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ity of establishing the U.S. Patent Office as an independent agency of Government including both Patent and Trademark activities."

RELATIONSHIP OF THE PATENT OFFICE TO OTHER BUREAUS OF THE DEPARTMENT OF

COMMERCE

From what has already been said it is clear that many who have had first hand knowledge of the nature of the organization of the Patent Office, the statutory functions which it performs, and the character of its personnel, have concluded that there is little resemblance between it and the other Bureaus of the Department of Commerce. In fact the Patent Office is different in its makeup, statutory authority and performance from any other Bureau which is attached to any other Department of Government. It more closely resembles in its functions, several of the Independent Agencies or Regulatory Commissions than it does any other non-independent bureau. It is hardly necessary to explain how it differs from The National Bureau of Standards, the Weather Bureau, the Coast and Geodetic Survey, The Bureau of Public Roads, the Office of Technical Services and the Maritime Administration, those other Bureaus for so long a time in the past having functioned so publicly in the performance of tasks so vastly different from those which the Patent Office undertakes and accomplishes. As a matter of fact there is just one small area in which the concern of the Patent Office is the same as those of Standards, Maritime, Weather, Public Roads and Coast and Geodetic and this relates to the storage and retrieval of technical information, the Patent Office having a relatively small unit charged with the duty of developing ways and means for mechanically accomplishing the ever increasing labor of determining novelty of invention by searching the prior art. The Patent Office and the Bureau of Standards have worked closely together in attempting to solve the many problems involved in efforts to utilize the computer in this work. Other than in this area, however, there is no identity of specific direction of effort by the Patent Office and the other Bureaus of the Department of Commerce.

In spite of these circumstances, however, an officer of the Department, having a rank below that of the Secretary but superior to that of the Commissioner of Patents, has had vested in him the right to approve or disapprove "*** regulations established by the Commissioner of Patents in accordance with Section 6 of Title 35 of the United States Code for the conduct of proceedings in the Patent Office."

Thus, the Secretary of Commerce made effective, as of July 30, 1962, the following order:

ASSISTANT SECRETARY OF COMMERCE FOR SCIENCE AND TECHNOLOGY

Delegation Relating to Certain Patent Matters

"Pursuant to Authority of Reorganization Plan No. 5 of 1950, 64 Stat. 1263, as amended, there is hereby delegated to the Assistant Secretary of Commerce for Science and Technology, and he is authorized to perform the following functions:

"A. The approval of regulations established by the Commissioner of Patents in accordance with Section 6 of Title 35 of the United States Code for the conduct of proceedings in the Patent Office.

"B. The certification in accordance with Section 266 of Title 35 of the United States Code of the use or likely use in the public interest of an invention for which a patent is being applied.

Effective date: July 30, 1962.

LUTHER H. HODGES, Secretary of Commerce."

Section 6 of Title 35 of the United States Code is as follows: PAR. 6, DUTIES OF COMMISSIONER

"The Commissioner, under the direction of the Secretary of Commerce, 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. He may subject to the approval of the Secretary of Commerce, establish regulations, not inconsistent with law, the cont of proceedings in the Patent Office." July 19, 1, 66 Stat. 793.

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"As a result of this grant of authority to one of the politically appointed higher ranking officers of the Commerce Department of certain of the prerogatives of the Commissioner of Patents, under the authority of that ill considered and destructive document known as Reorganization Plan Number 5, the Assistant Secretary of Commerce for Science and Technology has become the immediate superior of the Commissioner insofar as "regulations" are concerned, the Secretary, of course, retaining the right to control other activities of the Commissioner. The Secretary or his appointee could, if he so chose, decide individual cases which arise in the Patent Office since Reorganization Plan Number 5 reads, in part, as follows:

"SECTION 1. Transfer of functions to the Secretary (a) Except as otherwise provided in subsection (b) of this section, there are hereby transferred to the Secretary of Commerce all functions of all other officers of the Department of Commerce and all functions of all agencies and employees of such Department. (b) This section shall not apply to the functions vested by the Administrative Procedure Act (60 Stat. 237) in hearing examiners employed by the Department of Commerce, not to the functions of the Civil Aeronautics Board, of the Inland Waterways Corporation, or of the Advisory Board of the Inland Waterways Corporation."

"SECTION 2. Performance of functions of Secretary. The Secretary of Commerce may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by an agency or employee of the Department of Commerce of any function of the Secretary, including any function transferred to the Secretary by the provisions of the reorganization plan."

Reorganization Plan No. 5, purported to implement the recommendations of "The Commission on Organization of the Executive Branch of the Government" of which Herbert Hoover was Chairman, and was established by Public Law 109 of the 81st Congress. This Commission submitted 19 reports to the Congress, of which one was primarily concerned with the organization of the Department of Commerce. A few lines only were devoted to the Patent Office and its problems and no attempt was made to demonstrate that this office should remain in Commerce. That seems to have been taken for granted.

One of the reports of this Commission is entitled "The Independent Regulatory Commissions" and its opening paragraph reads as follows:

"The independent regulatory commission is a comparatively new feature of the Federal Government. It consists of a board or commission, not within an executive department and engaged in the regulation of some form of private activity. In this report, the Commission on Organization had confined itself to a discussion of the organization problems of the agencies, and does not deal with their quasi-judicial or quasi-legislative functions."

Federal Power Commission.

Interstate Commerce Commission.
Federal Power Commission.

Federal Trade Commission.

U.S. Maritime Commission.

Securities & Exchange Commission.
Federal Communications Commission.
Civil Aeronautics Board.

National Labor Relations Board.

These agencies, the commission stated, regulated:

* private activity in such significant fields as labor; transportation, whether by rail, truck, pipeline, ship or airplane; credit; banking; securities both on or off the stock exchanges; trade practices; communications including radio, television, telegraph and telephone; the developments, sale and distribution of electric power together with the financing of these and other enterprises."

In subsequent sentences the Commission added:

"The Commissions were created not only to provide for the orderly dispatch of complicated controversies by bodies deemed expert in their respective fields, but also to eliminate abuses that had crept in and, at the same time, to promote an adequate and healthy development of the activities subject to their control.

"To achieve adjudication of controversies the Commissions were freed of the necessity of following the niceties of court procedures, and their decisions were final, with only limited review by the courts."

In its "Concluding Report" the Commission made no specific reference to the position of the Patent Office and its place in the Executive branch of government although, in a chart which forms part of that report, the Patent Office is shown as one of ten bureaus of the Department of Commerce grouped together under the general heading "Industrial and Commercial Service."

The term "regulatory commission", strictly speaking, does not best describe the Patent Office, but it does perform quasi-judicial functions and certainly "regulates" the activities of those inventors who seek patents, and their backers. A straight and narrow path must be followed by the protection seeker from which deviation is not permitted, and this may be fairly called "regulation". But even if the Patent Office cannot be so described, its right to independence is not prejudiced; good management in the Executive Branch warranting its elevation to this rank. Now that the Congress is being asked to consider the patent "Reform" bill of the present Administration together with many other bills relating to the Patent Office and system which have been introduced by various important members of the Congress, a favorable opportunity has been presented. Even if complete liberation cannot be effected immediately, a favorable atmosphere for a later effort may be created. It may also be demonstrated, if an opportunity is provided, that the authority of the Assistant Secretary for Science and Technology to control the activities of the Commissioner is quite limited under the present order. Of course, the Secretary can enlarge this Assistant Secretary's authority if he chooses to do so but such a move would be in defiance of the reasoning which resulted in the crea tion of the office of Assistant Secretary for Science and Technology in the first instance. It will probably be appropriate to give some account of the administrative move which resulted in the creation of this position on the Commerce staff.

At the request of the then Secretary of Commerce, the Hon. Sinclair Weeks, the National Academy of Sciences appointed a committee to evaluate the funetions and operations of the Department of Commerce, the objectives being stated as follows:

"The National Academy of Sciences will establish an ad hoc committee of eminent scientists and engineers to evaluate the functions and operations of the Department of Commerce to insure that it is fulfilling its responsibilities in the interest of science and technological progress. The activity of said committee shall include, but is not restricted to, a study of all major elements (1) of the needs of science and industry for services of the type the Department should provide, (2) of new or improved means to enable the Department to effectively meet these needs, and (3) of improved methods of relating the Department's program on a continuing basis to dominant and changing needs of science and industry. The findings and recommendations of the ad hoc committee will be incorporated in a final report to the Secretary of Commerce."

The Committee appointed transmitted a 10-page report from which two paragraphs are copied, as follows:

"The scientific and technical areas that Standards, Patents, Weather, Maritime, Roads, Coast and Geodetic and Technical Services encompass are indeed wide, with little overlap or interplay. The operations of all areas, however, have much in common. They are the operations that scientists and engineers employ in creating new scientific and technical knowledge and applying it; and in evaluating, interpreting, and judging scientific and technical information. In carrying out the operations of these widely different areas, laboratory and office space and technical facilities are required. They differ in kind and in amount from one area to another, but have a commonness in that all provide the environment and the tools for creative scientists and engineers."

It is clear that the ad hoc committee of scientists was thinking of science and technology and not of legal decisions, court reviews and patent systems generally, both here and throughout the world. And yet it was the Assistant Secretary for Science and Technology who addressed committees of both House and Senate in support of the Administration bill for the Reform of the patent system and improved relations with other patent issuing countries. He argued at length against retention of our “interference" practice and advo

cated the adoption of a substitute procedure-basic patent law subjects which are hardly related to the subject of "science and technology" or to the consideration of "regulations" suggested by the Commissioner. What was his experience in this legal area? Was he acting within his grant of authority?

It is unprofitable, however, to argue this point since it is abundantly clear that the Secretary can delegate, because of the authority vested in him by Reorganization Plan Par. 5, to anybody below him in the Department of Commerce, all or any portion of the authority vested in the Commissioner of Patents by Section 6 of the Title 35 of the U.S. Code. This is not likely to happen to a really serious extent but it may happen and, if the Assistant Secretary was acting within the scope of authority granted him when he testified recently it has happened. Reform is desirable. The Commissioner is the one to discuss with the Congress the legal functions and needs of the Patent Office, and to propose plans for international cooperation in both patent and trademark matters rather than persons not legally trained with less knowledge of and experience with patents, although of higher rank.

One Secretary of Commerce, the Hon. Sinclair Weeks, was more than willing to restore to the Commissioner of Patents the exclusive right to perform, without interference from above, his statutory duties although he was unwilling to support a proposal that the Patent Office be made an independent agency. Thus, he supported before the Bureau of the Budget a proposed bill to be submitted to the Congress which read, in part, as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that Section 3 of Title 35 of the United States code is amended by adding at the end thereof the following: "The Secretary of Commerce may authorize only the Commissioner of Patents to superintend or perform all duties required by law respecting the granting and issuing of patents and the registration of trademarks. Performance of the functions of examining applications for patent by officers and employees of the Patent Office, of considering appeals under Section 134 of this Title by the Board of Appeals, and of adjudicating questions of priority under Section 135 of this Title by the Board of Patent Interferences, shall not be reviewable by or subject to the control of the Secretary of Commerce. Likewise, the functions of passing upon applications for registration of trademarks, service marks, collective marks, and certification marks, and renewals thereof, applications for registration on the supplemental register provided by Section 1091 of Title 15. trademark opposition, cancellation, interference and concurrent use proceedings, and appeals under Section 1070 of Title 15, shall not be reviewable by or subject to the control of the Secretary of Commerce."

This proposed legislation was definitely intended to recognize by statute the authority of the Commissioner to perform without interference by the Secretary, those duties which all Commissioners had customarily and legally performed prior to the enactment of Reorganization Plan No. 5 in 1950. However, when presented to the Bureau of the Budget for endorsement at a hearing attended by the Secretary and the Commissioner, which was necessary, that Bureau held that, if it aided the Patent Office in this manner, it would be forced to act in favor of all other similarly situated bureaus of the Executive Branch and that would be too great a burden. So the effort failed although the reasoning of the Bureau of the Budget was far from persuasive, there being wide differences between the functions performed by the Patent Office and those of all other bureaus.

It may be asked, and no doubt will be asked if a bill proposing to establish the Patent Office as an independent agency should reach the Congress, how the Patent Office cost of operation will be affected by such a move, and whether or not its "housekeeping" capabilities may be affected. A careful study of these possibilities made some years ago, when S. 1862 (Senator O'Mahoney's bill) was pending, indicated that of the various functions performed by officers and employees of the Patent Office by far the greater number would not be rendered more difficult or expensive to perform in the event that the personnel and facilities of the Department of Commerce were no longer available, and that many functions could be performed more easily at less cost by an independent Patent Office. In fact, it was then found that one additional function only would of necessity be performed were the Patent Office to be separated from Commerce, i.e., it would be necessary to designate one or more employees

to make purchases, by contract, of supplies from industrial concerns. Much duplication of paperwork would be eliminated if the Patent Office could act independently of Commerce, and, generally speaking, it is believed that the well-staffed Patent Office could, now that it is in its own building, operate more efficiently and at less cost, in a housekeeping sense, than it will be able to do if it continues to act through employees of the Department of Commerce. The office of the Secretary of Commerce may be, and often is, occupied by several persons successively during the period of service of one Commissioner of Patents and, during the same time interval, a succession of persons may occupy each of the subordinate offices, the several positions of Assistant Secretary and that of General Counsel. Rarely do these Presidential appointees have more than superficial knowledge of the manner in which the Patent Office carries out its statutory duties but, as already made clear, at least one is given supervisory authority with respect to the Patent Office and is thus in position to disapprove constructive proposals of the Commissioner if, in his judgment, they should not be implemented. All possibility of such interference should be eliminated and, when the Congress has approved a plan of procedure proposed by the Commissioner, he should be allowed to carry it out without Departmental interference.

Actually, the slowly changing committees of Congress, the Appropriation and Judiciary Committees of House and Senate, with their permanent staffs and sometimes with agency scrutinizing special assistants, are in better position to evaluate the merits of proposals developed by the Commissioner of Patents than are the more rapidly shifting persons who occupy executive positions in the Commerce Department.

The question may be asked--why has not the Congress, which has created the nine Regulatory Agencies with their quasi-judicial and quasi-legislative functions and given them a measure of freedom from executive supervision, not similarly acted in the case of the Patent Office? In all probability its long history of service as a bureau of a Department of the Executive Branch, first in State, then in Interior and now in Commerce, in each of which it performed well, has not stimulated the concept that it could better its statutory functions if it were made independent of departmental regulation.

The Congress passed the legislation which created the Patent Office in 1836 and has since modified, from time to time, the statutes which control its operations as well as appropriating, year by year, the funds which it must have in order to function. The Congress is well aware of its great value to the nation and of the fact that it is manned by competent, diligent, personnel, makes its own rules, selects those who wish to practice before it, disciplines those who fail to adhere to its regulations, constantly endeavors without pressure from any superior authority to improve its techniques of examination and its administration and, in summary, is an unusually experienced body well able to manage its own affairs administratively, under Congressional supervision, and render appropriate decisions in individual cases, subject to adequate court review. It does not, in the writer's opinion, need Cabinet representation, in fact there is no information tending to show that it has within recent years been given Cabinet consideration except when Commissioner Coe was in office, as has been previously mentioned.

Summarizing briefly :

1. As early as the year 1812, it was suggested by a Congressional Committee that the "Patent establishment" might well be separated from the Department of State and as late as 1959, a bill to establish the Patent Office as an Inde pendent Agency was placed before the Senate. Between these dates, from time to time, other bills to the same effect were introduced and many individuals well acquainted with the manner in which the patent system functions and the Patent Office performs its statutory tasks have expressed the belief that it should be made independent of any Executive Department.

2. No knowledgeable group has expressed a contrary opinion except the sec tion of Patent Trademark and Copyright Law of the American Bar Association which, in 1957, voted its disapproval of the Bill, S. 1862, introduced by Senator O'Mahoney, and which, if it had become law, would have had the effect of establishing the Patent Office as an independent bureau.

3. The American Patent Law Association has not advocated either independence of the Patent Office or its continuance as a Bureau of the Department of Commerce.

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