is an equal and opposite reaction." Well, in a sense it's the very last word in obviousness. Not only mankind, but every moving organism in nature "knows" it, in the sense that it makes use of the law constantly the squirrel when it jumps from branch to branch, for instance. But Sir Isaac Newton, with our human faculty for language making, asked an ingenious question. The question was: "Can it be that for every action there is an equal and opposite reaction?" Having asked it, it was easy to establish by experiments that such was indeed the case. He probably put to himself numerous preliminary questions of course. But the affirmative proof of the final question is a cornerstone of Newtonian physics, and was revolutionary in its consequences. The formulation of a progressive set of consistently precise questions (even though we are generally not consciously aware of doing so), is, I believe, of the essence of scientific discovery and invention.

Gentlemen, you will understand that I speak predominantly for the small manufacturer and the private inventor. I am not interested in the great corporations, for whom I should imagine the patent system in its present state is all too well suited. It is well suited to the circumstances of the great corporations because of the technical complexity of patent law and the high cost of litigation arising out of that complexity. Furthermore, it is becoming increasingly the case that it is only the wealthy corporations which can produce ideas likely to lead to valid patents. This is because they have vast research facilities. The small manufacturer and the private inventor, on the other hand, are greatly handicapped. They are handicapped in no less than three ways. First, by only being able to draw on a personal background of knowledge or that of a limited staff, and experiment with meager facilities so that there is less likelihood of the development of any worth-while patentable invention. Second, any patent obtained is less likely to be held valid through its probable greater simplicity or obviousness. Third, the economic disadvantage suffered by the small business resulting in lack of advertising and distributing power, capital equipment, etc.

I would like to advert to my earlier reference to a society without a patent system-without a system for rewarding technical innovators. I am aware that some antagonists of the patent system are fond of saying that society would be much as it is had no patent system been instituted. Very obviously it is impossible to prove or disprove such assertions. I only suggest that such a proposition is as unlikely to be the case as it would be if the idea of the joint stock companyshareholding corporation-had not been thought of. But even if it be admitted all that has been invented and commercially adopted would have been invented and adopted in a patentless society-even if this be admitted, please consider all the vast wealth of ideas, suggestions, and so forth, contained in the printed publications or patents not adopted commercially. Only a very small percentage of things patented get taken up commercially. There is a tremendous waste just as there is in nature. But yet, because of the patent-office publication system it is by no means a complete waste on a more mature view. For most of the so-called unsuccessful patents contain, in one way or another, valuable leads to those who come after. Because we have a patent system, in your country and in mine, inventors were encouraged

to publish their inventions in exchange for getting a patent and the hope of gain which went with it. Without a patent system what incentive would there be for this army of inventors to publish their ideas so that one in a thousand learning selectively from the others might develop an economically valuable invention. The 700 to 1,000 patents a week which have been issuing week in and week out, year in and year out for the past 50 years or so, are repeatedly scrutinized by science writers for the popular-science press, which alone has a monthly sale today of nearly 4,000,000 copies. These inventive incrustacea, these technologic coral-island builders, with all their unsuccessful but duly published ideas, when taken collectively, are every bit as vauable as the so-called inventive genius. Without them he couldn't be the genius he is hailed to be. Just as Andre Malreux says in his monumental History of Art that the only inspiration for a work of art is an antecedent work of art, so the only inspiration for an invention is an antecedent invention. And that seems to me to point up the crucial fallacy in the reasoning of people like Mr. Justice Douglas in his dismissal of the ostensibly slight invention. Such searing denunciation can wither independent creative enterprise no end when you consider the extent to which it is given publicity. I said just now there is a colossal mortality in the world of invention. Yet up to now it had survived (albeit to an attenuated extent). But like a species in nature, mortality can commence to run against survival. This happens when conditions become too precarious to make life worth living. We are in danger of this happening in the patent system.

Mr. BRYSON. Mr. Kent, I am not sure that you understand the situation here, but we were advised this morning by special notice that the bill which is under debate in the House now would require our presence on the floor.

Mr. KENT. Yes.

Mr. BRYSON. It is now 12:15, and the members will have to report to the House.

Mr. BOGGS. Mr. Chairman, so that the present witness will not have to come back I suggest that his entire statement be incorporated in the record.

Mr. BRYSON. Yes, we will be pleased to have your entire statement in the record. If you would like to do that you may do so.

Mr. KENT. I would like to, Mr. Bryson.

(The balance of Mr. Kent's statement is as follows:)

Up to now the high mortality rate among patents has probably been no higher and the cost no greater than the cost of mistakes written off to the average experience an dencountered every day in business and in life generally. The only bad thing about it is the false promise of validity which the otherwise commercially successful patentee gets taken in by. That is bad. And it has most eloquently been argued by Ford W. Harris, in the Journal of the Patent Office Society, No. 12, volume 32, December 5, 1950. I would like to read some extracts from this paper:

"The public has little interest in whether or not these new things were the result of a flash of genius or the result of long and expensive research and development. The benefit to the public does not, in any degree, depend upon how the new things were produced. Moreover, the public is the ultimate judge of the value of the advance. Unless the new thing is substantially novel and useful, the public will not use it. Our troubles started years ago with Atlantic Works v. Brady (107 U. S. 192, 27 L. Ed. 438), which held "it was not the intention of the patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea." This statement was approved in Thompson v. Boisselier (114 U. S. 1, 29 L. Ed. 76); Western

Electric Co. v. Rochester Tel. Co. (145 Fed. 41), and other cases over the years culminating in Cuno Engineering Corp. v. Automatic D. Corp. (314 U. S. 84, 86 L. Ed. 63), in which it was said that 'the new device, however useful it may be, must reveal the flash of creative genius, not merely the skill of the calling.' The Cuno case related to the cigarette lighter now found in substantially every automobile, and the words 'however useful' appearing in the Supreme Court's opinion tacitly recognized that this device was very useful. As far as the benefit to the public was concerned, of course, made no difference whether or not the new thing was the result of a flash of genius, and the public has certainly benefited by the new lighter to a very great extent. There is no very logical basis for the objection to patents on trivial inventions; that is, inventions that are merely small contributions to the art. If the step in the art is of no value to the public, the public will not use the invention and the patent is a harmless nullity. If the public finds a trivial invention useful in any degree, it will pay for the use of it to an amount proportional to its demonstrated utility, and it is no more than fair that it should do so. On the other hand, the value of any step in the art is very hard to predict in advance. After the patent has issued the degree of public acceptance may fix its value.

"Established industries move in small steps and not by flashes of genius, and progress by such small steps should be encouraged by patents. It is hard to understand the courts' abhorrence for such small steps. However, if we agree that there should be some floor to the degree of utility, it is entirely unnecessary for the Patent Office to use the fiction of invention to establish and maintain it. The Patent Office is fully empowered by R. S. 4893, 35 U. S. C. 36, to screen out and refuse to issue trivial patents as, under this statute, the Commissioner is empowered to refuse to issue a patent on any invention if he considers it is not sufficiently useful and important to merit a patent. This is exactly what the average rejection for lack of invention over the prior art means. The examiner tacitly admits that the application has made a step in the art but holds that the step was not of sufficient extent to merit a patent. Now it is entirely fitting and desirable that the Patent Office should retain this power. An examiner is the sole bargaining agent for the people of the United States in negotiating with applicants for patent. Every application is an offer by the applicant to allow full particulars as to his invention to be made public in return for the allowance of certain claims presented in the application, and the prosecution of the average application proceeds by a series of offers by the applicant as to claims he is willing to accept as his price for the bargain.

"It is obviously proper for the Commissioner, through his deputy, to refuse to make a poor bargain for his principal, the public. It is strange that, if the Commissioner refuses to make what he thinks is a poor bargain, we are now able to go to the courts and ask them to make such a bargain. If any person offers to buy anything else from a Government agency and the agency refuses to make the bargain, he cannot take the matter to any court. Obviously, it is my opinion, the Patent Office should abandon rejections for lack of invention over the prior art but retain and exercise its right to reject claims on the ground that, in the opinion of the examiner, the invention claimed is not sufficiently useful and important to merit a patent. I also think that such a rejection should be reviewable by the Board of Appeals but should not be appealable to any court. In other words, I think if the Patent Office decides it does not think it should make the proposed bargain, that should settle the matter.

"The applicant would be only negatively injured by such a refusal to grant a patent. His invention has been maintained in secrecy during the pendency of his application and if his application is rejected no disclosure is made to the public. He is exactly where he was before he made his application. He has failed to make a bargain and therefore, there is no contract to rescind or reform.

"Practically there is very little harm resulting from the examiner's hiding behind this fiction of invention except that arising from waste of time in arguments over the rejection for lack of invention which are upon a metaphysical plane; metaphysics in this, and other cases, being merely one person talking about something he does not understand, and cannot prove, to another person who does not understand him and cannot disprove what he says.

"Great harm, however, is done by the courts under this fiction. An applicant has made an advance in the art and convinced the Patent Office that his advance is sufficiently useful and important to merit a patent. A bargain has been made, the applicant's price has been paid by the publicizing of his invention and he has obtained a patent containing some claims. (But, notwithstanding this bargain, if the patent is involved in litigation) the court simply considers de novo a question already decided by the Patent Office and if the court decides that the patent was invalid due to lack of invention over the prior art, it is simply holding that the Patent Office made a poor bargain. It rescinds the bargain, takes away the patentee's rights due solely to a mistake in judgment by the Patent Office, the applicant not being at fault in any way. Of necessity, it allows the public, whose agent, the Commissioner, made the hargain, to retain all the advantages arising from the bargain, since the applicant's invention has been fully disclosed to the public. The inventor has lost due to a triple play of the legislative to the administrative to the judicial departments of the Government. Congress promised to give him a patent if he conformed to certain statutes, the Patent Office checked to see that he so conformed, and the courts nullified the whole deal."

The patent records old and new are being scanned by searchers by the hundreds every day year in and year out, the purpose of which can roughly be put under these headings:

1. On behalf of inventors who believe they may have a new idea.

2. By engineers, etc., in search of ideas.

3. By science publishers who publish collectively around 4 million copies of magazines per month, as I have already stated.

4. By attorneys searching to find anticipations to defeat patents already granted.

The last form of searching, in my opinion, is wrong. And my contention is pretty much what I take to be that of Harris, whom I have just quoted, although it is not exactly in line.

My suggestion is this: That the great body of technical know-how in the United States Patent Office, should remain available to public study as it is now, but that it should no longer be citable as prior art, unless, it is under 25 years old. I mean it should no longer be possible to support the refusal of a patent solely by the production of any printed material published more than 25 years ago. You will thus recognize that I would allow the repatenting (subject to some restrictoins which could, I think, only be satisfactorily elicited by study) of anything which was a practical, modernized version of a patent, publication, etc., more than 25 years old, provided of course that any public use of the published or earlier patented idea had also been abandoned for more than 25 years, and provided that such repatenting would not be permitted until the modernized device were actually on the market, and then only for terms varying, I should say, from 1 to 5 years at the discretion of the Patent Office. Intention to apply for a repatent would have to be made, say 8 months ahead of a contractual manufacturing date, and a bond of indemnity for nonperformance might have to be posted. Intention to apply for repatent would also have to be well and thoroughly published to the trade so that the regrant could be opposed on production of proof of user or publication within the last 25 years.

Whether the proposals I have just sketched would stand up to the rigorous analysis of a panel of experts seriously considering them remains to be seen. All the same, I am surprised how well they have stood up to the objections which have confronted me in a desultory way during the years since I first formulated the proposal. You see, it is as Mr. Harris, whom I have been quoting, said, that the public has little interest in whether a new thing is a result of a flash of genius or how the new things were produced. I don't think the public either cares when the new thing was originally produced. As a matter of fact, I think that what Dr. Samuel Johnson said about story-writing is very applicable to inventions, that if it's good it's not new, and if it's new it's no good. And this whole question of newness, what does it mean anyway? To whom should an invention be new? Why should an invention have to be new in the fictitious sense of being "unborn knowledge" on both the scientific and the popular levels? Wouldn't it be of more benefit to the public if the word "new" in the patent sense meant "information currently or recently made available to the public in concrete manufactured form"?

My proposal of terminating once and for all the Patent Office citation of what I call ancient anticipations would permit the regrant of patents for short

terms under conditions which would insure that the public would get the benefit of the invention. At the present time there are many patents which have long since entered the public domain. A small percentage were once produced commercially. Others were patented before the market was ripe for their commercial exploitation. Anyhow, whatever their history, my proposal would insure that such old patents if regranted, would be new as usable experiences to the contemporary generation. It is one of the standard arguments for the grant of limited patent monopolies in the first place that (a) nothing is taken away from the public which it formerly enjoyed and (b) that the monopoly is given to the public after a limited period for enjoyment of reward. But the crucial fact is, and remember I am speaking more particularly of the inventions of small manufacturers and private individuals, not the big developments of great corporations so much-that if a patented invention is not taken up commercially during its lifetime it won't get taken up after it has expired for the reason that no nursing-period protection can be obtained upon it again. Consequently the public doesn't get the benefit of it anyway. Every patent attorney, I am sure, has had the experience of clients coming into their office with an idea, often in a field they are wholly familiar with and declaring that a search is quite unnecessary because they know that nothing like it has appeared before. Accordingly they want to patent it and commercialize it forthwith. The patent attorney, however, points out that it often happens that a search shows an idea to have been anticipated years before even when that idea has been made by someone who has been in the trade all his life. So reluctantly your client agrees to a search, and you make it. You find what you half expected to find, namely, that the thing has been done before, much to the disgust of your client who invariably, according to my experience, washes it right out of his mind forthwith. Who is the loser? The public, surely, is the biggest aggregate loser in these cases. Then there are those inventions on which it has only been possible to get weak patents, subsequently pirated by powerful competitors, thus forcing infant industries out of business during the nursing period. The pirates secure the improvement on the nonverbal level of fact because the courts have denied it is an improvement on the level of verbal fiction. In this case the public gets the improvement all right, but I want to ask you, gentlemen, was it along such swashbuckling lines as these that the "progress of useful arts" was supposed to be fostered? Is that what your founding fathers intended when they wrote these words into the Constitution? The public only got the improvements because the manufacturer mistakenly believed he was protected. If he had known how impotent the patent system really was, the public would probably have remained without it, just as, for example, the public would probably have remained without the time and temper-saving cashier's counter in self-service grocery stores, which was the subject matter of Turnham's patent No. 2,242,408, held invalid by the Supreme Court last December when the owner of the patent tried to stop the A & P Tea Co. from using it without permission. Now it is here, it will no doubt stay. But I do suggest that it is highly likely that this valuable invention would never have seen the light of commercial usage had the inventor known what a fraudulent grant the present kind of patent so often is.

If

Mr. Chairman and gentlemen, I think you will agree that we need to encourage free creative enterprise among small manufacturers and private inventors. that is so, a patent system is needed in which inventors and small-business men can put their trust. Otherwise they will tend to keep inventions secret. In examining my copy of Patent Claims by Ridsdale Ellis published in 1949, I notice a publisher's reference to another book by the same author entitled "Patent Assignments and Licenses, Including Trade Secrets." In reference to trade secret law the reference included this pregnant remark:

"The various stringent rules laid down recently by the Supreme Court with regard to the requirements for a patentable invention are bringing to the fore, in a way never presented before, the advisability of operating inventions as secret processes instead of securing a patent which may be held invalid by the Court later."

Now we don't want to go back to the medieval practice of trade secrecy. Those of you who are familiar with the situation in the Atomic Energy Commission are well aware of the extent to which the leading scientists of this country are irked by the secrecy regulations under which they have to work. Compel manufacturers to adopt measures of secrecy as their only recourse against competition, and a chaotic condition would quickly arise.

I have two clients in western Canada-chemists-who have invented chemical means for removing skins from potatoes, which has been sanctioned by the pure