The programs which were recently instituted-and I mean within the last 2 years-to check the integrity, that is the completeness of the files and to correct their deficiencies, represent the first such efforts in 25 years. Now there has been a lot of discussion of legislation in the last 25 years, but precious little consideration of so vital an issue as that.

Similarly the revitalization of the reclassification effort in respect to these files, which I started early in 1972, was long overdue. Its completion will require several years of sustained and substantial effort.

Now earlier reference has been made in the course of these hearings to the matter of classification. Let me add one thought that I think has not been expressed. As technology develops rapidly in the areas that are currently of greatest importance, there is an increased output, at a greater rate, of new technical information. Unless the inflow of new technical information at the Patent Office is classifie promptly and effectively, it becomes increasingly difficult to mak the kind of efficient and effective search on which a good patent examination depends. Now it was a little while before I realized, after I had entered the Patent Office, that the work of maintaining this ongoing and highly important reclassification effort had been abandoned virtually completely. The result was that the examiners were, day by day and week by week, in a deteriorating position with respect to the performance of their mission. The funds appropriated for that purpose in the normal course were, as we say, reprogramed in order to sustain a research and development effort aimed at developing a computerized system for performing the essential work of classifying new technical information.

I suppose I might be permitted a digression at this point to go back and say that one of the factors contributing to the request for my resignation might well have been the fact that in trying to remedy problems of this kind I probably made few friends and most certainly must have made some enemies. There were people who were deeply committed to these projects and who failed, I think, to share my view that some of them had to be reconsidered.

This matter of computerized reclassification is certainly a case in point. I found it was essential in order to preserve the effectiveness of the Patent Office-to prevent the patent examining function in my judgment from going down the drain-to abandon that, and to revitalize this "manual," as we call it, classification effort. In the process I had to relieve from his position (and to eliminate the position) one person in the office who at the time held the title of an Assistant Commissioner. That caused him great pain and discomfort. In time I also suffered considerable pain and discomfort, and also some annoyance, and diversion of a very substantial amount of time in responding to letters from many sources including members of the Congress protesting on his behalf

Mr. BRENNAN. Mr. Chairman, I feel compelled to request you to request the witness to direct his comments to the issues which are relevant to this proceeding. I think we are going far afield here. Mr. GOTTSCHALK. I'm sorry.

Senator HART. Yes sir.

Mr. GOTTSCHALK. Thank you. I appreciate that.

In any event, unless these basic tools, through continuing efforts to maintain them up-to-date and in good working order, are brought to and maintained in a condition permitting effective and efficient examination, nobody, under any system-not the examiner, nor the public counsel nor anyone else will be able to make reliable and meaningful determinations of novelty. And such determinations are the very bedrock on which all aspects of our system depend.

Similarly, if the rules of the game by which patent examiners work, and if the criteria by which their performance is judged and their promotions and salary increases are awarded, are such as to favor quantity of production over quality of work product, concepts. of professionalism and quality will be subjected to a compromising strain which poses a constant and substantial threat to the proper performance of the Patent Office mission. That kind of a system provides powerful incentives to do the wrong things rather than the right things.

I would say, on the basis of my own experience and in terms of such basic administrative matters as those to which I have referred, that strength of administration, stability of administration, and soundness of administration can best be insured in a situation which would make the Patent Office independent of the Commerce Depart

ment.

Now Mr. Browne traced very accurately and interestingly yesterday the history of the Patent Office, and this committee has been informed that there is no evidence that the Patent Office at any time has been subjected to any improper influence in the performance of its mission. I feel constrained to deny this for, on the basis of my experience, I know this not to be so. I accept as valid the observation that there has been over the years an apparent inability of the Department of Commerce to develop and maintain an effective working relationship with the Patent Office, and I don't think that we can anticipate any significant improvement in this kind of relationship if the formal structure were to remain as it is-and that seems to have been the position proposed by the administration yesterday.

Now that position rests largely on the basis of the Commerce Department being able to provide administrative and similar support, which the Patent Office would have to provide for itself if it were independent. Fine. That argument has merit as far as it goes, but there is another side of the story, too. And that is, that because of the family relationship there are corresponding burdens. I have already indicated that with every shift in the administration or in administration policy, the burdens of the Patent Office are enhanced. There is another aspect to this thing that bothers me very considerably. I don't think many people, inside or outside of the Patent Office, are aware that regularly substantial sums of money appropriated for the Patent Office are siphoned off for other uses within the Department of Commerce. That is bad enough, but I think that the seriousness of that threat is underscored by a very recent development. This year for the first time-I think this is not inappropriate for disclosure for the purposes of this committee and I hope I am

right, Senator-this year the Patent Office funding request was not presented individually as it traditionally has been; it was consolidated with the requests of the other units of the Science and Technology wing of the Department of Commerce and a single appropriation request for that group of five units was made. Which is to say, if this is projected into the future, that there probably cannot be said to exist such a thing as a Patent Office appropriation. This means that the purse control of the Patent Office is on a totally dif ferent basis than it historically has been. And when you consider the fact that the Office is under-as I have already indicated my experience confirms-the control of someone whose interests are not basically and primarily oriented to the Patent system but to other things, such as science and technology, this has rather interesting implications. I could easily substantiate in time, by examples, the fact that this inherent possibility is indeed a reality. It could become increasingly a problem.

Mr. Browne pointed to the strange dichotomy by which the Presidential appointee who heads the Patent Office is subject to review by the Judiciary Committee, whereas that person's superior, to whom he must indeed respond, and with those directives he must indeed comply, is subject to review by a totally different group. And it was rather interesting I thought, in this connection, that during the confirmation hearings of the incumbent Assistant Secretary for Science and Technology Senator Tunney pointed rather perceptively to the fact that, while the incumbent Assistant Secretary was to be highly commended on the grounds of scientific prowess, there was very little in the record to suggest any background of dealing effectively with administrative matters, legal and patent matters, and things of that sort. It is a matter of grave concern that an agency of over 2,700 people, and, as you have heard, over 1,100 professionals, should be subject to the influence of someone who has had relatively little occasion to become acquainted with the barest fundamentals of what is involved either in terms of the specific functions or the management skills involved in that kind of an operation.

Now I do believe that the matter of improper or undue influence is not just confined to the last 2 years or so; it has, however, been very strikingly in evidence. I speak again to one of the three points you mentioned earlier. There was not, so far as I can recall, any sitnation directly involved in the terms which you used-and I can't recall them exactly Senator-in connection with picking out a particular application and dealing with it, as it were, out of turn. There was not that kind of a situation, but there was something that I think is not too different from it in basic principle. I can't particularize at this point because the specific matter is still pending, and under our law the facts relating to that situation must be preserved in confidence. But the fact of the matter is that the Commissioner was directed to follow a certain course of judicial action contrary to the determination that he and the general counsel agreed was sound. That seemed to me a bit much. By the same sign, I think

Senator HART. But as you indicated, it is almost inherent in the structure as we now have it, which to me argues persuasively for the desirability for an independent agency.

Mr. GOTTSCHALK. Precisely. There has been such an absence of specific knowledge about these things as to encourage bland acceptance of the generalized statements that this doesn't exist. I confirm to you in rather positive terms and very specifically that it does, and it is not new.

You will recall that Mr. Browne mentioned the name of Assistant Secretary Holloman yesterday-and that was back a few years, but there again the same basic structure existed. A good deal of influence was brought to bear.

Now at this point I think I should mention specifically that in my judgment the Administration bill, so far as the language of it is quoted in their statement, does not go far enough. Their proposal in essence was, as I understand it, that the Patent Office remain where it is, but that legislation be enacted to insure that the Patent Office would enjoy independence of the Department of Commerce with respect to its "adjudicatory function." Well, I submit that that is not enough, because that would leave the Patent Office subject to the influence of the Department of Commerce with respect to matters of general policy, legislation, treaty arrangements and the like-and it was indeed a matter within that general category with which I most associate the experience of some years ago to which Mr. Browne referred. So we can't look to that language as providing an adequate safeguard, even if for other reasons we were to accept the views of the administration that the Patent Office ought to stay put.

I agree with you, as I understand your position, Senator, that an independent agency is strongly indicated.

Senator HART. Commissioner, thank you very much. I think your testimony does bear strongly on the desirability of an independent agency because I think inherent in this structure will be the recurrence of both lack of continuity and the competing claims. Whereas with an independent office perhaps the tendency there and the criticism then would be that it would overstress the importance of patents and their role, but at least they would be preoccupied with patents. I am grateful that on such short notice you have been willing to come in and give us the benefit of your experience and opinion. Again, thank you.

Mr. BRENNAN. What is your position, Commissioner, on the proposed Office of Public Counsel?

Mr. GOTTSCHALK. I would say this, Mr. Brennan, it is a little difficult for me to answer as clearly as I should like for these reasons. I am clear that I would not be in favor of the public counsel functions as proposed in S. 1321. I think some limitation and refinement and sharper focusing would make that more effective. I am totally committed to the idea that some representation of the public interest, and some broadening of legal approach within the Patent Office, are necessary. It is a little difficult for me to speak to the administration bill because, as you must be aware, I don't know what it is. I know about the administration position only what we have been able to learn from the remarks of Mr. Kauper and Mr. Bakke. I have a strong feeling that there is a better likelihood by far that I would agree with those positions dealing with the public counsel than I would with those of S. 1321.

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I feel this, too. The Advisory Council which is provided for in S. 1321, and which has not been much discussed in the course of these hearings, seems to me potentially very important. I would strongly favor such an arrangement concerning the public counsel as would make it possible for him-nay would require him--to provide effective input to the Advisory Council. I would not go so far as to say he ought to be constituted in any specific capacity such as executive, secretary or official birddog, but he ought to be the eyes and ears of that committee. It ought to be made clear by the legislation that he is to have complete access to any information within the Patent Office. I tend to shy away from any concept of the role of public counsel, however, which would get him too deeply involved in representing the interests of private parties.

I can't help but deal also with the matter of adversary proceedings to some extent because I think they and the role of public counsel are very closely related. I do feel that if adversary proceedings are initiated in any form, this is an area of activity which ought to be of special concern to the public counsel-not necessarily in the role of an advocate, or even as a participant, but from the standpoint of exercising close and continuing supervision to insure that that important-and for us new and untried-experience develops properly, to insure that the system is improved in the way that we would hope, from the adoption of such proceedings. Here again, the way in which he would perform what functions would have to be determined by what kind of adversary proceedings we adopt. May I speak to that issue very briefly?

Mr. BRENNAN. Yes, but please be brief, we are running a little late.

Mr. GOTTSCHALK. I appreciate that Mr. Brennan, and the opportunity to speak to the issues at all.

I would not favor the form of adversary proceedings that are set forth in S. 1321. I more incline to the administration's view, but with reservations. There are two basic routes which they propose. I feel that the first offers too little, for the reason expressed this morning by Mr. Clark, that is, that people will not come forward with prior art unless they are really confident that it will be applied properly. As to the second, I am afraid that this alternative provides too much, and that it would open up the continuing kind of litigation which has characterized the German opposition proceedings which we view with horror. I am not sure that the antitrust approach suggested by Mr. Kauper would be adequate to control this.

I do favor something more like the idea which had its genesis in the Patent Office proposal which was published some time ago. Mr. NASH. No questions.

Senator HART. Thank you. That last answer reminds us how tough it is to move from agreement on what generally is desirable to how in the world you get there.

Mr. GOTTSCHALK. Senator, it is actually again the same point we were making earlier; administration and implementation are interchangeable sometimes.

Senator HART. Thank you.