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H. Hume Mathews
George W. Price
Robert S. Sanborn Staff Vice President
Patent Department AMF Incorporated
International Paper Company White Plains, New York
New York, New York Carl B. Pritchard, Jr.
Elwood J. Schaffer President
Patent ('ounsel Scottdale Machine, Foundry and
American Smelting and Refining Construction Co.
Company Scottdale, Pennsylvania
New York, New York Charles A. Prudell
Walter L. Schlegel, Jr. General Patent Attorney
Assistant Secretary & Chief Patent McGraw-Edisou Company
Attorney Elgin, Illinois
Amsted Industries Incorporated Dr. Leonard T, Prusak
Chicago, Illinois General Patent Counsel
Richard L. Schmalz Johnson & Johuson
General Patent Counsel New Brunswick, New Jersey
Westvaco Corporation Robert P. Redner
New York, New York Vice President
George S. Schwind General Filters, Inc.
Patent (ounsel Novi, Michigan
Crane ('o. Allan R. Redrow
New York, New York Patent (ounsel
Robert L. Shafter Norton Company
Counsel Worcester, Massachusetts
Copyrights & Trademarks John V. Regan
Xerox Corporation Staff Vice President
Stamford, Connecticut Patent Operations
Joseph L. Sharon R(A Corporation
Patent Counsel Princeton, New Jersey
Otis Elevator Company (. Cornell Remsen
New York, New York General Patent Counsel
Melvin Sharp International Telephone and
Group Patent ('ounsel Telegraph Corporation
Texas Instruments Incorporated Sew York, New York
Dallas, Texas (harles F. Renz
John R. Shipman Assistant General Patent Counsel Director of International Patent Westinghouse Electric Corporation Operations Churchill, Pittsburgh, Pennsylvania International Business Machines John M. Richman
Corporation Vice President and General Counsel
Armonk, New York Kraftco Corporation
John L. Shortley Glenview, Illinois
General Patent (ounsel Robert H. Robinson
Massey-Ferguson Limited Patent Counsel
Detroit, Michigan ESB Incorporated
John F. Sieberth l'hiladelphia, Pennsylvania
Associate Patent Counsel Stephen A. Roen
Baton Rouge, Louisiana
Certain-teed Products Corporation Patent Counsel
Valley Forge, Pennsylvania Addressograph Multigraph Corporation Leroy F. Skubic ('leveland, Ohio
President Frank C. Rote
The Paltier Corporation
John L. Snaido
Patents and Licensing
William D. Soltow, Jr.
Theodore Van Meter
Chief Patent & Tradeniark counsel
Mr. BRENNAN. Mr. Chairman, the final witness in this series of hearings is Mr. Milton Weissman.
Senator Hart. Mr. Weissman. You are a patient man.
Mr. BRENNAN. Mr. Weissman, you have a rather lengthy prepared statement and I think it will accommodate the hearing if we place it in the record.
Senator Hart. That is because he is an author and an editor.
Mr. BRENNAN. It would accommodate the subcommittee considerably if you would have it printed in full in the record and then focus all of your testimony on the five issues that are included in the hearing.
Senator Hart. It will be printed in full.
Mr. WEISSMAN. Senator Hart, I will try to concentrate on the matters that really haven't been discussed too much.
STATEMENT OF MILTON WEISSMAN, PRIMARY EXAMINER,
U.S. PATENT OFFICE
Mr. WEISSMAN. By way of introduction, my name is Milton Weissman. I am a primary examiner in the U.S. Patent Office. I have close to 29 years of experience in patent examination and over 2 years of experience in patent classification and retrieval systems. I am also the editor-in-chief of the journal of the Patent Office Society, to which I was appointed in April of 1967. Before that I was appointed as the assistant editor in February of 1963, so I have over 10 years of experience, of editorial experience, in patent-related matters.
Now I think I want to make clear that the opinions expressed in the prepared statement are fully my own, and they don't represent and I don't want them to be judged as representing or having been adopted by any organization of which I am a member.
Senator Hart. Fine.
Mr. WEISSMan. Now, the first section of the prepared statement is entitled, “Patent Invalidity: A Crisis for the United States Patent System."
Almost all recent dicussion, either written or oral, dealing with the subject of the invalidity of patents is based on the premise, either stated expressly or implied, that the courts are applying a standard of patentability which is far too strict. Now it is high time indeed that the opposite side of the coin be closely scrutinized. The conduct of those responsible for the issuance of patents should be questioned, and this is true regardless of whether or not one agrees that the courts are applying a too strict standard of patentability.
Now, do the officials of the Patent Office really care about the validity of the patents which are issued from their agency, as long as the production goals which they set for the patent examiners concerning the disposal of patent applications are met? The official position of the Patent Office is that they do desire the issuance of patents of the highest possible validity. But, in view of their actual conduct concerning production goals, this position must be viewed as at least open to question. As long as the officials of the Patent Office demand greater production of disposals each year, even though the number of examiners remains about the same and the amount of prior art to be searched increases ominously each year, it is difficult indeed for anyone with an objective viewpoint to be convinced that they are paying anything more than lip service to the concept of the highest possible patent validity.
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Nor are the others involved in the issuance of invalid patents to be considered entirely blameless. Do patent attorneys and their clients, the inventors, really care anything about the validity of the patents issued to them, as long as they can obtain these patents (which may or may not be valid)? Here again all concerned take the position that they only want patents of the highest possible validity to be issued. But again, in view of their actual conduct in the prosecution of patent applications, their strict adherence to this viewpoint is open to question. Is it too much to ask, for examplethat they at least disclose to the Patent Office the best prior art of which they are aware? Then the examination process could be focused on the issue of whether or not patentable subject matter has been disclosed, in view of the examiner's and the applicant's best prior art, which is the best possible way to buttress the presumption of validity accorded to patents by statute.
Furthermore, the attitude of the patent bar toward any proposa for altering the present patent system, even though expressly designed to aid in the goal of having patents of greater validity issued by the Patent Office, can at best be described as merely lukewarm. Is it really too much to ask that they put aside self-interest at least to some extent, to pursue a goal of having patents of the highest possible validity issued by the Patent Office ?
Now, the Patent Office has always had a tremendous problem, i.e.. insufficient time in which to perform a proper examination of a patent application, without any solution therefor. I want to call attention to the following statement by Mr. Donald Brown, then vice president and patent counsel of Polaroid Corp., which appeared at pp. 266-267 of "Hearings before the Subcommittee on Patents. Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, 84th Congress, 1st Sess.," back in 1955. This is his statement.
We believe that the present shortage of Patent Office personnel makes it impossible for the examiners adequately to search the art if the work of the Office is to be kept on a reasonably current footing. For example, it is our common practice, even in fields in which we are reasonably expert, to search the art before introducing a new product commercially. These searches, which are usually limited to U.S. patents of the last 15 or 20 years, may average 4 to 5 days of one mans time. An exhaustive literature search, such as we make if we are charged with infringement of anothers patent, may run from 10 to 20 days of one man's time or even longer. As opposed to this, it is our under standing that the Patent Office's examiners on the average, can devote not more than one-half day to the preparation of each Office action. *** We do not believe that it is possible, even for a skilled examiner familiar with the art, to make an adequate search and to consider a new specification or a fairly complete amendment within a period of 3 or 4 hours. **. We feel that today much of the technical literature is not searched by the Patent Office examiners. We know that our own searches invariably develop references which we believe are closer than those developed by the Office.
Since at that time a patent application normally received three office actions, the last one being final, it received about 12 hours of