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Statements, supplemental statements, and letters-Continued
The New York Patent Law Association.
Watson; David L. Ladd; Edward J. Brenner; William E. Schuyler,
Jr.; Robert Gottschalk.
707 708 709 711 713
S. 1321-FOR THE GENERAL REFORM OF THE PATENT LAWS, TITLE 35 OF THE UNITED STATES CODE, AND FOR OTHER PURPOSES
TUESDAY, SEPTEMBER 11, 1973
U. S. SENATE, SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS
OF THE COMMITTEE ON THE JUDICIARY
Washington, D.C. The committee met at 10 a.m., in room 1114, Dirksen Senate Office Building, Senator Philip A. Hart, presiding.
Present: Senator Hart (presiding).
.Also present: Thomas C. Brennan, chief counsel, Dennis Unkovic, assistant counsel, Subcommittee on Patents, Trademarks and Copyrights, Bernard Nash, assistant counsel, Antitrust and Monopoly Subcommittee.
Senator Hart. The committee will be in order.
Permit me first a brief opening statement. Then we will proceed to take testimony.
Beginning with the 1966 Report of the President's Commission on the Patent System, Congress undertook serious consideration of reforming our system for issuing patents. Many hours of testimony, and dozens of filed statements, have been received by this subcommittee since then on a number of bills designed to accomplish this important and difficult task.
Under the able chairmanship of the distinguished senior Senator from Arkansas, John McClellan, the subcommittee reported a solid reform bill in October 1971. Unfortunately, patent reform got no further because of the effort to tie antitrust exemptions for patent licensing agreements to patent reform.
No system designed in 1836 can remain viable under the economic and technological conditions of 1973. And that is why the patent system is under attack. Unless it is reformed to create procedures, safeguards, and mechanisms to weed out the bad patents before issuance—whether fraudulent or not—and to assure the expeditious and impartial issuance of patents that meet the constitutional and statutory standards, the patent system will die of atrophy.
I am pleased to chair what I expect to be the final hearings on patent reform before the subcommittee marks up a bill next month.
The bill under consideration, S. 1321, represents a distillation of prior reform bills, including the bulk of the 1971 subcommittee bill, the Presidential Commission recommendations, suggestions for reform made over the past years, and some European approaches. Although complicated, it is designed simply to raise the quality and
reliability of the U.S. patent by overhauling the system for issuing patents to promote the progress of science and the useful arts.
The hearings will concentrate on the five areas which either contain new reform proposals or have not been recently explored by the subcommittee. I would expect, however, that the subcommittee will consider all of its prior work and the views of the administration, if they should be forthcoming, in reporting out a reform bill.
Three days of hearings were originally scheduled for this Tuesday, Thursday, and Friday. As some of you know, the full Committee on the Judiciary has scheduled this Thursday to continue confirmation hearings on Mr. Ruckleshaus as Deputy Attorney General. Our Thursday session, accordingly, has been rescheduled for Wednesday. I apologize for the inconvenience. I am grateful that you were able and willing to cooperate on this problem.
Mr. BRENNAN. Mr. Chairman, on behalf of Senator McClellan, I would like to read a short statement. The chairman is otherwise occupied with his duties as chairman of the Appropriations Committee, and cannot attend this series of hearings. He has asked me to read the following statement:
The subcommittee today is commencing what is presently contemplated as the final series of hearings on legislation for the general revision of title 35.
There are significant differences of opinion concerning what reforms of the patent system are necessary and prudent. These differences have been flected in the previous deliberations and actions of this subcommittee, and will undoubtedly occur in the further processing of this legislation. I have in the past supported, and will continue to support, such measures as are required to modernize the American patent system. I have in the past opposed. and will continue to oppose, measures which would reduce the incentives of the patent system, or make the system so cumbersome that it is less effective in achieving the objectives for which it was created.
A major factor contributing to the inconclusive nature of the prior action of the subcommittee has been the failure of the executive branch to formulate an administration position on patent law revision. On September 21, 1972, the Minority Leader and I addressed a joint letter to the President urging him to direct further efforts to produce an administration bill, including a statutory clarification of the rights of patent owners with respect to the licensing of their inventions.
Substantial progress has been made. I understand there is now an administration position on the issues being considered in these hearings. I have been assured that the executive branch will expeditiously complete the maining work on the preparation of an administration bill. With the cooperation of the executive branch, the bar, and other interested parties, it should be possible for the subcommittee to report a patent revisions bill prior to the adjournment of the current session of the Congress,
Mr. Chairman, I ask unanimous consent to have printed at this point in the record the letter of the chairman and the minority leader to the President of the United States.
Senator HART. It will be printed. [The letter referred to follows:]
SEPTEMBER 21, 1972. The PRESIDENT, The White House, Washington, D.C.
MY DEAR MR. PRESIDENT: The 92nd Congress will be adjourning shortlr without acting on the legislation to modernize the American Patent System. As you indicated in the Message on Science and Technology “a strong and reliable patent system is important to technological progress and industrial strength". We concur in your judgment that "we must make the most effectire
possible use of the incentives which are provided by our patent system", if the private sector is to be adequately encouraged to invest funds and talent in the application of technology to the achievement of national goals.
We welcome the efforts currently being made to promote more effective utilization of American technology as the competition in world trade becomes ever more intense. But the testimony before our Subcommittee suggests that invention and innovation is being retarded by inadequate incentives, and the uncertainty which has developed concerning certain aspects of our patent ystem.
Because of the complexity and technical nature of patent legislation, it is difficult under the most favorable of circumstances to secure action in the Congress. Our task has been rendered significantly more burdensome by the inability of the executive branch to formulate a single position on the patent revision legislation, including a proposed statutory clarification of the rights of patent owners with respect to the licensing of their inventions. The absence of an Administration position has been exploited by some who wish to weaken and discredit the patent system.
We, therefore, request that you direct the appropriate departments and agencies of the executive branch to undertake renewed efforts to formulate an Administration position on patent law revision. We would hope that it will be possible for you to communicate this position upon the convening of the 33rd ('ongress. With kindest personal regards. Respectfully yours,
John L. McCLELLAN,
Chairman. Hugh Scott,
Ranking Republican Member. Mr. BRENNAN. I further request permission, Mr. Chairman, to have printed at this point in the record the notice of this hearing and the text of S. 1321.
Senator HART. So ordered.
(From the Congressional Record, Senate, July 31, 1973)
NOTICE OF HEARINGS ON PATENT LAW REVISION Mr. UCCLELLAN. Mr. President, as chairman of the Subcommittee on Patents, Trademarks, and Copy rights, I desire to announce that the subcommittee bas decided to reopen the hearings on the general revision of the patent law, title 35.
The hearings are being reopened for the purpose of receiving testimony on various important new issues, such as are contained in S. 1321. The hearings will include the following subjects :
First, modification of patent examination proceedings to provide public adrersary hearings;
Second, the creation of the Office of Public Counsel ;
Third, establishment of a system for deferred examination of patent applications ;
Fourth. revision of the patent fee schedule, including the establishment of maintenance fees; and
Fifth, administrative restructuring of the Patent Office, including the pro[***d establishment of the Patent Office as an independent agency.
The hearings will be held on September 11, 13, and 14 in room 1114 of the Dirksen Senate Office Building and will commence each day at 10 a.m.
Anyone desiring to testify during the hearings should contact the office of the subcommittee at 202–225-2268.
(S. 1321, 93d Cong. 1st Sess.) A BILL For the general reform and revision of the patent laws, title 35 of the
United States Code, and for other purposes Be it inacted by the Senate and House of Representatives of the United States of America in ('ongress assembled, That, in accordance with the authority granted by article 1, section 8. clause 8 of the United States Constitution, entitled "Patents", is hereby amended in its entirety to read as follows:
1 100 261
"TITLE 35—PATENTS "Part
"I. Patent Office .. “II. Patentability of inventions and grants of patents "III. Patents and infringement of patents
"PART I-PATENT OFFICE "Chapter “1. Establishment, officers, functions “2. Proceedings in the Patent Office "3. Practice before the Patent Office “4. Patent Office fees
1 21 31 41
"CHAPTER 1.-ESTABLISHMENT, OFFICERS, FUNCTIONS "Sec. "1. National patent policy. "2. Establishment and seal. “3. Commissioner and other officers. “4. Restrictions on officers and employees as to interest in patents. “5. Board of Appeals. “6. Library, classification of patents, public search facilities. "7. Certified copies of records. “8. Publications. “9. Annual report to Congress. “10. Advisory Council on the Patent System. "g 1. National patent policy
"It is hereby declared to be the national patent policy of the United States to promote the progress of science and useful arts, by granting inventors the privilege, for a limited time and subject to the provisions of this title and any other Act the Congress has or may hereafter enact, to exclude others from making, using, and selling new and useful inventions discovered by such inventors and fully disclosed to the public. This title shall be interpreted in light of this policy and of the constitutional purpose permitting Congress to enact a patent law, to assure that United States patents are of high quality and reliable. “8 2. Establishment and seal
"The Patent Office, at times referred to in this title as the 'Office', shall be an independent agency, where records, books, drawings, specifications, and other papers and things pertaining to patents and to trademark registrations shall be kept and preserved, except as otherwise provided by law. The Patent Office shall have a seal with which letters patent, certificates of trademark registration, and papers issued from the Office shall be authenticated. "8 3. Commissioner and other officers
“(a) There shall be a chief administrative officer of the Patent Office, the Commissioner of Patents, referred to in this title as the 'Commissioner'. The Commissioner shall be appointed by the President, by and with the advice and consent of the Senate, and he shall be compensated at the rate now or hereafter provided for level IV of the Executive Schedule pay rates (5 U.S.C. 5315). The Commissioner 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. The Commissioner is authorized to promulgate rules and regulations governing proceedings before the Patent Office; to define any and all terms used in this title in connection therewith; and otherwise to prescribe such further rules and regulations as may be necessary or proper for purposes of administration of the Patent Office.
“(b) There shall be a Deputy Commissioner of the Patent Office, who shall be appointed by the President, by and with the advice and consent of the Senate, and who shall be compensated at the rate now or hereafter provided for level V of the Executive Schedule pay rates (5 U.S.C. 5316). The Deputy Commissioner shall perform such functions as the Commissioner may assign or delegate and he shall act as Commissioner during the absence or disability of the Commissioner or in the event of a vacancy in the Office of Commissioner.