Patent problem. In considering this legislation and specifically the safety standards which will result therefrom the committee was aware of the complexities which may arise from standards requiring the use of patented processes or equipment. The committee determined that rather than report a provision which would directly affect patent law it would be more appropriate to leave this problem to a case-by-case determination. In a particular case the courts can and no doubt will consider the various equities of the parties and the public prior to enjoining the infringement of a patent. If infringement of a patent is required to meet a Federal safety standard, the court may well limit the patentee to damages. See City of Milwaukee v. Activated Sludge, Inc., 69 F. 2d 577 (C.A. 7, 1934). RESEARCH, TESTING, AND TRAINING Section 106 of the reported bill requires the Secretary to conduct all research, testing, development, and training necessary to carry out this title including specifically (1) the collection of data for the purpose of determining the relationship between vehicle or equipment performance and (A) accidents and (B) deaths and personal injuries resulting from accidents; (2) procuring experimental vehicles and equipment whether by negotiation or otherwise; and (3) selling or otherwise disposing of test vehicles and equipment. The Secretary is further authorized to conduct any of this research, testing, development, or training by making grants to State, interstate agencies, and nonprofit institutions. This section requires the Secretary to undertake a broad-scale research, testing, development, and training program for the purpose of acquiring information and knowledge necessary to relate directly motor vehicle and equipment performance characteristics to accidents involving vehicles and the resultant deaths and injuries. Testimony established the necessity to distinguish between accidents and the injuries and deaths which result from accidents. This difference has been described in terms of a "first collision" and a "second collision." Two of the principal goals sought by this legislation are (1) to reduce 21 the number of accidents through improvement in vehicle and equipment performance and (2) to minimize the consequences of the impact of a driver or passenger in a vehicle with the interior of the vehicle or with some other object in the case of ejection from the vehicle as the result of an accident. The Secretary is directed to obtain experimental and other vehicles and equipment for research and testing purposes. He is given considerable latitude in this regard and he may obtain experimental vehicles or experimental equipment through negotiation, contract, direct grant, or in any other appropriate manner. The committee expects that the utilization of experimental vehicles and equipment would be well underway within a year from the date of enactment of this title and that in establishing and carrying out research and development programs, the Secretary will coordinate his actions to the fullest extent possible with appropriate State programs. The Secretary is authorized to sell or otherwise dispose of experimental vehicles and equipment after they have served the purpose for which they were acquired and to credit the proceeds to the current appropriations available for this title. Senate Passed Act Congressional Record-Senate June 24, 1966, 14257 Research, development, testing and evalua- pursuant to subsection (2), notwithstanding tion SEC. 106. (a) The Secretary, in cooperation with other departments and agencies of the Federal Government, is authorized to undertake appropriate research, development, testing and evaluation for motor vehicle safety and motor vehicle safety standards to accomplish the purposes of this Act and, in exercising this authority, may perform the following functions: (1) gathering or collecting existing data from any source for the purpose of determining the relationship between motor vehicle or motor vehicle equipment performance characteristics and (A) accidents involving motor vehicles, and (B) the occurrence of death or personal injury resulting from such accidents; (2) purchasing, notwithstanding any other provision of law, commercially available models of motor vehicles or items of motor vehicle equipment, and contracting for the fabrication of motor vehicle equipment, for research and testing purposes, including the testing of motor vehicles and motor vehicle equipment to accomplish the purposes of this Act even though such tests may damage or destroy the vehicles or equipment being tested; (3) selling or otherwise disposing of motor vehicles or motor vehicle equipment tested any other provision of law, and reimbursing the proceeds of such sale or disposal into the appropriation or fund current and available for the purpose of carrying out this title: Provided, That motor vehicles and motor equipment which have been rendered irreparably unsafe for use on the highways, by testing pursuant to subsection (2), shall be sold or disposed of in a manner insuring that they shall not be used on the highways or on vehicles for use on the highways; (4) performing or having performed all research. development, evaluation and ingathering and formation disseminating activities necessary and appropriate for motor vehicle safety and motor vehicle safety standards, and purchasing or acquiring equipment and facilities related thereto, or fabricating needed motor vehicle equipment to accomplish the purposes of this title, including (A) relating motor vehicle and motor vehicle equipment performance characteristics to motor vehicle safety; (B) determining the effects of wear and use of motor vehicles and motor vehicle equipment upon motor vehicle safety; (C) evaluating and developing methods and equipment for testing, inspecting, and determining safety of motor vehicles and motor vehicle equipment; (D) evaluating and developing methods and equipment for determining adequacy of motor vehicle safety standards, and compliance of motor vehicles with motor vehicle standards; and (E) developing appropriate motor vehicle safety standards; and (5) awarding grants to State or interstate agencies and nonprofit institutions for performance of activities authorized in this section. (b) The Secretary may, by means of grant or contract, design, construct and test operational passenger motor vehicles and items of motor vehicle equipment in demonstration quantities, embodying such features as the Secretary determines will assist in carrying out the purposes of this Act. Such vehicles or equipment are to serve as demonstrations for the development of safety features applicable to commercially manufactured motor vehicles or items of motor vehicle equipment, and for the development of Federal motor vehicle safety standards under section 103. Such demonstration vehicles or equipment shall not be sold or leased for private use. Such demonstration vehicles shall not be limited to traditional methods of automobile design, styling, testing, or production. (c) Whenever the Federal contribution for any research or development activity authorized by this Act encouraging motor vehicle safety is more than minimal, the Secretary shall include in any contract, grant, or other arrangement for such research or development activity, provisions effective to insure that all information, uses, processes, patents, and other developments resulting from that activity will be made freely and fully available to the general public. Nothing herein shall be construed to deprive the owner of any background patent of any right which he may have thereunder. Senate Debate Congressional Record-Senate Mr. COTTON. I Join the chairman of the committee, the Senator from Washington, in saying to the Senator from New Jersey, that this amendment makes a distinct improvement to the bill. Mr. President, other Senators may wish to speak later about the pending patent amendment. However, having offered the amendment on behalf of the Senator from Pennsylvania [Mr. SCOTT] and other Senators, I should like to make a brief statement. At the eleventh hour, the committee tacked onto the bill, as section 106(c), a restrictive patent provision which may curtail the safety research that is so vital to the campaign against traffic accidents and injuries. We opposed this amendment when it was offered in the committee. I am referring to the Senators who signed the minority views-namely, the Senator from New Hampshire [Mr. COTTON], the Senator from Kentucky [Mr. MORTON], the Senator from Pennsylvania [Mr. SCOTT), the Senator from Vermont [Mr. PROUTY), the Senator from Kansas [Mr. PEARSON], and the Senator from Colorado [Mr. DOMINICK). We shall oppose it on the floor, and feel so strongly about it that we have been impelled to file our individual views, despite our overall support of the bill. The subsection requires that any patent developed with the aid of a Federal contribution must be made freely and fully available to the general publicunless the Federal contribution is minimal-whatever that might mean. Plausible as this might seem at first glance, its real effect is liable to defeat the main purpose of the bill. Consider, for instance, the position of a firm or an individual with highly promising ideas for a safety development who needs additional research funds to complete his research and development work. Fed- 14238 eral assistance might hasten the work and bring the invention to public usefulness sooner. But the developer, who would lose all his rights to the invention under the committee amendment, could hardly afford to accept Federal aid. The public safety will be the clear loserand no one the gainer-under the amendment. Mr. LONG of Louisiana. Mr. President, will the Senator yield for question? Mr. COTTON. I yield. Mr. LONG of Louisiana. Under the approach advocated by the Senator from New Hampshire and his group, would it be possible to ask that public money be spent, then to develop the article with public funds, and then en able the inventor to secure a patent and charge $100 for a better seat belt that would cost only $10 to manufacture, or in some cases deny it to the public entirely? Mr. COTTON. I certainly do not believe so. The bill not only empowers but also enjoins the Secretary of Commerce to undertake safety research on his own. It is adequately safeguarded against the situation mentioned. I should like to finish my reference to the minority views; then I shall respond to the question of the Senator from Louisiana more fully. The fundamental aim of the bill is safety, yet the amendment throws a new, unforeseen roadblock in the path of safety research. Furthermore, the provision is another attempt at a patchwork, piecemeal approach to the problem of patent policies and federally supported research. Twice last year the Senate rejected similar provisions because it felt the problem should be dealt with through comprehensive, general legislation. Such a bill, S. 1809, has now been approved by the Senate Patents Subcommittee and is actively being marked up by the full Judiciary Committee. There is no justification for further complicating the matter by yet another separate amend ment. We believe section 106(c) should be deleted. The Senate should be given the opportunity to consider the comprehensive bill now before the Judiciary Committee. In the meantime, the public interest will be adequately and soundly protected because research authorized by this bill will be subject to the general Government patent policies prescribed by President Kennedy in 1963. Mr. President, I find a remarkable statement in the report of the committee, which I assume was prepared by the majority staff, with perhaps some suggestions from the minority staff. I refer to the bottom of page 14, the portion which discusses section 106(c), the section that our amendment seeks to delete: Section 106(c), by denying contractors exclusive rights in the performance of research activities where the Federal contribution is "more than minimal," will help curtail unnecessary industry pleas for Government financial support where the companies can do the research themselves. By doing their own research and securing patents on inventions which they discover, the companies in the auto industry can make substantial progress toward increasing auto safetywithout having to make substantial use of public funds. Now, knowing all the bright young men who serve on the staff of the Committee on Commerce, I cannot, for the life of me, imagine which member of the staff could possibly be the author of such an utterly assinine statement as that. Let me explain why I characterize it so strongly. The Committee on Commerce did not legislate in a vacuum. The Committee on Commerce heard evidence from the automobile industry. They heard evidence from all interested parties. They heard evidence from Mr. Nader. They heard evidence from the representatives of various associations and organizations, State, and National, interested in automobile safety. The committee knows exactly what the position of the industry is on various matters. There is one thing that is absolutely certain. The automobile industry in this country is one industry that does not and will not seek financial aid, and does not want financial aid or participation from the Government in designing, engineering, researching, and building automobiles. They are perfectly capable of financing their own engineering and designing, and their own safety devices. They displayed a good deal of feeling that they wanted to be permitted to do it. Now, instead of this provision protecting the Treasury from being raided by these poor, impoverished automobile manufacturers, the biggest manufacturing industry in this country, and to get the Government to help them make research and to help them engineer their cars, what does this provision do, as a matter of fact? It does not strike at the industry. It strikes at the Secretary of Commerce or a Secretary of Transportation, whichever may be charged with administering the program of automobile safety under the bill. It strikes at them for this reason: The Government needs the experience, needs the advice, needs the knowhow, and needs the facts from the automotive industry on safety devices if the Secretary is to be able and prepared to carry out the admonition in the bill that he shall engage in research and safety in automobile construction. Mr. PASTORE. Mr. President, will the Senator yield at that point? Mr. COTTON. I yield. Mr. PASTORE. Does not the Senator feel that way because these are the giants in our industry? Certainly I have no antipathy against the Big Three or Big Four. I am one of those who feels the bill should be passed exactly as re ported from committee. I shall go so far as to vote against the restoration of the criminal penalty because I do not think it necessary. We are trying to promote safety in the public interest. I believe this bill does that and does it effectively. I do not believe we ought to hit anybody over the head with a club. I do not think we ought to keep hitting them until the Big Four cry out "Uncle"-"Uncle Sam." This should not be a punitive attempt on our part. This should be a crusade to improve the quality character of the automobiles on the highways so that public safety will be promoted. But I say this to my distinguished friend. It is contemplated here that the Secretary of Commerce shall enter into certain contracts in order to conduct research and in order to promote safety. Public funds are to be expended for that purpose, and certainly those funds are going to be given to these automotive giants. Does not the Senator think that once industry makes a discovery with public money that it should be shared with all of the giants? It will not do me any good, or the Senator from Washington [Mr. MAGNUSON] any good, or the Senator from New Hampshire [Mr. COTTON] any good, once they make the discovery. But all the discoveries will be available to all automobile manufacturers rather than becoming exclusive to the one concern making a discovery and this is proper because the discovery was with advanced public money. I understand that industry is not opposed to this provision. Mr. COTTON. If the Senator had waited until I had completed a few more sentences I would have emphasized, as I am emphasizing, that he is 100 percent right. They are not opposed to it. The automobile industry, I am informed and I believe every member of the committee, I am informed-do not give a hoot about whether this provision remains in the bill or not because it is their policy and they are well equipped to do their own designing, engineering, and building of cars. What I was about to emphasize was the fact that when the Secretary, who is administering this safety program, comes around to seek the cooperation-if he has a suggestion, perhaps, on how the structure of an automobile may be strengthened to protect the occupants, or a suggestion as to some device for safety, and he wants to have the expertise of the automotive builders and manufacturers of parts or any others in exploring this possibility, they will not dare to help him. Why? I do not know what the word "minimal" means, but the moment they enter into any program whatsoever with the Secretary of Commerce they must forego any patent rights and whatever they might develop themselves they would have to turn over to the world at large. That is not the way businessmen work when they are putting investments into developing devices. That is why I say with respect to this particular paragraph in the bill, I am surprised that the Secretary of Commerce has not been lobbying against it because it handicaps him. It is not going to affect the major carmakers at all but it is going to make it infinitely more difficult and more expensive-not less expensive as this statement in the report indicates-more expensive to the Federal Government. The Federal Government will probably, as a result, not through intentional boycotting by the industry, but as a result of industries' desire to develop their own 14239 engineering, spend more funds and not less on research. (At this point, Mr. PROXMIRE assumed the chair.) Mr. LONG of Louisiana. Mr. President, will the Senator yield? Mr. COTTON. I yield to the Senator from Louisiana. Mr. LONG of Louisiana. Is the Senator aware of the fact that we have had testimony from all of these agencies, the Atomic Energy Commission and others, which are not permitted to grant private patents on their research, to the effect that they never had the problem of finding enough contractors to do the research for them? The problem has been that they did not have enough contracts to go around. Can the Senator explain to me why the Secretary ought to permit under his contract on highway automobile safety a result wherein a contractor would be guaranteed a profit on the research, but could be in a position to charge perhaps $100 for a $15 seat belt, or even deny the public completely the benefit for that which the public paid? Mr. COTTON. Yes, I can explain that to the distinguished Senator in a very few words. This whole bill, page after page after page, and the President's message— |