
you get in touch with her there, it would probably be best to call Dr. Roberts' office.
Well, I tried, indeed I tried, to reach her. Eventually there was a break in the symposium, and I spoke with the Assistant Secretary for approximately 3 to 5 minutes on the telephone. She was very insistent that I would not be permitted to leave the country without having submitted the resignation that she requested. I pointed out that she was putting me to a choice, and that I felt constrained to fulfill my obligations with respect to the treaty—that on the one hand, and my job on the other. She insisted that, treaty or no treaty, she was determined that my resignation be handed in that day. I felt that, as a practical matter, I had no choice but to submit the resignation that was requested and I did, under exactly those circumstances.
You have referred to trade press reports. There was one column which recited briefly and essentially accurately the substance of what I have just related with respect to the specific mechanics of that request.
I turn back to the Friday afternoon of the week of May 7 to report that late that Friday afternoon at approximately 5:30 p.m. I succeeded for the first time in meeting with the Secretary. I told him what happened. He listened with no visible reaction, made no comment, and when I concluded my statement, stated simply that since the Assistant Secretary had responsibility for the operation of the Patent Office, he had no choice but to sustain her decision as a proper exercise of her authority. That is all that I can really tell you about how. It's practically all I can tell you about why.
Now I must say that I do favor some legislative clarification of the patent antitrust questions concerned with licensing. I must say also that I think it rather important that there be early enactment of patent legislation. I had suggested—but only in the course of what I would consider appropriate conference discussion within the executive branch—the view I held, that the early enactment of patent legislation was of such importance that, in my opinion at least, it should not be delayed by insisting upon the enactment at the same time of legislation dealing with these licensing questions. So far as I know that was never taken to be an objectional utterance. As far as I can recall, no criticism of that approach was expressed, then or later.
Now I have spoken to one question you have raised. It obviously has a bearing on my feelings and views with respect to the other, the status of the Patent Office as an independent agency.
Senator Hart. Well, let me interrupt you here if I may, Commissioner. In part this is a reaction to Mr. Brennan's appropriate statement. The subcommittee has authorized these hearings in order to get reactions specifically to five points in the reform proposal. One