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possible use of the incentives which are provided by our patent system”, if the private sector is to be adequately encouraged to invest funds and talent in the application of technology to the achievement of national goals.
We welcome the efforts currently being made to promote more effective utilization of American technology as the competition in world trade becomes erer more intense. But the testimony before our Subcommittee suggests that invention and innovation is being retarded by inadequate incentives, and the uncertainty which has developed concerning certain aspects of our patent system.
Because of the complexity and technical nature of patent legislation, it is difficult under the most favorable of circumstances to secure action in the ('ongress. Our task has been rendered significantly more burdensome by the inability of the executive branch to formulate a single position on the patent revision legislation, including a proposed statutory clarification of the rights of patent owners with respect to the licensing of their inventions. The absence of an Administration position has been exploited by some who wish to weaken and discredit the patent system.
We, therefore, request that you direct the appropriate departments and agencies of the executive branch to undertake renewed efforts to formulate an Administration position on patent law revision. We would hope that it will be possible for you to communicate this position upon the convening of the 93rd Congress. With kindest personal regards. Respectfully yours,
John L. MCCLELLAN,
Chairman. Hugh SCOTT,
Ranking Republican Member. Mr. BRENNAN. I further request permission, Mr. Chairman, to have printed at this point in the record the notice of this hearing and the text of S. 1321.
Senator HART. So ordered.
(From the Congressional Record, Senate, July 31, 1973)
NOTICE OF HEARINGS ON PATENT LAW REVISION Mr. MCCLELLAN. Mr. President, as chairman of the Subcommittee on Patents, Trademarks, and Copyrights, I desire to announce that the subcommittee has decided to reopen the hearings on the general revision of the patent law, title 35.
The hearings are being reopened for the purpose of receiving testimony on various important new issues, such as are contained in S. 1321. The hearings will include the following subjects :
First, modification of patent examination proceedings to provide public adversary hearings;
Second, the creation of the Office of Public Counsel;
Third, establishment of a system for deferred examination of patent applications;
Fourth, revision of the patent fee schedule, including the establishment of maintenance fees; and
Fifth, administrative restructuring of the Patent Office, including the proposed establishment of the Patent Office as an independent agency.
The hearings will be held on September 11, 13, and 14 in room 1114 of the Dirksen Senate Office Building and will commence each day at 10 a.m.
Anyone desiring to testify during the hearings should contact the office of the subcommittee at 202-225-2268.
[S. 1321, 93d Cong. 1st Sess. ] A BILL For the general reform and revision of the patent laws, title 35 of the
United States Code, and for other purposes 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 Constitution, entitled "Patents", is hereby amended in its entirety to read as follows:
1 100 261
“TITLE 35–PATENTS "Part
"1. Patent Office “II. Patentability of inventions and grants of patents "III. Patents and infringement of patents
"PART I–PATENT OFFICE “Chapter “1. Establishment, officers, functions "2. Proceedings in the Patent Office "3. Practice before the Patent Office "4. Patent Office fees
1 21 31 41
"CHAPTER 1.-ESTABLISHMENT, OFFICERS, FUNCTIONS "Sec. "1. National patent policy. “2. Establishment and seal. "3. Commissioner 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 Office, at times referred to in this title as the 'Office', 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 Patent Office shall have a seal with which letters patent, certificates of trademark registration, and papers issued from the Office shall be authenticated. "S 3. Commissioner and other officers
“(a) There shall be a chief administrative officer of the Patent Office, the Commissioner of Patents, referred to in this title as the Commissioner'. The Commissioner shall be appointed by the President, by and with the advice and consent of the Senate, and he shall be compensated at the rate now or hereafter provided for level IV of the Executive Schedule pay rates (5 U.S.C. 5315). The Commissioner 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. The Commissioner is authorized to promulgate rules and regulations governing proceedings before the Patent Office; to define any and all terms used in this title in connection therewith; and otherwise to prescribe such further rules and regulations as may be necessary or proper for purposes of administration of the Patent Office.
“(b) There shall be a Deputy Commissioner of the Patent Office, who shall be appointed by the President, by and with the advice and consent of the Senate, and who shall be compensated at the rate now or hereafter provided for level V of the Executive Schedule pay rates (5 U.S.C. 5316). The Deputy Commissioner shall perform such functions as the Commissioner may assign or delegate and he shall act as Commissioner during the absence or disability of the Commissioner or in the event of a vacancy in the Office of Commissioner.
“(c) There shall be no more than three Assistant Commissioners of the Patent Office, who shall be appointed by the Commissioner and who shall be compensated at a per annum rate of basic compensation fixed by him not in excess of the maximum scheduled rate provided for positions in grade 18 of the General Schedule (5 U.S.C. 5104). Such Assistant Commissioners shall perform such functions as the Commissioner may from time to time assign or delegate. In the event of vacancies in the offices of Commissioner and Deputy Commissioner, or their absence or disability, the Assistant Commissioner senior in date of appointment shall fill the office of Commissioner until said vacancies, absences, or disabilities terminate.
"(d) There shall in addition be an Assistant Commissioner of the Patent Office for Appeals, Litigation, and Public Counsel, 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 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 Commissioner 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 Commissioner in carrying out his responsibilities hereunder.
“(e) The Commissioner shall, subject to other requirements of law, appoint other officers and employees of the Patent Office, assign or delegate to them the functions of the Office, 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. "S 5. Board of Appeals
“(a) There shall be in the Office not to exceed twenty-four examiners-inchief, 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 examiner-in-chief 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 examiners-in-chief shall constitute a Board of Appeals in the Patent Office. The examiners-in-chief shall be persons of competent legal knowledge and scientific ability, who will perform and exercise the judicial functions of the Office.
"(c) The Board of Appeals shall review all final orders (as that term is defined in 5 l'.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 Office procedure which the Commissioner has by general rule or regulation assigned for determination by a single member of the Board of Appeals, who shall from time to time be designated by the examiner-in-chief senior in date of appointment. Except as otherwise provided in this title, the Board of Appeals shall exercise all judicial functions, including all agency view or appeals, under this title. The order of the Board of Appeals shall constitute final agency action (as that term is defined in 5 U.S.C. 551) in all matters considered by it, as shall the order of a single member in matters assigned for determination by him.
“(d) Each appeal or other action shall be heard or considered by a panel of at least three members of the Board of Appeals, except as otherwise provided in subsection (c) of this section. Said panel shall be designated for each case by the examiner-in-chief senior in date of appointment, consistent with the provisions of section 3105, of title 5, United States Code. The Board of appeals has sole power to grant rehearings.
“(e) Whenever the Commission considers it necessary to maintain the work of the Board of Appeals current, he may designate any patent examiner of the primary examiner grade or higher having the requisite ability, to serve as examiner in chief for periods not exceeding six months each. An examiner so designated shall be qualified to act as a member of the Board of Appeals. Not more than one acting examiner in chief shall be a member of the panel of the Board of Appeals hearing any appeal or considering any case. The Commissioner is authorized to fix the per annum rate of basic compensation of each designated examiner in chief in the Patent Office at not in excess of the maximum scheduled rate provided for positions in grade 16 of the General Schedule (5 U.S.C. 5104). The per annum rate of basic compensation of each designated examiner in chief shall be adjusted, at the close of the period for which he was designated to act as examiner in chief, to the per annum rate of basic compensation which he would have been receiving at the close of such period if such designation had not been made. "§ 6. Library, classifications of patents, public search facilities
“(a) The Commissioner shall maintain a complete and current library of patents and scientific and other works and periodicals, both foreign and domestic, in the Patent Office which shall be available to its employees in the discharge of their duties under this title and to assist the public in the study of science and the useful arts.
“(b) The Commissioner shall establish liaison with all Government agencies in order to make available in the Patent Office library additional scientific, technological, and other works and periodicals. Such material or copies thereof shall be provided to the Office by such agencies without charge if the Commissioner so requests. l'pon request, the Commissioner shall provide other Gov. ernment agencies, without charge. with copies of specified documents maintained in the custody of the Office.
"(c) The Commissioner shall maintain with appropriate revisions a current publicly available classification and index by subject matter of published specifications of United States patents and of such other patents and applications, whether abandoned or published, and other scientific and other works and periodicals, both foreign and domestic, as may be necessary for the purpose of determining with readiness and accuracy the patentability of subject matter for which applications for patent are filed.
"(d) The Commissioner shall maintain public facilities, in various parts of the United States, for the searching of prior art and patent materials, both foreign and domestic. To the maximum extent feasible, such prior art and patent materials shall be complete and current, drawing upon all relevant scientific, technological, and other works and periodicals, both foreign and domestie, available to any Government agency. The Commissioner shall have such prior art and patent materials classified and indexed according to the classification of patents.
*(e) To the maximum extent feasible, the Commissioner shall mechanize, or otherwise facilitate by electrical, mechanical, or other appropriate means, the search of such prior art and patent materials. The Commissioner shall conduct an ongoing program of research and development to keep the handling, classification, storage, and retrieval of such prior art and patent material current and up to the state of the art. "7. Certified copies of records
*The Commissioner shall, upon payment of the prescribed fee, furnish certified copies of records of the Patent Office within thirty days to persons entitled thereto. "9 8. Publications
"(a) The Commissioner shall cause to be published in a timely fashion in suchi format as he determines to be suitable, the following:
“(1) the specifications and drawings of patents, and patent applications, subject to the provisions of this title;
“(2) certificates of trademark registrations, including statements and drawings;
“(3) complete and current annual volumes of all current decisions of the Patent Office Board of Appeals and the Trademark Trial and Appeal Board in patent and trademark cases;
“(4) current classification manuals and indices of the classifications of patents. “(b) The Commissioner may cause to be published, in such format as he determines to be suitable, the following:
“(1) Patent abstracts,
“(3) Annual indices of patents, published applications and of trademarks and information concerning the same,
“(4) Pamphlet copies of the patent laws and rules of practice, laws and rules relating to trademarks and circulars or other publications relat
ing to the business Office. "(c) The Commissioner may exchange any of the publications specified in subsections (a) and (b) of this section for publications desirable for the use of the Patent Office, and furnish copies of any of these publications to international intergovernmental organizations of which the United States is a member.
"(d) The Commissioner may supply copies of specifications and drawings of patents to public libraries in the United States which shall maintain such copies for the use of the public, at the rate for each year's issue prescribed by the Commissioner in accordance with section 41(a) of this title.
“(e) The Patent Office may print the headings of the drawings for patents for the purpose of photolithography.
"(f) The Commissioner may establish a public information service for the dissemination to the public of information concerning patents and trademarks, and may from time to time disseminate or provide for dissemination of public technological and other public information, the publication of which in his judgment would promote the progress of science and the useful arts. Such dissemination may be made by periodical or other publications, the preparation and display of exhibits, and other appropriate means. “8 9. Annual report to Congress
“The Commissioner shall report to Congress annually the money received and expended, statistics concerning the work of the fice, an evaluation of the overall quality of the patents issued (including court decisions related to the validity and enforcement of patents), and other information relating to the Office as may be useful to the Congress or the public. Such statistics shall evaluate current patterns (as well as historical development over time) of patent and trademark ownership, grouped by economic categories of ownership, significance and type of technology involved, and geographic origin. "g 10. Advisory Council on the Patent System
“(a) There shall be an Advisory Council on the Patent System (referred to in this section as the 'Council') of not less than twelve nor more than twenty-four members to be appointed by the President, by and with the ad