and it is an able message-reflects again and again the aim that there shall be cooperation between the Government and the automobile industry in working out and building safer automobiles. In the bill can be found the carrot method of incentive, and the admonition can also be found. This is the situation. After building up this bill for weeks and weeks and weeks with the devoted attention of the committee on both sides of the aisle and the able staff, all on the theory that we want to put everything possible into the bill which will advance the pooling of knowledge between the industry and the Government, and result in every possible, reasonable, safe improvement in automobiles, at the last minute the committee reversed itself and adopted the provision.

I would be the first to commend my friend from Louisiana who has, with great sincerity and dedication, fought the fight on this patent business between Government and industry through the years. I understand that the problem will be brought to a head in another bill shortly. But this bill is not the place for it. In this bill, under section 106(c) we raise the specter of an industry losing its exclusive rights of patent when it pools its knowledge with the Government. We make it more difficult for the workshop of the Secretary and the workshop of industry to cooperate fully to advance the cause of auto safety. Furthermore, it is pretty hard to see what is minimal and what is not.

I do not care what other companies the Senator refers to, the automotive industry has openly and without arrogance asserted again and again that it is perfectly capable of financing its own research. We are asking them to pool their efforts with the Government, then we write this thing in the bill which injects a serious element of doubt. If they are not entirely sincere in their desires, this gives them an excuse, if we please, to not put their cards on the table working with the Secretary. That is my an

swer.

Mr. LONG of Louisiana. Will the Senator concede as I gather from his reply-to strike this provision from the bill if he does not have the support of the automobile manufacturer?

Mr. COTTON. No, I do not believe they are interested in this. I want it stricken from the bill, because I believe it would impair the safety of the bill.

Mr. LONG of Louisiana. Congress has passed many laws. It is the rule rather than the exception that in dealing with public health and safety, as long as I

have been a Senator, and even before that, Congress has repeatedly insisted on putting provisions in its bills relating to health and safety to assure that the fruits of research will be freely available to all. For example, on Department of Agriculture legislation, TVA, the National Science Foundation, the Atomic Energy Commission, NASA, Helium Research Act, the Water Pollution Act, Water Resources Act, Solid Waste Disposal Act, it was the rule rather than the exception that in these areas of health and safety, the committees originating these bills have had a way of saying that the research programs would be made freely available to all.

Even the bill that is being suggested by the majority of the Subcommittee on Patents of the Judiciary Committee, headed by the Senator from Arkansas [Mr. MCCLELLAN], suggests that in this area they should not be private patents, except in exceptional cases. The whole record of legislation in regard to the fruits of Government-financed research has been that committees originating that kind of legislation have suggested what should be done with the fruits of that legislation.

In this instance, the manufacturers feel that this gives them no problem. As a practical matter with their own private research, paid for out of their own funds, the manufacturers make their research freely and fully available to one another, anyway. They take advantage of a situation, in a new model sometimes, on which there will be new devices, or something new to offer. The industry releases all kinds of permits to all competitors who are using the things developed. Thus, to a large extent, what has been developed, even with their private funds, is being made available to all— and I know that the Senator knows that to be the case.

Mr. HICKENLOOPER. Mr. President, will the Senator from New Hampshire yield?

Mr. COTTON. I should like to make one point first. One thing I should like to emphasize and impress upon my good friend from Louisiana is that when he

asks, do I have the support of the automobile industry, I should like to inform him that I am not representing the automobile industry in any way, shape, or manner. So far as I knew, the automobile industry did not care about this, whether it stays in the bill or not. Thus, I want to make that crystal clear to the Senator, that if he has any doubt about my being sustained by the automobile industry, I want to dissipate that doubt.

Mr. LONG of Louisiana. I am happy that we can understand that. I went to the trouble of inquiring of the automobile manufacturers concerning the amendment which I believe to be appropriate, and which I believe the majority on the committee believes to be appropriate. "Does this give you any problem?" The answer I got back was "No, it does not."

Mr. COTTON. I think probably that was the correct answer, but it may give the Government problems.

Mr. MAGNUSON. Mr. President, will the Senator from New Hampshire yield? Mr. COTTON. I am happy to yield to the Senator from Washington.

Mr. MAGNUSON. I was a little bit disturbed that the Senator jumped on some staff people about this language. It is true that the staff inserts the language but they do not always compose it. This language was placed in the bill at the request of two or three Senators on the committee. If the Senator wants me to produce anything further on this, I shall be glad to do so.

Mr. COTTON. I thank the Senator. Mr. MAGNUSON. Second, this is an amendment which was discussed-the Senator from New Hampshire is rightby the committee toward the end of the session. Finally, we agreed on adopting the amendment as written, and then we agreed that we would put statements on patents in the report, and we agreed to let those vitally interested in the committee at that time submit the language, and the staff did that.

Mr. COTTON. Mr. President, incidentally, let me take this opportunity to ask for the yeas and nays on the amendment.

The yeas and nays were ordered. Mr. HICKENLOOPER. Mr. President, will the Senator yield?

Mr. COTTON. I yield. Mr. HICKENLOOPER. As I understand, this is an automotive bill. As I understand also, and have understood for many years, the policy of the automotive industry or manufacturers has been that if they make a discovery of some kind, they try to use it on the first model, more as an advertising gadget, but that after that, all the rest of the companies may use it. That has been the general practice. So, as I see it, there is not the slightest need for the patent legislation that is proposed in this automotive bill. The practice has become so well established that I doubt whether any automobile company would break it. Therefore, I see no need for including such a proposal in the bill.

Going a step further, I wonder whether the Senator from New Hampshire would agree with me that such a proposal is probably not aimed at the automobile manufacturers, but is aimed at the whole philosophy of the protection of patent rights to the individual who makes something and who happens to have received the right to purchase from the Government some discarded material for some purpose. The Government may not contribute very much, but it will take over the patent and give its 14240 benefits to the public-in other words, destroy or strike at the very heart of patent protection in this country. Such an attempt has been made repeatedly in the past. I wonder if this proposal is not merely an attempt to come in by another door for that main, basic purpose.

Mr. COTTON. I thank the Senator from Iowa for his observation regarding cross-licensing in industry. I think it is highly pertinent as to what the amendment in the bill is aimed at.

I have too high a regard for the distinguished Senator from Louisiana [Mr. LONG], for whom I have the deepest respect, and for other Senators who may well be interested to try to analyze what they may be aiming at.

I merely wish to say that if this proposal is intended as an entering wedge in advance for the consideration of the bill which I assume and understand will be ultimately presented by the distinguished Senator from Arkansas [Mr. MCCLELLAN] in behalf of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, this is not the place for it.

I do not want to stir up any more debate on this point. I want to give up the floor. The only observation I want to make to my friend from Louisiana is with reference to his remark that in matters of health and safety this system of throwing up patent rights has been the policy. It has been my observation that the opposite is the fact.

When we are dealing with a product, when we are dealing with a commercial situation, it may be one thing, but I have a vivid recollection, and it is contained in our individual views in the report:

On June 29, 1965, by a vote of 59-to-36, the Senate adopted a Pastore motion to table LONG'S [Louisiana] amendment on patents developed in connection with the regional heart disease, cancer and stroke programs.

I have a quite clear recollection of that debate, and it is my understanding that it was not tabled necessarily on the

merits of the proposal of the distinguished Senator from Louisiana, but was tabled because it was prejudging, launching into a program in advance of a matter that was being thrashed out and which was to be reported by the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, charged with that duty.

It is my understanding that is precisely the situation today. Because of that fact, in the first place, and, in the second place, because, as the Senator from Iowa [Mr. HICKENLOOPER] has so well said, the policy of the industry makes it unnecessary, and, in the third place, because, if it has any effect at all, it will handicap the Secretary in running his own shop and getting information from suppliers and makers of parts in the various segments of the automobile industry, the provision has no place in the bill and endangers and detracts from the effectiveness of the whole purpose of the bill.

Mr LONG of Louisiana. Mr. President, will the Senator yield?

Mr. COTTON. I yield.

Mr. LONG of Louisiana. May I point out to the Senator from New Hampshire and ask him if it is not correct that the record of this Congress and the record of the two previous Congresses with respect to the patent policy has been this: Whenever a committee had brought forth a bill creating research and authorizing a research program, Congress has sustained that committee in what it has recommended in respect to patent rights?

When the Senator from Louisiana has sought to change the law or amend the law to require some agency to be more careful about giving away patent rights, the amendment has been tabled. That was done with respect to the Pastore motion and also the Dodd motion with respect to the National Aeronautics and Space Administration.

It has been true that for the last 18 years the Senate has consistently sustained what the committee said should be done with the fruits of the research authorized by that committee's research program.

Mr. COTTON. I thank the Senator. Mr. President, I am prepared to yield the floor.

The legislative clerk proceeded to call the roll.

Mr. MAGNUSON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SCOTT. Mr. President, I appreciate the fact that the distinguished Senator from Arkansas [Mr. MCCLELLAN], the distinguished Senator from New Hampshire [Mr. COTTON], the distinguished Senator from Kentucky [Mr. MORTON], and the distinguished Senator from Massachusetts [Mr. SALTONSTALL] have joined me in sponsoring this amendment.

My amendment is to delete a provision from the bill similar to other provisions which have been rejected by the Senate in earlier legislation—the so-called Long amendments on patents. On June 2, 1965, by a vote of 59 to 26, the Senate tabled the Long amendment on patents developed in connection with NASA contracts; and on June 29, 1965, by a vote of 55 to 36, the Senate agreed to a motion to table the Long amendment on patents developed in connection with regional heart disease, cancer, and stroke programs.

I invite the attention of the Senate to the statement in the committee report on 8. 3005 by the six Republican members of the committee in opposition to section 106(c) of the bill. This provision was tacked onto the bill at the last minute Tuesday, without previous opportunity for mature consideration, and after much time had been expended in preparing the bill for report under circumstances which would enable us to be unanimous, or as nearly so as possible, in bringing out very strong motor vehicle safety bill.

My amendment would delete section 106 (c), under this provision, the Federal Government would acquire ownership of inventions emerging from the motor vehicle safety research authorized by this bill in all cases where its financial share of the funding of such research is more than minimal.

Mr. President, I am bound to say that none of us know what "minimal" means. It has the usual built-in caveat, for me at least, that an uncertain word which is not necessarily or fully a word of art may be construed by one agency administrator one way and by another another; so that no genuine guideline is

I think that section 106(c) should be deleted for three reasons:

First, it is ill-timed, since legislation to establish a Government patent policy in the disposition of rights under its research and development contracts is in a stage of advanced consideration by the Senate Judiciary Committee.

I attended a session of the full Committee on the Judiciary this morning. The general overall patents policy bill, S. 1809, was under discussion. All members of the committee desire to dispose of S. 1809 at the earliest practicable moment.

To continue the futile attempt to prescribe Government patent policy in a piecemeal fashion would not only run counter to the intent of those of us on the Judiciary Committee who have been considering this measure over quite a long period of time, but would also essentially run counter in many ways to the Kennedy policy, to which I shall refer later, which is presently the Federal policy absent specific congressional declaration.

Second, this section is unnecessary as an interim measure until such time that patent policy legislation is adopted into law. There is, at present, an equitable, logical, and workable policy currently in effect under the "President's Statement on Government Patent Policy," promulgated in October 1963.

Mr. President, I ask unanimous consent that a memorandum of the late President Kennedy, under date of October 10, 1983, be printed in the RECORD at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. SCOTT. The memorandum to which I just referred establishes Government policy pending the enactment of general patent policy legislation.

I read a part of one paragraph: This statement of policy seeks to protect the public interest by encouraging the Government to acquire the principal rights to inventions in situations where the nature of the work to be undertaken or the Government's past investment in the field of work favors full public access to resulting inventions. On the other hand, the policy recognizes that the public interest might also be served by according exclusive commercial rights to the contractor in situations where the contractor has an established non-gov. ernmental commercial position and where there is greater likelihood that the invention would be worked and put into civilian use 14241 than would be the case if the invention were made more freely available.

My third reason for urging deletion of section 106(c) is that it may serve as a limitation to effective, coordinated re

search between the Government and prívate industry with resultant damage to the public welfare.

I believe that this is not the proper time, nor is the bill under consideration the appropriate vehicle for discussing the merits of a suitable patent policy under Government research and development contracts. The Senate has recognized that this subject involves extremely complex considerations which justify detailed analysis prior to the adoption of any Government patent policy. A number of bills have been introduced in the Senate on this subject. They are receiving detailed, careful consideration by the Judiciary Committee. Extensive hearings were held last year. 8. 1809, a bill on Government patent policy has been reported out of the Subcommittee on Patents, Trademarks, and Copyrights on which I serve as ranking minority member, to the full Judiciary Committee. It is not only logical but appropriate that the Senate await the advice of this committee. Let us then deal with this subpect in the normal, proper, procedural manner considering Government patent policy in its full context, not in a piecemeal manner such as is the case with section 106(c) of this bill.

I believe that section 106(c) can severely inhibit full and beneficial research activity in behalf of automotive safety. The purpose of this important legislation is to establish a national safety program as well as safety standards for motor vehicles in interstate commerce to reduce traffic accidents and the resultant harm occasioned by such accidents. This purpose should be complemented by the best research facilities and talent available. Any inhibition thereto can serve to obstruct this goal. This being so, I do not believe that this would serve the public welfare.

Notwithstanding this practical limitation to the propriety of section 106 (c) its adoption would, in my opinion, be inequitable. The wording of this section, in effect, would deny to a research contractor in virtually all cases, proprietary rights to inventions resulting from work performed in the area of automotive safety.

Section 106(c) is misleading. It appears to qualify the right of the Government under all circumstances to deny proprietary rights to a contractor. This is to occur through inclusion of the word "minimal" as a limitation upon exercise of this right by the Government. Webster Dictionary definition of the word "minimal" is: "Constituted as a minim; hence, or at least attainable, pos

The

sible, usual, etc.” and the application of the word "minimal" in this case would be "a very minute, a jot." I see that the word "tittle" has been left out, but the next edition of the dictionary will take care of that omission.

It defies my imagination to conceive of a situation thereunder where the contractor's contribution would enable him to obtain proprietary rights under this section.

Adoption of section 106(c) would be a step backward in developing a reasonable and proper approach to the disposition of patent rights under Government research and development contracts. We are asked to return to a piecemeal ap`proach to establish such a policy through the adoption of amendments offered to unrelated legislation. We are asked to ignore the deliberations of the appropriate committee of the Senate which is presently considering such legislation. We are asked to ignore the President's statement on Government patent policy in spite of the extensive study and analysis which led to its promulgation and to its proven value in the negotiation of research and development contracts. To do so is completely unwarranted.

Mr. President, deletion of section 106 (c) would be consistent with action taken twice by the Senate last year on similar proposals. Retention of the provision, on the other hand, would greatly complicate the work of the Government itself in solving the problem of what to do if future patent policy contemplated in legislation pending in the Judiciary Committee should differ in major import from the policy established in section 106(c).

For all these reasons, I express the hope that my amendment will meet with the approval of the Senate.

I thank the Senator for yielding.
EXHIBIT 1

MEMORANDUM FROM THE PRESIDENT ADDRESSED
TO THE HEADS OF THE EXECUTIVE DEPART-
MENTS AND AGENCIES ON GOVERNMENT PAT-
ENT POLICY WITH STATEMENT ATTACHED-
OCTOBER 10, 1963

Over the years, through Executive and Legislative actions, a variety of practices has developed within the Executive Branch affect ing the disposition of rights to inventions made under contracts with outside organizations. It is not feasible to have complete uniformity of practice throughout the Government in view of the differing missions and statutory responsibilities of the several departments and agencies engaged in research and development. Nevertheless, there is need for greater consistency in agency practices in order to further the governmental and public interests in promoting the utilization of Federally financed inventions and

Attached for your guidance is a statement of government patent policy, which I have approved, identifying common objectives and criteria and setting forth the minimum rights that government agencies should acquire with regard to inventions made under their grants and contracts. This statement of policy seeks to protect the public interest by encouraging the Government to acquire the principal rights to inventions in situations where the nature of the work to be undertaken or the Government's past investment in the field of work favors full public access to resulting inventions. On the other hand, the policy recognizes that the public interest might also be served by according exclusive commercial rights to the contractor in situations where the contractor has an established non-governmental commercial position and where there is greater likelihood that the invention would be worked and put into civilian use than would be the case if the invention were made more freely

available.

Wherever the contractor retains more than a non-exclusive license, the policy would guard against failure to practice the invention by requiring that the contractor take effective steps within three years after the patent issues to bring the invention to the point of practical application or to make it available for licensing on reasonable terms.

The Government would also have the right to insist on the granting of a license to others to the extent that the invention is required for public use by governmental regulations or to fulfill a health need, irrespective of the purpose of the contract.

The attached statement of policy will be reviewed after a reasonable period of trial in the light of the facts and experience accumulated. Accordingly, there should be continuing efforts to monitor, record, and evaluate the practices of the agencies pursuant to the policy guidelines.

This memorandum and the statement of

policy shall be published in the Federal
Register.
STATEMENT

OF GOVERNMENT PATENT POLICY
Basic considerations

A. The government expends large sums for the conduct of research and development which results in a considerable number of inventions and discoveries.

B. The inventions in scientific and technological fields resulting from work performed under government contracts constitute a valuable national resource.