In the case of equipment for which patent application is made, arrangements for the commercial production should be such as to permit the widest possible number of appropriate and interested concerns to submit proposals for production and distribution of the equipment.

Selection of manufacturers and distributors shall be made so as to assure the widest distribution at the most reasonable price.

Any profits or royalties received by the grantee from the sale of equipment shall be used for purposes agreed upon by the Foundation and the grantee.

That is the condition we set up in those grants.

Mr. GORDON. Grants to a private contractor?

Dr. WATERMAN. One is to a university. One, I think, is to a scientific society; but they are all to organizations that have high competence in devising experiments of this sort, whether they are teachers or research people in physics.

Mr. GORDON. On page 2 of your contract provision D(b), it states that the Government can get scientific information only when it is already copyrighted or it is planned to do so.

Suppose that a contractor wants to keep it a secret and not copyright it. There is no provision making it mandatory to deliver to the Government technical knowledge and data acquired with Government funds, is there?

Dr. WATERMAN. I'm not sure just what you're referring to. As a general policy

Mr. GORDON. Well, this is what it says:

** With respect to the subject data now or hereafter covered by copyright and not originated in the performance of this contract, such license shall be only to the extent that the contractor

That is section D(b) of the contract. I have it right here in front of me.

Dr. WATERMAN.

This is one of our contracts?

Mr. RUTTENBERG. Which contract is this, sir?

Mr. GORDON. This is NSF-C.

Mr. RUTTENBERG. There is a number after the "C", I believe.

Mr. GORDON. There is no number.

Mr. RUTTENBERG. Just a sample form?

Mr. GORDON. Just a sample form.

Mr. RUTTENBERG. D(2)?

Mr. GORDON. There are no numbers. "Rights to data," article D, section (b).

Dr. WATERMAN. I think counsel, Mr. Ruttenberg, could answer this question.

Mr. RUTTENBERG. Are you talking about the right to reproduce now, is that the heading?

Mr. GORDON. This says rights to data, article D. This is what you supplied me, and it says:

The contractor agrees to and does hereby grant to the Government, and to its officers, agents, and employees acting within the scope of their official duties, a royalty-free, nonexclusive and irrevocable license throughout the world for Government purposes to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others so to do, all subject data now or hereafter covered by copyright.

What does that mean?

Mr. RUTTENBERG. What you may have there is a contract that we have used in connection with the translation of scientific literature. I am not sure that that is one of our research contracts that you have.

Let me check one more here to see

Mr. GORDON. This, incidentally, concerns weather modification, a very important problem.

Mr. RUTTENBERG. I do not see that clause in the contract before me. Could I take a look at it?

Dr. WATERMAN. If we could indentify the passage perhaps we could answer you better.

Mr. GORDON. Dr. Waterman, in the interest of time, could you supply the answer to this question for the record?

Mr. RUTTENBERG. Yes, indeed.

Mr. GORDON. The provision states that the Government gets data only when it is copyrighted or it is planned to copyright it.

Mr. RUTTENBERG. I think the answer to that may be that it was in the draft and was not in the final executed contract. I do not know.

(Following is information subsequently supplied by Mr. Ruttenberg:)

EXHIBIT VII

"RIGHTS TO DATA" ARTICLE IN NATIONAL SCIENCE FOUNDATION CONTRACTS

The language in question appears in section (b) of the "Rights of Data" article of the two most recent contracts for support of basic research entered into with profitmaking organizations by the National Science Foundation. Section (b) states that, in the event any of the "subject data" produced under the contract is covered by a copyright, the Government will receive a royalty-free, nonexclusive and irrevocable license throughout the world for Government purposes, to publish translate, reproduce, deliver, perform, dispose of, and to authorize others to so do, all such material. Section (a) of the "Rights to Data" article defines "subject data" as all data specified to be delivered under the contract, whether or not copyrighted.

Article 1 of each of the two contracts in question, entitled "Scope of Work," specifically provides for the collection of data by the contractor and requires that all such data be submitted to the Naitonal Science Foundation. Whether or not it is copyrighted, therefore, the Government receives data developed under the contracts. Section (b) of the "Rights to Data" article is designed to provide further protection to the Government with respect to information produced under the contracts and is not intended in any way to lessen the amount of information received.

The two contracts in question are for support of research in the field of weather modification. Legislation enacted by the Congress in 1958 authorizing the Foundation to initiate and support a program of study, research and evaluation in the field of weather modification specifically provides:

"The Director of the Foundation may obtain by regulation, subpena, or otherwise such information in the form of testimony, books, records, or other writings, may require the keeping of and furnishing such reports and records, and may make such inspections of the books, records, and other writings and premises or property of any person or persons as may be deemed necessary or appropriate by him to carry out the provisions of such paragraph (9), but this authority shall not be exercised if adequate and authoritative data are available from any Federal agency" [42 U.S.C. 1861, 1872a (f) (1)].

In addition, subsection 4 of 42 U.S.C. 1872a (f) states:

"Information contained in any statement, report, record, or other document furnished pursuant to this subsection shall be available for public inspection, except (A) information authorized or required by statute to be withheld and (B) information classified in accordance with laws to protect the national security. The foregoing sentence shall not be interpreted to authorize or require the publication, divulging, or disclosure of any information described in section 1905 of title 18 of the United States Code, except that the Director may disclose information described in such section 1905, furnished pursuant to this subsection, whenever he determines that the withholding thereof would be contrary to the purposes of this section and section 3(a) (9) of this Act."

49646-60- -13

It is clear, therefore, that, in connection with the activities of the Foundation in the field of weather modification research, any data improperly withheld can be obtained by the Foundation through appropriate legal measures.

Mr. GORDON. Suppose the contractor wants to keep it a secret and not copyright it, does that mean we do not get the information? Mr. RUTTENBERG. We can check that and let you know.

Mr. GORDON. How do you know if any inventions or patents result from your grants or contracts or how do you keep yourself informed about the number and kind of discoveries resulting from the grants and contracts, if it is not in the contract itself?

Mr. RUTTENBERG. May I answer that?

Each contract that we execute for support of research has a provision which says that the contractor must notify the Foundation within a reasonable time of any application for a patent.

In addition, the grantee is supposed to notify the Foundation about any patents received as a result of research work sponsored by the Foundation.

In other words, both the contract and the grant have a provision requiring notification.

Mr. GORDON. When did you put that provision in? It was not in your contracts a year ago, was it?

Mr. RUTTENBERG. I believe it has been in there all the time.

Mr. GORDON. Has it been in there all the time?

Mr. RUTTENBERG. Yes, I'm quite certain we have had that from the beginning.

Dr. WATERMAN. You understand, of course, in the case of these basic research grants we make there are almost a negligible number where you can expect to get patents. We have been told about some of those cases. If we insisted on a strong patent clause, this would be rather offensive to many research workers. They are not trying for it, and we would rather not get their attention on it either, because they are after fundamental knowledge and not some invention.

Mr. GORDON. Well, how about knowledge resulting in inventions? How about knowledge acquired as the result of a contract? Dr. WATERMAN. Those cannot be patented, as I understand it. We do want knowledge to be published, as I said earlier, and everyone concerned wants that done. Then if it is published anyone who wants to make an invention from it can see it.

Mr. GORDON. What we are interested in really is having the knowledge delivered to the Government so it could be diffused throughout our society very rapidly.

Now, in the sample contracts that you supplied me there is nothing that says you have got to be supplied with data. All it says is "We give you the money," and that is all.

Dr. WATERMAN. Well, as I said before

Mr. GORDON. Apparently you depend on faith in your contractor or grantee that he would deliver it to you.

Dr. WATERMAN. Here you have a situation where, as I said before, the man wants to publish at the earliest possible date. He makes his living by the knowledge he gets published, and the recognition he gets.

The university wants it to be published because their reputation, too, depends on their output.

We want it published because we have the same feeling about it, and we have an additional feeling you just mentioned. Anything valuable done under public funds should be published. I do not know the figures, but in the vast majority of cases there is at least one research paper published during a grant, very often more than one. In addition we have a final report on the nature of the work, and we published lists of our grants, so that if anyone wants to inform himself he can from that. Now, with everybody concerned wanting to publish, you have, it seems, a situation where it is unnecessary to require this, especially when some results, just because of the nature of basic research, do not pan out. In that case, for example, if a mistake has been made in the person's judgment, there is no need to publish because there is nothing valuable in it. In other words, under our present system anything valuable is published.

Mr. GORDON. Wouldn't that be valuable even if it does not pan out so that others will not go down the same road?

Dr. WATERMAN. Yes; that type of value is always taken into account. This is published. If a negative result is valuable this is published because that is important.

Mr. GORDON. What is the statutory authority for the present policy of the National Science Foundation?

Dr. WATERMAN. As I said in my statement, section 12 of the act; it is a broad statement.

Mr. GORDON. Do you conceive of situations where the acquisition of the patents by the Government would be in the public interest, as in weather control?

Dr. WATERMAN. I cannot claim to be a specialist in patent affairs. In my point of view the important consideration is simply this: That if any discovery is made of the patentable variety, the important thing is, especially if public funds are used, that this be brought out and utilized by the public, otherwise it does not mean anything.

So my cardinal principle is: anything that is useful developed by public money ought to be developed and available to the public for use. Mr. GORDON. Yes.

Dr. WATERMAN. That is the essential thing.

Now, the question of who has title gets into complications for which the best evidence is the extended debate over this which has occurred over the years, and I cannot claim to be a specialist in that.

I do think the important thing in the situation should be to see that the device is actually developed at the earliest possible date, and put into use so that the public can have it at, of course, a reasonable price and with reasonable return to the inventor or the organization.

Mr. GORDON. Well, by taking title you would be putting it in the public domain.

Dr. WATERMAN. Well, here again, as I say, taking title is not enough unless it is actually developed and put to use, made available.

Mr. GORDON. You think you should-you think you have to give title to somebody else?

Dr. WATERMAN. Title is involved in this arrangement.

Mr. GORDON. Are you saying that you had to give the title to somebody else, that is, a patent monopoly?

Dr. WATERMAN. No.

Mr. GORDON. In order to get it developed?

Dr. WATERMAN. I say I am not an authority on that. I say in my opinion if there is a device which is useful, and especially with public funds, then it should be developed at the earliest date, and be made available to the public at a reasonable price. That is where I stop. As to who takes title I am not an expert on that, but I do think the cardinal principle is just that, to get it out.

If the Government can take title and develop it and put it to general use, that answers my question.

If private enterprise can do the same thing at a reasonable price that, too, answers my question, and I am not specialist enough to know what, in general, would be the right way to do it.

I suspect that the best plan would be to adopt the principle that I have stated, and then have each agency have the authority to do one or the other in the particular case, because sometimes the particular case would go one way and sometimes another. But that is only my personal opinion.

Mr. GORDON. Would you say merely the receipt by the Government of a royalty-free, nonexclusive license to use an invention for governmental purposes, without considering whether, perhaps, an invention or discovery could be of sufficient importance, such as the control of weather, for example, that an application for a patent should be made for the benefit of the Government?

Do you think it is in the public interest merely to take a nonexclusive

license without considering other factors? Wouldn't you say it

would be in the interest of the Government to take title in that case to such an important development as the control of weather?

Dr. WATERMAN. This would depend a great deal on circumstances. As I say I do not see how one can answer this question in the general

case.

For example, suppose in the process of basic research on weather modification it develops that in order to get on with the research a particular kind of instrument is proposed, designed, and produced just to study some particular phase of research.

One might be to count the number of nuclei, as we know them, in a cloud-nuclei on which there might be condensation.

That is a highly specialized field. At the present time, it is only of use in respect to research in what causes precipitation in the clouds.. The average householder would have no possible use for it. The average corporation would have no use for it either. It is only useful at the time for that particular piece of research.

Well, in that case the advantage to the public, would seem to me, to be very low to have this out in the market. It is only a very special kind of research which requires it, and only a special number of people, so there is no big sale.

Now, that is a special case where, it seems to me, in the best interests of the public you want to put this in private hands, so that it could be made available to the few that need it, and the Government would want to back that.

On the other hand, suppose we got further along with weather modification and developed an instrument which could be used generally by the Weather Bureau, say, to help them in forecasting precipitation or influencing precipitation. That would be a matter of