(The report referred to was marked "Exhibit No. 206" and is included in the appendix on p. 1139.) The CHAIRMAN. May I ask the witness to identify the Science Advisory Board? Dr. BUSH. The Science Advisory Board, sir, was set up under the National Academy of Sciences by order of the President and requested to advise the several departments of the Government as requested, and this report was one result. The Secretary of Commerce asked that he be advised in regard to certain operations of the patent system in connection with the advent of new industries, so that this report was made to him. Mr. DIENNER. Will you discuss for us briefly your view as to whether 17 years is a proper period for the life of a patent? Dr. BUSH. Well, sir, we haven't really tried it out in recent years. I would like to see the situation brought into form so that 17 years would actually be the period, and then see how it works. Mr. DIENNER. Answering the question in respect to the grant as being for a period of 17 years, do you have any comments as to whether you think it ought to be longer or shorter, assuming that delays in the Patent Office were reduced or eliminated? Dr. BUSH. If the delays were reduced or if the 20-year rule were introduced as proposed by the Commissioner, then it seems to me that that is a good reasonable period. Mr. DIENNER. To pursue the point further, Mr. Chairman, I should like to have the witness tell us briefly the purpose of the subcommittee's report and the recommendations which are attached to it in general. RECOMMENDATIONS OF THE SCIENCE ADVISORY BOARD Dr. BUSH. I can do that very briefly, indeed, since there are only three principal recommendations and a number of minor ones. The first one, and the most important one, is one that was presented to you yesterday by the Commissioner of Patents: the proposal that there be established in this country a single court of patent appeals in the form in which we proposed it here. It was also urged that this court be supplied with proper technical advice of its own in the consideration of patent cases. The second recommendation, which is associated with that, is that there shall be supplied to courts of first instance in the consideration of patent disputes technical advice to the court as contrasted with the present situation where the only technical advice available to the court is by experts presented as witnesses. My committee felt strongly that the determination of a patent case involves the law and the facts, and the facts in a patent case are technical facts, properly understood only by men with a technical background, so there should be joined to the court for the proper determination of those facts individuals who have the proper scientific and technical background to understand them, rather than to expect a judge to acquire that necessary knowledge in the brief course of a suit. Finally we made one recommendation in regard to the opening of patents before issuance not to contest within the general system but to the submission of additional evidence by anyone interested in order to increase the presumption of validity of issued patents. The unfortunate situation that obtains today is that an individual who is granted a patent by the United States Government has not as great assurance as he ought to have that that patent is valid and will be sustained. Anything that can be done to increase the presumption of validity of that patent when it is issued will aid in the introduction of new ideas in industry, because it will shorten and make easy the path of the man who has to forge his way. Mr. DIENNER. Then might we conclude from your statement that the one significant thing in your opinion for improvement of the system would be in the direction of increasing the presumptive validity of the patent when issued? Dr. BUSH. Increase its presumptive validity when issued and make simple and inexpensive and direct the procedure by which that validity will be tested in the courts, if necessary. Senator KING. May I ask one question? Who would select the supposedly nonpartisan adviser, technical advisers, to the judge who acts in the first instance? Dr. BUSH. The court itself, sir, in my judgment should select its own advisors. There is no lack in this country of properly qualified scientific and technical men who are utterly nonpartisan, who have no connection in industry whatever in some cases, who would be available if called upon in a dignified way by the court. Many of them object to becoming experts for the reason that, because the procedure of the court is natural to the attorney, it is not natural to the scientific and technical man called by the court, but as an advisor to the court they would respond and there is no lack of eminent successful and distinguished men who would offer their services, who would respond to a request made that way by the court. Senator KING. I recall, if I am pardoned a diversion, that in the many lawsuits over underground passes, or the determination of the forms in which the ore was found-because there were controversies as to whether it was dolomite lime or the various other forms in which the ore is found-in view of the fact that many of those lawsuits took up weeks, and experts from Germany and the leading geological institutions of the country came before the court-the plaintiff would have experts and the defendant would have experts-and the court, not being a geologist, would have difficulty in determining whom to believe. It was suggested that the court employ independent experts to aid him to disentangle the conflicting statements of the geological experts. There was objection made because they thought perhaps the court would find somebody who knew more or knew less, and there was a conflict as to who should guide the court in selecting the expert to advise him. I was wondering if the same difficulty would not be experienced here. Dr. BUSH. I would personally be quite content to see the court select its own advisors, and I feel quite sure that that would be done in such a way that perfectly adequate and impartial advice would be obtained in order to aid the judge in the determination of facts in a field of science, which by its very nature is one that he cannot know intimately and cannot learn in the brief space of a trial. Senator KING. That would mean Congress would provide a fund from which the experts so selected would be paid, and the judge would determine the compensation which was to be paid them? 124491-39-pt. 3- -5 Dr. BUSH. Yes, sir. That compensation, I think, should be commensurate with their usual earning power. Mr. FRANK. Dr. Bush, has any progress been made since the date of this report in classifying patents in the manner therein indicated into major and minor patents? Dr. BUSH. The Commissioner of Patents and I have had a number of discussions on that. It has been discussed before his advisory committee. Progress has been made, but we have not arrived as yet at any concensus of opinion. It is a difficult thing to make such a classification. It is done, as you undoubtedly know, in Germany. Mr. FRANK. Is there a body of literature on that subject? Dr. BUSH. Yes, sir; quite a number of references. Mr. DIENNER. I think the question of major and minor patents is provided for in the law of Germany, Japan, and Poland at present. Those are the only countries. Mr. FRANK. Would it be any great burden at some time to supplement the record by a bibliography on that subject? 1 Dr. BUSH. No difficulty. I haven't it offhand, but I think it can be obtained. I think the Patent Office Journal has such a list. BEARING OF PATENTS ON STANDARD OF LIVING Mr. DIENNER. One final question, Dr. Bush. How far would you go in a statement as to the influence of the patent system as a primary factor in producing in this country the highest standard of living in the world? Dr. BUSH. It has been an extremely important factor in putting this country ahead of the world in industrial development. At the present time it is operating very lamely indeed in that respect. If we can remove some of the difficulties in the way of the pioneer, the technical pioneer, if we can make it more readily possible to establish new industries in this country based on inventions, if we can remove some of the difficulties of litigation, if we can simplify the procedure, then I think we have a reasonable chance that we can regain our position and proceed on the way. Unless we do that, our industrial progress will be permanently lost. Senator KING. Isn't one of the difficulties of acquiring a patent in order to carry forward inventions with which we are familiar, because of high taxes or for other reasons, legitimate or illegitimate? Dr. BUSH. High taxes come into it in another way. It is very difficult to secure funds from an individual if, under the conditions of failure he loses 100 percent, and under the conditions of success he gains 15 percent. That is most certainly a difficulty in the way of securing new funds for new developments. I do not think, however, that the taxes imposed by our patent system on the inventor are in effect a serious bar. Senator KING. Do you perceive any reduction in the stream of technological development and of invention? Dr. BUSH. No, sir; I expect an acceleration. Senator KING. It seems to me there are more inventions these days than during the 10 years proceeding; by that I mean in this decade measured by the former decade. 1 For brief bibliography on short term, minor or petty patents see appendix, p. 1157. Dr. BUSH. There are plenty of them. The progress of the world is not stopped in any degree. Representative SUMNERS. Unfortunately, I couldn't be here during the beginning of the testimony, and if any of my questions have anything to do with subjects which you already have testified on, I wish you would consider the question withdrawn before I ask it. I am interested in the statement just made. It may be expected that the continuing development of our genius as inventors will help us to retain our position in the world. As you visualize the future, would those inventions take the direction of helping us to produce cheaper and more efficiently, in the main, things we now produce, or produce new things which we do not now have, as distinguished from producing an old thing in a new way. Dr. BUSH. I think both things will undoubtedly be accomplished. The extent of human desires is infinite. The extent of human needs may be bounded, but there is no limit to the number of new devices and new advances that can be absorbed by the public if they are produced at a reasonable cost and properly distributed, and we are nowhere near the end of new devices for the public benefit, new combinations, so that I fully expect the program will take two forms: the production of more of the usual things that we already have and in better form by better methods and the introduction of wholly new things. Representative SUMNERS. I will stop you on that point. Would it mean a reduction in the unit cost of producing things which people now use? Dr. BUSH. Yes, sir; that is one aspect. Representative SUMNERS. Would that have a bearing in your judgment on the number of people unemployed? Dr. BUSH. Yes, it has a bearing; a very definite bearing, and it has a bearing in both directions. Progress, sir, always pays for itself by at least temporary disturbance. If we have a static world, we can have a completely stable affair in which things do not change. That is very lovely in one way, but if we are going to go ahead technically or in any other way then we must expect at least local disruption and temporary disruption which means unemployment. There is no question, however, that the whole trend of invention, the whole trend of the introduction into industry of new devices and new ways of doing old things has been to greatly increase employment in the long run and in the end, so that it works in both ways; it produces in my opinion a temporary and local disruption but in the long run and over a considerable period generally increases the standard of living and increases enormously the potential employment. Representative SUMNERS. May I ask you another question, as a scientist. These changes that result from scientific progress in the fields of mechanical things, may we expect that nature will more or less take care of the temporary addition of unemployment in the disruption or will we have to expect that there shall be some scientific developments to take care of the results of scientific development? Dr. BUSH. I feel, sir, that if our procedure for the introduction of new industries in this country, for the commercialization of new ideas. and new things had been faster, had been ready, had been easily operated in the past decade, we would not have anywhere near the problem that we now face in that regard. The fact that new indus tries have not come ahead, that their way has been inhibited in a thousand directions, is one of the reasons that we are in difficulty at the present time. As industries grow old, there must be the advent of new industries to pick up the slack or we will have difficulty. Representative SUMNERS. I don't want to appear to be in opposition because I wouldn't even if I were opposed-I wouldn't expose myself to anything of that sort, but do you think there has been any lack of relative progress in the sciences, in scientific development in the last 10 or 15 years when we have accumulated some of our modern problems? Dr. BUSH. No, sir; science has gone ahead at an accelerated rate. NEED FOR SCIENTIFIC ADVISORS IN PATENT TRIALS Representative SUMNERS. One other question. I thank you very much for answering those questions; it has been very helpful to me. Now, in regard to this expert to aid the court, would it be expected as a practical proposition that a group of scientists would be sufficiently expert in the whole field to constitute more or less professional advisers of the court or would you have to have for each particular group of patents that are under consideration, somebody who would have time to become expert, more expert, as expert as would be required in that particular field? Dr. BUSH. I think the scientist that comes in that regard should be called upon to be expert not in the particular patents before the court, but in the science which underlies them. Representative SUMNERS. That is rather important. Would you mind helping us on that? That is very important to me and I believe to my colleagues in this regard. You think then that a man who is trained in the general field of science and who has a scientific turn of mind could probably advise a court with reference to most any patent litigation. Dr. BUSH. I think he could be of great help, indeed, sir. Representative SUMNERS. I didn't get that across. I didn't mean somebody to be a great help but I mean as great help as somebody trained with reference to a particular group of questions involved. Dr. BUSH. Oh, I see the point. I think we need both, sir. Representative SUMNERS. You couldn't have them in one advisory court in the same lawsuit, could you? Dr. BUSH. My committee did not recommend that we abolish the idea of experts called by the litigants. Representative SUMNERS. I understand that. Dr. BUSH. But that we supplement it. Representative SUMNERS. But you are making a concrete suggestion with regard to court procedure which I am sure the members of the committee are very much interested in because you are getting down to something, don't you know. All this talking around doesn't get you anywhere but when you get down to a concrete proposition, that means something. That is why I am taking the time to get a pretty clear view of your notion because you are going away. When we come to details, could we hope to get the aid that you suggest by having some persons who possibly are attached to the judiciary to give this advice, or would you have to have somebody in each lawsuit who is particularly trained with reference to that particular group of patents? |