right, Senator-this year the Patent Office funding request was not presented individually as it traditionally has been; it was consolidated with the requests of the other units of the Science and Technology wing of the Department of Commerce and a single appropriation request for that group of five units was made. Which is to say, if this is projected into the future, that there probably cannot be said to exist such a thing as a Patent Office appropriation. This means that the purse control of the Patent Office is on a totally different basis than it historically has been. And when you consider the fact that the Office is under-as I have already indicated my experience confirms-the control of someone whose interests are not basically and primarily oriented to the Patent system but to other things, such as science and technology, this has rather interesting implications. I could easily substantiate in time, by examples, the fact that this inherent possibility is indeed a reality. It could become increasingly a problem.

Mr. Browne pointed to the strange dichotomy by which the Presidential appointee who heads the Patent Office is subject to review by the Judiciary Committee, whereas that person's superior, to whom he must indeed respond, and with those directives he must indeed comply, is subject to review by a totally different group. And it was rather interesting I thought, in this connection, that during the confirmation hearings of the incumbent Assistant Secretary for Science and Technology Senator Tunney pointed rather perceptively to the fact that, while the incumbent Assistant Secretary was to be highly commended on the grounds of scientific prowess, there was very little in the record to suggest any background of dealing effectively with administrative matters, legal and patent matters, and things of that sort. It is a matter of grave concern that an agency of over 2,700 people, and, as you have heard, over 1,100 professionals. should be subject to the influence of someone who has had relatively little occasion to become acquainted with the barest fundamentals of what is involved-either in terms of the specific functions or the management skills involved in that kind of an operation.

Now I do believe that the matter of improper or undue influence is not just confined to the last 2 years or so; it has, however, been very strikingly in evidence. I speak again to one of the three points you mentioned earlier. There was not, so far as I can recall, any situation directly involved in the terms which you used-and I can't recall them exactly Senator-in connection with picking out a particular application and dealing with it, as it were, out of turn. There was not that kind of a situation, but there was something that I think is not too different from it in basic principle. I can't particularize at this point because the specific matter is still pending, and under our law the facts relating to that situation must be preserved in confidence. But the fact of the matter is that the Commissioner was directed to follow a certain course of judicial action contrary to the determination that he and the general counsel agreed was sound. That seemed to me a bit much. By the same sign, I think

Senator HART. But as you indicated, it is almost inherent in the structure as we now have it, which to me argues persuasively for the desirability for an independent agency.

Mr. GOTTSCHALK. Precisely. There has been such an absence of specific knowledge about these things as to encourage bland acceptance of the generalized statements that this doesn't exist. I confirm to you in rather positive terms and very specifically that it does, and it is not new.

You will recall that Mr. Browne mentioned the name of Assistant Secretary Holloman yesterday-and that was back a few years, but there again the same basic structure existed. A good deal of influence was brought to bear.

Now at this point I think I should mention specifically that in my judgment the Administration bill, so far as the language of it is quoted in their statement, does not go far enough. Their proposal in essence was, as I understand it, that the Patent Office remain where it is, but that legislation be enacted to insure that the Patent Office would enjoy independence of the Department of Commerce with respect to its "adjudicatory function." Well, I submit that that is not enough, because that would leave the Patent Office subject to the influence of the Department of Commerce with respect to matters of general policy, legislation, treaty arrangements and the like-and it was indeed a matter within that general category with which I most associate the experience of some years ago to which Mr. Browne referred. So we can't look to that language as providing an adequate safeguard, even if for other reasons we were to accept the views of the administration that the Patent Office ought to stay put.

I agree with you, as I understand your position, Senator, that an independent agency is strongly indicated.

Senator HART. Commissioner, thank you very much. I think your testimony does bear strongly on the desirability of an independent agency because I think inherent in this structure will be the recurrence of both lack of continuity and the competing claims. Whereas with an independent office perhaps the tendency there and the criticism then would be that it would overstress the importance of patents and their role, but at least they would be preoccupied with patents. I am grateful that on such short notice you have been willing to come in and give us the benefit of your experience and opinion. Again, thank you.

Mr. BRENNAN. What is your position, Commissioner, on the proposed Office of Public Counsel?

Mr. GOTTSCHALK. I would say this, Mr. Brennan, it is a little difficult for me to answer as clearly as I should like for these reasons. I am clear that I would not be in favor of the public counsel functions as proposed in S. 1321. I think some limitation and refinement and sharper focusing would make that more effective. I am totally committed to the idea that some representation of the public interest, and some broadening of legal approach within the Patent Office, are necessary. It is a little difficult for me to speak to the adminstration bill because, as you must be aware, I don't know what it is. I know about the administration position only what we have been able to learn from the remarks of Mr. Kauper and Mr. Bakke. I have a strong feeling that there is a better likelihood by far that I would agree with those positions dealing with the public counsel than I would with those of S. 1321.

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I feel this, too. The Advisory Council which is provided for in S. 1321, and which has not been much discussed in the course of these hearings, seems to me potentially very important. I would strong favor such an arrangement concerning the public counsel as would make it possible for him-nay would require him-to provide effective input to the Advisory Council. I would not go so far as to say he ought to be constituted in any specific capacity such as executive. secretary or official birddog, but he ought to be the eyes and ears of that committee. It ought to be made clear by the legislation that he is to have complete access to any information within the Patent Office. I tend to shy away from any concept of the role of public counsel, however, which would get him too deeply involved in representing the interests of private parties.

I can't help but deal also with the matter of adversary proceedings to some extent because I think they and the role of public counsel are very closely related. I do feel that if adversary proceedings are initiated in any form, this is an area of activity which ought to be of special concern to the public counsel-not necessarily in the role of an advocate, or even as a participant, but from the standpoint of exercising close and continuing supervision to insure that that important-and for us new and untried-experience develops properly, to insure that the system is improved in the way that we would hope, from the adoption of such proceedings. Here again, the way in which he would perform what functions would have to be determined by what kind of adversary proceedings we adopt. May I speak to that issue very briefly?

Mr. BRENNAN. Yes, but please be brief, we are running a little late.

Mr. GOTTSCHALK. I appreciate that Mr. Brennan, and the opportunity to speak to the issues at all.

I would not favor the form of adversary proceedings that are set forth in S. 1321. I more incline to the administration's view, but with reservations. There are two basic routes which they propose. I feel that the first offers too little, for the reason expressed this morning by Mr. Clark, that is, that people will not come forward with prior art unless they are really confident that it will be applied properly. As to the second, I am afraid that this alternative provides too much, and that it would open up the continuing kind of litigation which has characterized the German opposition proceedings which we view with horror. I am not sure that the antitrust approach suggested by Mr. Kauper would be adequate to control this.

I do favor something more like the idea which had its genesis in the Patent Office proposal which was published some time ago. Mr. NASH. No questions.

Senator HART. Thank you. That last answer reminds us how tough it is to move from agreement on what generally is desirable to how in the world you get there.

Mr. GOTTSCHALK. Senator, it is actually again the same point we were making earlier; administration and implementation are interchangeable sometimes.

[Subsequently Mr. Gottschalk submitted the following letters with attachments. The attachments may be found in the committee files.] ARLINGTON, VA., September 18, 1973.

Senator PHILIP A. HART,

U.S. Senate,

Washington, D.C.

DEAR SENATOR HART: In the interest of clarification and completeness, I would like to supplement my testimony in connection with S. 1321 as follows:

FURTHER SUPPORT OF THE INDEPENDENT AGENCY CONCEPT

Attached is a copy of the relevant part of the book "The Patent Office" by Stacy V. Jones, who has covered this agency for the New York Times for over 20 years.

CONCERNING UNDUE INFLUENCE

My testimony, as well as Mr. Browne's, made the point that the Patent Office has been subject, over a long period, to undue or improper influence by the Department of Commerce. However, it was not my intention to suggest that such influence was exerted throughout such period.

On the contrary, and specifically, I would make it clear that at no time during my period of service in the Patent Office did Secretary Stans, Secretary Peterson, Assistant Secretaries for Science and Technology Tribus and Wakelin, or Assistant Secretary for Administration Jobe exert any such influence. These officials were in fact, very helpful, and did much to aid and support the Patent Office.

Further, it should be added that the directive from the acting assistant secretary referred to in my testimony, was not followed. With some difficulty, he was persuaded by General Counsel William N. Letson and myself that it should not be.

WHY I WAS SURPRISED

In my testimony, I indicated that Dr. Anker-Johnson's request for my resig. nation came as a "bolt from the blue". In that connection, the following additions to my testimony may be of intertest:

At the time of that request, she had been aboard for about three weeks. During that period she had virtually no contact with Patent Office personnel. Her orientation to Patent Office affairs was necessarily limited and superficial. She paid no visit to any Patent Office facilities, including those in the Commerce Department Building which I urged her to visit. The foregoing statements, in all essentials, apply also to the Secretary. He did not visit any Patent Office facilities; nor become acquainted with Patent Office personnel; nor discuss with me at any time any programs or problems of the Patent Office.

Right after the November 1972 election, all presidential appointees were required to submit proforma resignations. I promptly submitted such a resignation, but heard nothing concerning it until the middle of April 1973. It was then returned to me with a note of congratulations by Assistant Secretary for Administration Turner indicating that I would continue as Commisssioner. Three weeks later, Dr. Anker-Johnson requested my resignation.

Throughout my Patent Office service, I had every indication of solid support from:

The patent bar-as exemplified by letters from lawyers including the presidents of the Chicago, New York, Rochester and Philadelphia patent law associations. Industry-as exemplified by letters from companies large and small, and industry associations.

Superiors and associates-as exemplified by letters from Former Secretary Stans, Former General Counsel Letson, Former Assistant Secretary for Administration Jobe, and Assistant Attorney General Kauper. Patent Office employees-as exemplified by excerpts from employee organization publications and various communications from employees.

All indications were that I was ably and effectively representing this country internationally.

Letters from the heads of the German, British and Canadian patent offices reflect cordial and effective working relationships with virtually all of the industrially important and many of the developing countries. Because of their confidence in me, I was elected Chairman of ICIREPAT-an international patent body dealing with many basic and world-wide problems. At the recent Vienna Diplomatic Conference, I directed the U.S. negotiation of the Trademark Registration Treaty, which I signed on behalf of the United States. I also chaired several important sessions of the Plenary Committee at that Conference.

My relationships with other Government agencies were excellent, and in all cases represented significant improvement. This included the State Department, the Department of Justice (with which I established an ongoing program of cooperation in areas of mutual concern), and the Government Printing Office.

IMPROVEMENTS BY ADMINISTRATIVE ACTION

By way of emphasizing my testimony concerning the importance of administration, it should be noted that over the last two years virtually all aspects of Patent Office operations were substantially improved solely by administrative

means.

The nature and scope of such improvements are reflected by the enclosed : Representative press articles.

Partial list of improvements effected in the three month period August-November 1971.

Address to the American Patent Law Association on May 10, 1973.

Further, it should be added that the "audit report" mentioned in my testimony was not confined to criticism. It reported on, and praised, much that I accomplished. (Perhaps the Committee might wish to review this report as concerns not only my performance as Commissioner, but also the puzzling circumstances attending my forced resignation. The Commerce Department would no doubt make it readily available.)

THE PATENT BAR WANTS BETTER PATENTS

Congressman Owens, Judge Will and others from time to time, have charged that the patent bar is resistant to change, and also "opposed to making the Patent Office function effectively".

As I recall, it has also been suggested that, in trying to make the Patent Office more effective, I alienated or antagonized the patent bar. I do not believe this for a minute.

Patent lawyers, inventors, corporations and members of the general public have all repeatedly stressed to me the importance they attach to improving the quality and enhancing the validity of the patents issued by the Patent Office. This accords with my own observation, over many years, that the overwhelming proportion of those concerned with patent matters have been frustrated, rather than pleased, by shortcomings in the patent examining process.

Admittedly, the patent bar on the whole has been very conservative about change. Accordingly, it has fallen to others, of lesser skills and experience in patent matters, to develop proposals for change. It is therefore hardly surprising that such proposals have often been criticized and objected to by the bar. But this is a far cry from saying that the patent bar wants lower standards of patentability, easier issuance, or weaker patents. I am sure it does not.

Currently, I believe the patent bar is becoming increasingly interested in promoting improvement; this change of attitude has been reflected in the hearings on S. 1321.

"MECHANIZED" OR "PUSH-BUTTON" SEARCHING

The ability to classify, store and retrieve information by computer or similar means would contribute immeasurably to the efficiency of the patent examining process. Stacy Jones has called this a "Patent Commissioner's dream".

But despite a great deal of attention to such matters for many years, there has been little real progess; and the resultant disappointment can be readily understood