an independent department we shall be wanting to have its head a Cabinet officer. That demand will never come from me, Mr. President: and if I am here in my place in the Senate and it is ever made I will oppose it. There is no reason why the head of the Patent Office department should be a member of the Cabinet. The Cabinet is large enough already. It requires neither the Commissioner of Agriculture nor the Commissioner of Patents within it. They can not add to its value; they can not add to its strength. The Patent Department is not of a character which requires representation in the executive council; it exercises little influence on the administrative policy of the Government, very little more influence than do the courts. There is neither need nor propriety that the head of the department should be one of the President's constitutional advisers, and I venture to say that in the last twenty years no question has ever arisen in Cabinet council regarding the administration of the business of the Patent Office. I venture to say the Secretary of the Interior has not been called upon in Cabinet sessions in twenty years to express any opinion as to the management of that portion of his Department. With the other branches it is different; the railroads, the Indians, and the lands have much to do with the political management of our Government. The administration must have a policy with regard to the Indians, with regard to land grants and land-grant railroads, but as to patents it needs and should have no other policy than that so plainly expressed in the Constitution."

On April 16, 1912 Mr. Oldfield, Chairman of the Committee on Patents of the House of Representatives, introduced a bill identified as HR 23,417 which, if enacted into law, would have established the Patent Office as an Independent Agency. This was vigorously supported by the then Commissioner of Patents, Mr. Edward B. Moore, in both a letter dated April 10, addressed to Mr. Oldfield (by permission of the President) submitting a draft of that bill in the form in which he hoped it would be introduced, and in his Annual Report to the Congress. In his Annual Report Commissioner Moore said:

INDEPENDENT BUREAU DESIRABLE

"I have long been of the opinion that since the opinion of the Supreme Court in the Case of Butterworth v. United States ex rel. Hoe and others (112 U.S. 50), which made the decision of the commissioner final within the office, thus doing away with appeals to the Secretary of the Interior, the connection of the Patent Office with the department is so slight that it would seem that its separation and establishment as an independent bureau is eminently desirable. Such a step would not only place the Patent Office upon a more stable footing with regard to the exercise of the powers of the commissioner invested in him by law, but would relieve the department of the physical burden of caring for and appropriating for the bureau.

"I believe that the establishment of the Patent Office as an independent bureau would be a step in the direction of progress and that it is also in the interest of efficiency and economy. Its duties as an office are purely judicial in character with such incidental clerical work as is necessary to carry them out; it requires in its employees special training along scientific and legal lines, and such employees are difficult to obtain and to retain in service, except at salaries higher than those paid to the other employees of the department; and the Patent Office has always suffered by reason of the failure of Congress to make the provision necessary. If good results are to be obtained, everything possible should be done to insure the independence, efficiency, and permanence of tenure of the entire force of the Patent Office. The Patent Office has nothing in common with the other bureaus of the Interior Department or of any other department. There is no appeal to the Secretary of the Interior on any question relating to the grant of a patent, and all appointments to positions in the Patent Office, except such as are Presidential, are made upon the nomination of the Commissioner of Patents, approved by the Secretary. The desirability of this change in the status of the Patent Office is recognized and provided for in a bill introduced by Mr. Oldfield, chairman of the House Committee on Patents of the House of Representatives, on April 16, 1912, and known as H.R. 23417."

and in his letter to Mr. Oldfield he pointed out that:

"One of the most important things which, in my opinion should be accomplished is the establishment of the Patent Office as an independent bureau. As you are aware, patents were originally granted under the act of 1790 by a tribunal consisting of the Secretary of State, the Secretary of War, and the Attorney General, and patents granted by this board were signed by the President. From 1790 to 1802 the Patent Office was under the jurisdiction of the State Department, and the work was performed by a clerk of that department. In 1802 Dr. Thornton was appointed as superintendent of the Patent Office, and for 26 years exercised full control of its force. In 1836 the Patent Office was reorganized and made a bureau of the State Department its chief being given the designation of Commissioner of Patents. He was appointed by the President with the advice and consent of the Senate. Under the law of 1849 the Patent Office was transferred to the Interior Department, and has been a bureau thereof since that date. The Patent Office has nothing in common with any of the other bureaus of the Interior Department, and Mr. Secretary Fisher in his report to Congress for the fiscal year ending June 30, 1911, has indicated that, in his opinion, it is improperly made a part of the Interior Department. . .

...

"It is difficult to see that there is such relationship between the work performed by the Patent Office and that performed by the Department of Commerce and Labor or any of its bureaus as would necessitate placing the Patent Office within the jurisdiction of the Secretary of Commerce and Labor. The function of the Patent Office is believed to be wholly distinct from any bureau of any department."

Commissioner Moore also was clearly of the belief that, in the event that a separate building for the Patent Office should be authorized, the Patent Office should be very definitely freed of its association with an executive department, saying:

"A measure has recently been presented to Congress authorizing the construction of a new Patent Office building as a companion building to the Library of Congress. It is believed that the Patent Office, like the Library of Congress, should be independent and directly under the control of Congress. This, in my opinion, would be in consonance with the spirit of the Constitution and Congress would have power to "Promote the progress of science and the useful arts" by securing to both authors and inventors the exclusive rights to their respective writings and discoveries. On this clause of the Constitution, so far as authors are concerned, Congress has provided the Library in which their writings may be suitably stored and supervised by an officer, independent of any department. It seems to me that likewise a Patent Office building should be provided and the Patent Office also made a separate institution responsible directly to Congress for the carrying out of the duties imposed upon it."

In 1919 a very considerable effort by a number of well advised supporters of the Patent system was made to establish the Patent Office as an independent bureau. The National Research Council submitted a report of favorable nature, a proposed bill, H.R. 5011 of June 5, 1919, resulted, and hearings were promptly conducted by the House Committee on Patents. That portion of the report of the National Research Council pertinent to the subject under discussion follows:

THE PATENT OFFICE A SEPARATE INSTITUTION AND INDEPENDENT OF THE
DEPARTMENT OF THE INTERIOR

"The second proposal which your committee recommends is that the Patent Office be made a separate institution, independent of the Interior or any other department.

"The Patent Office was originally in the State Department, but, on the formation of the Interior Department in 1849 it was made a bureau of that department and has been so ever since.

"The only matters connected with the Patent Office with which the Secre tary of the Interior has anything to do are the following: The Secretary of the Interior must submit to Congress all estimates for appropriations. All appointments, excepting those of the commissioner, two assistant commission

ers, and five examiners in chief, are made by the Secretary, but only on the recommendation of the commissioner. The eight places named are presidential appointments, but the Secretary makes recommendations to the President. All matters of disbarment or reinstatement after disbarment of attorneys are passed upon finally by the secretary. All matters of discipline are under the Secretary's jurisdiction. The Secretary of the Interior must approve all changes in the rules of practice of the Patent Office, but he can not compel the commissioner of patents to make any change whatsoever.

"No appeal lies to the Secretary from any decisions of the commissioner, either in matters of merit or practice. All such matters, as far as they are reviewable, rest with the courts of the District of Columbia.

"The Secretary of the Interior no longer signs the patents and has no jurisdiction to grant or refuse them.

"Thus it will be seen that the Secretary of the Interior is not required to know anything about patents or patent law. He is not selected because of any qualifications for the granting of patents or supervision over the Patent Office. The Secretary of the Interior has less influence over the Patent Office than over any other bureaus of the Interior Department, because there are appeals to him from all the other bureaus. Nor is the Patent Office related to any other bureau of the Interior Department.

"The Secretary of the Interior has recently moved out of the Patent Office Building, thus severing physical contact with the Patent Office, which is but a type of the lack of mental contact between the office of the Secretary of the Interior and the Patent Office.

"The experience of many commissioners over a period of several generations has shown that, no matter how pleasant the personal relations may be, the Commissioner of Patents can not expect any real benefit to the Patent Office to flow from its connections with the Interior Department. There is nothing in common between the interests of the Interior Department and those of the Patent Office and, consequently, nothing to produce any advantage from the amalgamation of the Patent Office into the Interior Department.

"Your committee believes that to make the Patent Office an independent bureau would greatly increase the respect of the public and Congress and the courts for it and would make it easier to procure enlarged appropriations and better salaries than under present conditions.

"As to appropriations, under present conditions the demands of the Patent Office for equipment, personnel, and salaries are necessarily subjected to comparison both by the Secretary of the Interior and by Congress with those of several other unrelated bureaus, each pressing its own demands and criticizing any apparent preference. In the opinion of your committee this operates as a severe handicap. In estimating the needs of the Patent Office, there should be no discussion of the demands, for example, of the Pension Office or the General Land Office. As an independent institution, the needs of the Patent Office would be judged on their necessity and the appropriation be determined by consideration of general policy.

"As to the personnel, the enhanced dignity and independence of the Patent Office would render all positions of importance in it more attractive, and particularly would make it easier to secure and retain in office men of the necessary qualifications to fill the difficult office of commissioner.

"A copy of a proposed bill for making the Patent Office an independent bureau is annexed to this report; and its enactment is recommended by your committee."

The testimony of witnesses who supported the bill was generally to the same effect.

For thirty-five years following the hearings of 1919, the subject of possible independence of the Patent Office seemed to have attracted little Congressional attention, no bills to implement this objective having been introduced and no bearings scheduled.

During this period however, the Patent Office, despite the determined resistance of the Patent bar, suffered a very severe set-back in that Reorganization Plan Number 5 became law. Because of this poorly conceived and thoroughly ill advised legislation the Commissioner's authority to decide Patent controversies, arising in the Patent Office, became vested in the Secretary of Commerce who, in effect, became Commissioner of Patents, the Presidentially appointed

Commissioner functioning in the performance of his duties only by delegation of authority from the Secretary. The passage of this law nullified the earlier decision of the Supreme Court in the Case of Butterworth v. Hoe, 112 U.S. 50. previously mentioned, which upheld the contention of the then Commissioner to be exclusively entitled to decide cases "in which, by law, he is appointed to exercise his discretion judicially."

At the hearings conducted by Senate and House Committee it was urged by witnesses that the Patent Office should be completely independent of the Department of Commerce although, strictly speaking, this was not the issue involved. All persons who have occupied the Commissioner's chair since the passage of this act have been handicapped to an extent which varied with the circumstances then existing and it is to be hoped that the occupant of this office may, in the near future, carry out his statutory duties without interference from the head of any Department.

In 1955 hearings were held by Subcommittee 5 of the House of Representatives Committee on the Judiciary and those who testified, urged that the Patent Office should be free of possible interference by a Cabinet Officer. In 1957 Senator O'Mahoney, for himself and Senator Wiley, introduced, on April 12th, Senate Bill S. 1862. The bill specifically provided that the Patent Office was to be established as an independent agency in the executive branch of the Government. It was not enacted into law. It was followed by S. 1389 on March 12, 1959, transmitted by Senators O'Mahoney and Wiley jointly, and having the same objective. It was not passed. Thus, today, we look back on a very lengthy series of important recommendations and efforts made by knowledgeable and earnest persons sincerely interested in the welfare of the patent system and especially the Patent Office, none of which bore fruit.

Included among those having knowledge of the manner in which the affairs of the Patent Office are conducted, and who support the proposal to establish the Patent Office as an independent agency, are persons who had served in that Office, including former Commissioners Ooms, Kingsland, Marzall and Watson, also former Assistant Commissioner Richard Spencer, the latter having been particularly interested in that he published a book in which his position on this subject was plainly stated. It was made clear at a 1957 meeting of the Section of Patent, Trademark and Copyright Law of the American Bar Association that former Commissioners Ooms and Marzall supported the independence proposal and Commissioners Kingsland and Watson have made their positions clear at other times and places. Former Commissioner Coe found it to be helpful, in order to obtain Presidential consent to several proposals, to have the then Secretary of Commerce present them on his behalf at meetings of the Cabinet, but in all other respects advocated independence. Assistant Commissioner Spencer devoted an entire chapter of his book "The United States Patent System with a Complete Program for its Improvement and Amplification", published in 1931, to the subject "The Patent Office as an Independent Bureau" and made reference to a number of earlier publications of interest to anyone studying this subject, some of which have not been specifically mentioned in the foregoing paragraphs. His experience had been such as to convince him that the Office should be established as an independent bureau.

Former Congressman Lanham in his October 1955 testimony before the Senate Committee on the Judiciary made it abundantly clear that he favored establishing the Patent Office as an independent agency, this being an expression of opinion which should be given great weight as Mr. Lanham had served 25 years on the Committee on Patents of the House of Representatives.

In the preceding paragraphs the opinions of some, but by no means all, of the persons who have advocated independence of the Patent Office have been mentioned and it is in order to get forth the views of the two large groups of lawyers whose special qualifications and expertise should give their opinions great weight, i.e. the American Patent Law Association and the Section of Patent Trademark and Copyright Law of the American Bar Association. Invesration disclosed the fact that the American Patent Law Association has so pressed no opinion on the subject of Patent Office independence. Patent Section, on the other hand, has given the matter consideration whenever it did express a positive opinion, disapproved the proposal. 1957 (Summary of Proceedings, Page 46) a Section subcommittee

urged that the Section register its support for S. 1862, this being the bill to establish the Patent Office as an independent agency in the executive branch of the Government which had been introduced by Senator O'Mahoney for himself and Senator Wiley. The motion was voted down 32 to 19. The 14 line resume of the brief debate which took place is wholly insufficient to make clear why it was that the motion was lost and certainly fails to correctly summarize the comment of this writer; who supported the resolution. The adverse comments of only two persons are mentioned and only one soon reported comment is understandable, i.e. that if the Patent Office were independent the Commissioner would be forced "to enter the political area".

In 1949 (reported at Page 63 of the 1959 Summary of Proceedings) a resolution favoring the enactment of S. 1389; the second bill introduced by Senators O'Mahoney and Wiley and also proposing to establish the Patent Office as an independent agency was voted down 21 to 10. Those who spoke against the resolution seemed to be persuaded that, if the change were to be made, the Commissioner would be subjected to political pressures, no other reasons for disapproval being advanced. The recommendation of the Committee which presented and supported the resolution was signed by 36 Section members who were favorable and by 8 who disapproved. Thus the over-all vote would have been 46 for passage of the resolution favoring the bill and 29 for rejection had all members of the committee attended the meeting. It will be noted that the attendance at both the 1957 and 1959 Section meetings, as evidenced by the numbers voting on these two resolutions, was quite small in relationship to Section total membership.

The Committee report supporting the resolution presented in 1959 (page 28 of the Committee Reports) was well and thoughtfully prepared; listing a number of substantial reasons why the Patent Office would profit if it were made independent of Commerce and it listed a few which were offered in support of the adverse position. The supporting reasons were largely those which earlier writers had mentioned in the publications to which reference has already been made in this writing. The negative argument was apparently based on these generalities, i.e. (1) the Federal Government would be more efficient with fewer rather than more independent agencies and passage of special legislation of this type for the Patent Office would tend to create a "rash" of clamor for more independent agencies; (2) the Patent Office would lose cabinet representation if it became independent and (3) if made independent it might be included in an existing or a new department not as helpful to is as the Department of Commerce.

The reader must himself evaluate the potency of these arguments but to the writer they lack persuasiveness. Reasons (1) and (3) are based on pure speculation and the likelihood that either feared event, even if it actually occurred, might result disadvantageously to the Patent Office or to the public interest, is not demonstrated. In addition it is highly unlikely that the Patent Office, if made independent, would then be forced into a department other than the Commerce Department or, in other words, have its independence taken away from it. Reason (2) is in the writer's opinion without real substance, Patent Office affairs being dealt with by the Congress and not at meetings of the Cabinet.

When the resolution was being considered at the Section Meeting (1959 Summary of Proceedings 63) it was stated that independent agencies are subjected to political pressure to a greater extent than those attached to major Departments and that the Commissioner would necessarily be a politician. Where is the political pressure coming from? The writer knows of only one instance when pressure which might possibly be called political, was exerted upon a Commissioner (a predecessor in office) and this was applied by the then Secretary of Commerce. The Commissioner of Patents need only be "Political" to the extent that, when he appears before Congressional Committees, he can accurately describe the condition of affairs in the Patent Office, and explain its needs.

A resolution "approving in principle the establishment of the Patent Office as an independent agency" was presented for consideration at the 1963 meeting of the Section (1963 Committee Reports) but was recommitted without action having been taken (1963 Summary of Proceedings 47) and at the 1964 meeting a resolution was presented which called for committee study of "the advisabil