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and it is an able message reflects again have been a Senator, and even before and again the aim that there shall be co that, Congress has repeatedly insisted on operation between the Government and putting provisions in its bills relating to the automobile industry in working out health and safety to assure that the fruits and building safer automobiles. In the of research will be freely available to all. bill can be found the carrot method of in For example, on Department of Agricentive, and the admonition can also be culture legislation, TVA, the National found. This is the situation. After Science Foundation, the Atomic Energy building up this bil for weeks and weeks Commission, NASA, Helium Research and weeks with the devoted attention of Act, the Water Pollution Act, Water Re. the committee on both sides of the aisle sources Act, Solid Waste Disposal Act, it and the able staff, all on the theory that was the rule rather than the exception we want to put everything possible into that in these areas of health and safety. the bill which will advance the pooling the committees originating these bulls of knowledge between the industry and have had a way of saying that the rethe Government, and result in every pos search programs would be made freely sible, reasonable, safe improvement in available to all. automobiles, at the last minute the com Even the bill that is being suggested by mittee reversed itself and adopted the the majority of the Subcommittee on provision.
Patents of the Judiciary Committee, I would be the first to commend my headed by the Senator from Arkansas friend from Louisiana who has, with (Mr. MCCLELLAN), suggests that in this great sincerity and dedication, fought area they should not be private patents, the fight on this patent business between except in exceptional cases. The whole Government and industry through the record of legislation in regard to the years. I understand that the problem fruits of Government-financed research will be brought to a head in another bill has been that committees originating shortly. But this bill is not the place for that kind of legislation have suggested it. In this bill, under section 106(c) what should be done with the fruits of we raise the specter of an industry los- that legislation. ing its exclusive rights of patent when it In this instance, the manufacturers pools its knowledge with the Govern- feel that this gives them no problem. As ment. We make it more difficult for the & practical matter with their own priworkshop of the Secretary and the work- vate research, paid for out of their own shop of industry to cooperate fully to ad- funds, the manufacturers make their revance the cause of auto safety. Further- search freely and fully available to one more, it is pretty hard to see what is another, anyway. They take advantage minimal and what is not.
of a situation, in a new model sometimes, I do not care what other companies the on which there will be new devices, or Senator refers to, the automotive indus- something new to offer. The industry try has openly and without arrogance releases all kinds of permits to all comasserted again and again that it is per- petitors who are using the things develfectly capable of financing its own re- oped. Thus, to a large extent, what has search. We are asking them to pool been developed, even with their private their efforts with the Government, then funds, is being made available to allwe write this thing in the bill which in- and I know that the Senator knows that jects a serious element of doubt. If they to be the case. are not entirely sincere in their desires,
Mr. HICKENLOOPER. Mr. President, this gives them an excuse, if we please,
e' will the Senator from New Hampshire to not put their cards on the table work
yield? ing with the Secretary. That is my an
Mr. COTTON. I should Uke to make swer.
one point first. One thing I should like Mr. LONG of Louisiana. Will the to emphasize and impress upon my good Senator concede as I gather from his
friend from Louisiana is that when he reply-to strike this provision from the
asks, do I have the support of the autobill if he does not have the support of the
mobile industry, I should like to inform automobile manufacturer?
him that I am not representing the autoMr. COTTON. No. I do not believe mobile industry in any way, shape, or they are interested in this. I want it
manner. So far as I knew, the automo
man stricken from the bul because I believe blle Industry did not care about this, it would impair the safety of the bui.
whether it stays in the bill or not. Thus, Mr. LONG of Louisiana. Congress has I want to make that crystal clear to the passed many laws. It is the rule rather Senator, that if he has any doubt about than the exception that in dealing with my being sustained by the automobile inpublic health and safety, as long as I dustry, I want to dissipate that doubt.
Mr. LONG of Louisiana. I am happy Going a step further, I wonder wheththat we can understand that. I went to er the Senator from New Hampshire the trouble of inquiring of the automo- would agree with me that such a probile manufacturers concerning the posal is probably not aimed at the autoamendment which I believe to be appro- mobile manufacturers, but is aimed at priate, and which I believe the majority the whole philosophy of the protection on the committee believes to be appro- of patent rights to the individual who priate. “Does this give you any prob- makes something and who happens to lem?” The answer I got back was “No, have received the right to purchase from it does not."
the Government some discarded mateMr. COTTON. I think probably that rial for some purpose. The Government was the correct answer, but it may give may not contribute very much, but it the Government problems.
will take over the patent and give its Mr. MAGNUSON. Mr. President, will benefits to the public in other words the Senator from New Hampshire yield?
destroy or strike at the very heart of Mr. COTTON. I am happy to yield to patent protection in this country. Such the Senator from Washington.
an attempt has been made repeatedly Mr. MAGNUSON. I was a Uttle bit in the past. I wonder if this proposal disturbed that the Senator jumped on is not merely an attempt to come in by some staff people about this language. another door for that main, basic pur. It is true that the staff inserts the language but they do not always compose it. Mr. COTTON. I thank the Senator This language was placed in the bill at from Iowa for his observation regarding the request of two or three Senators on cross-licensing in industry. I think it the committee. If the Senator wants me is highly pertinent as to what the amendto produce anything further on this, I ment in the bil is aimed at. shall be glad to do so.
I have too high & regard for the disMr. COTTON. I thank the Senator. tinguished Senator from Louisiana (Mr.
Mr. MAGNUSON. Second, this is an LONG), for whom I have the deepest reamendment which was discussed—the spect, and for other Senators who may Senator from New Hampshire is right, well be interested to try to analyze what by the committee toward the end of the they may be aiming at. session. Finally, we agreed on adopting I merely wish to say that if this prothe amendment as written, and then we posal is intended as an entering wedgo agreed that we would put statements on in advance for the consideration of the patents in the report, and we agreed to bill which I assume and understand will let those vitally interested in the com- be ultimately presented by the distinmittee at that time submit the language, guished Senator from Arkansas (Mr. and the stali did that.
MCCLELLAN) in behalf of the SubcommitMr. COTTON. Mr. President, inci tee on Patents, Trademarks, and copydentally, let me take this opportunity to rights of the Committee on the Judiask for the yeas and nays on the amend. ciary, this is not the place for it. ment.
I do not want to stir up any more The yeas and nays were ordered.
debate on this point. I want to give up Mr. HICKENLOOPER. Mr. Presi- the floor. The only observation I want dent, will the Senator yield?
to make to my friend from Louisiana is Mr. COTTON. I yield.
with reference to his remark that in matMr. HICKENLOOPER. As I under- ters of health and safety this system of stand, this is an automotive bill. As I throwing up patent rights has been the understand also, and have understood policy. It has been my observation that for many years, the policy of the auto- the opposite is the fact. motive industry or manufacturers has When we are dealing with a product, been that if they make a discovery of when we are dealing with a commercial some kind, they try to use it on the first situation, it may be one thing, but I havo model, more as an advertising gadget, & vivid recollection, and it is contained but that after that, all the rest of the in our individual views in the report: companies may use it. That has been on June 29, 1966, by a voto of 69-to-36, the general practice. So, as I see it, there tho Sonate adopted & Pastore motion to is not the slightest need for the patent tablo LONG's (Louisiana) amendment on legislation that is proposed in this auto- patents developed in connection with the motive bill. The practice has become so regional heart disease, cancer and stroko well established that I doubt whether programs. any automobile company would break it. I have a quite clear recollection of Therefore, I see no need for including that debate, and it is my understanding such a proposal in the bill.
that it was not tabled necessarily on the
merits of the proposal of the distin- The PRESIDING OFFICER. The guished Senator from Louisiana, but was clerk will call the roll. tabled because it was prejudging, launch- The legislative clerk proceeded to call ing into a program in advance of a mat. the roll. ter that was being thrashed out and Mr. MAGNUSON. Mr. President, I which was to be reported by the Sub- ask unanimous consent that the order committee on Patents, Trademarks, and for the quorum call be rescinded. Copyrights of the Committee on the
The PRESIDING OFFICER. Without Judiciary, charged with that duty.
objection, it is so ordered. It is my understanding that is pre
Mr. SCOTT. Mr. President, I apprecisely the situation today. Because of
ciate the fact that the distinguished Senthat fact, in the first place, and, in the
ator from Arkansas (Mr. MCCLELLAN), second place, because, as the Senator
the distinguished Senator from New from Iowa (Mr. HICKENLOOPER) has so
Hampshire (Mr. COTTON), the distinwell said, the policy of the industry
guished Senator from Kentucky (Mr. makes it unnecessary, and, in the third
MORTON), and the distinguished Senator place, because, 1 It has any effect at all,
from Massachusetts (Mr. SALTONSTALL) it will handicap the Secretary in run
have joined me in sponsoring this ning his own shop and getting information from suppliers and makers of parts
My amendment is to delete a provision in the various segments of the automo
from the bill similar to other provisions bile industry, the provision has no place
which have been rejected by the Senate in the bill and endangers and detracts
in earlier legislation—the so-called Long from the effectiveness of the whole pur
amendments on patents. On Jume 2, pose of the bill.
1965, by & vote of 59 to 26, the Senate Mr LONG of Louisiana. Mr. Presi.
tabled the Long amendment on patents dent, will the Senator yield?
developed in connection with NASA conMr. COTTON. I yield.
tracts; and on June 29, 1965, by a vote of Mr. LONG of Louisiana. May I point 55 to 36, the Senate agreed to a motion out to the Senator from New Hamp- to table the Long amendment on patents shire and ask him if it is not correct that developed in connection with regional the record of this Congress and the rec- heart disease, cancer, and stroke proord of the two previous Congresses with grams. respect to the patent policy has been I invite the attention of the Senate to this: Whenever a committee had brought
the statement in the committee report on forth a bill creating research and au S. 3005 by the six Republican members thorizing a research program, Congress of the committee in opposition to section has sustained that committee in what it
106(c) of the bill. This provision was has recommended in respect to patent tacked onto the bill at the last minute rights?
Tuesday, without previous opportunity When the Senator from Louisiana has for mature consideration, and after much sought to change the law or amend the time had been expended in preparing the law to require some agency to be more bull for report under circumstances which careful about giving away patent rights,
would enable us to be unanimous, or as the amendment has been tabled. That
nearly so as possible, in bringing out a was done with respect to the Pastore
very strong motor vehicle safety bill. motion and also the Dodd motion with My amendment would delete section respect to the National Aeronautics and
106(c), under this provision, the Federal Space Administration.
Government would acquire ownership of It has been true that for the last 18
inventions emerging from the motor years the Senate has consistently sus vehicle safety research authorized by this tained what the committee said should bill in all cases where its financial share be done with the fruits of the research of the funding of such research is more authorized by that committee's research than minimal. program.
Mr. President, I am bound to say that Mr. COTTON. I thank the Senator. none of us know what “minimal" means. Mr. President, I am prepared to yield It has the usual built-in caveat, for me the floor.
at least, that an uncertain word which The PRESIDING OFFICER. The is not necessarily or fully a word of art question is on agreeing to the amend may be construed by one agency adminment of the Senator from Pennsylvania istrator one way and by another an(Mr. SCOTT).
other; so that no genuine guideline is Mr. MAGNUSON. Mr. President, I really presented. suggest the absence of a quorum.
I think that section 106(c) should be deleted for three reasons:
First, it is W-timed, since legislation search between the Government and prito establish a Government patent policy vate industry with resultant damage to in the disposition of rights under its re- the public welfare. search and development contracts is in I believe that this is not the proper & stage of advanced consideration by the time, nor is the bill under consideration Senate Judiciary Committee.
the appropriate vehicle for discussing the I attended a session of the full com merits of a suitable patent policy under mittee on the Judiciary this morning. Government research and development The general overall patents policy bill, contracts. The Senate has recognized S. 1809, was under discussion. All mem that this subject involves extremely bers of the committee desire to dispose of complex considerations which justify deS. 1809 at the earliest practicable talled analysis prior to the adoption of moment.
any Government patent policy. A numTo continue the futile attempt to pre ber of bills have been introduced in the scribe Government patent policy in & Senate on this subject. They are repiecemeal fashion would not only run ceiving detailed, careful consideration by counter to the intent of those of us on the Judiciary Committee. Extensive the Judiciary Committee who have been hearings were held last year. 8. 1809, a considering this measure over quite & bill on Government patent policy has long period of time, but would also essen- been reported out of the Subcommittee Hally run counter in many ways to the on Patents, Trademarks, and Copyrights Kennedy policy, to which I shall refer on which I serve as ranking minority later, which is presently the Federal member, to the full Judiciary Committee. policy absent specific congressional dec It is not only logical but appropriate that laration.
the Senate await the advice of this comSecond, this section is unnecessary as mittee. Let us then deal with this suban interim measure until such time that pect in the normal, proper, procedural patent policy legislation is adopted into manner considering Government patent law. There is, at present, an equitable, policy in its full context, not in a piecelogical, and workable policy currently in meal manner such as is the case with effect under the “President's Statement section 106(c) of this bill. on Government Patent Policy," promul I believe that section 106(c) can gated in October 1963.
severely inhibit full and beneficial reMr. President, I ask unanimous con- search activity in behalf of automotive sent that a memorandum of the late safety. The purpose of this important President Kennedy, under date of Oco legislation is to establish a national tober 10, 1983, be printed in the RICORD safety program as well as safety standat the conclusion of my remarks. ards for motor vehicles in interstate com
The PRESIDING OFFICER. Without merce to reduce trafic accidents and the objection, it is so ordered.
resultant harm occasioned by such acci(See exhibit 1.)
dents. This purpose should be compleMr. SCOTT. The memorandum to
mented by the best research facilities and which I just referred establishes Gov. talent available. Any inhibition thereto ernment policy pending the enactment of
can serve to obstruct this goal. This begeneral patent policy legislation.
ing so, I do not believe that this would I read a part of one paragraph:
serve the public welfare. This statement of policy seeks to protect
Notwithstanding this practical limitho public interest by encouraging the Gov.
tation to the propriety of section 106(c) ornment to acquire the principal rights to its adoption would, in my opinion, be ininventions in situations where the nature of equitable. The wording of this section, the work to be undertaken or the Govern. in effect, would deny to a research conmont's past investment in tho geld of work tractor in virtually all cases, proprietary lavors full public access to resulting invenrights to inventions resulting from work tions. On the other hand, the policy recog. performed in the area of automotive also that the public interest might also be Borvod by according oxclusive commercial
Section 106(c) is misleading. It aprights to tho contractor in s tuations where tho contractor has an establishod non-gov.
• pears to qualify the right of the Governernmental commercial Dorition and where ment under all aircumstances to deny there is greater likelihood that the inyontion proprietary rights to a contractor. This
would bo worked and put into civilian use is to occur through inclusion of the word 14241 than would be the case if the invention were “minimal" as a limitation upon exercise mado more freely available.
of this right by the Government. The My third reason for urging deletion of Webster Dictionary definition of the section 106(C) is that it may serve as a word “minimal” is: "Constituted as & limitation to effective, coordinated re- minim; hence, or at least attainable, pos
sible, usual, etc.” and the application of to avoid dimculties caused by different apthe word “minimal" in this case would be proaches by the agencies when dealing with "a very minute, & jot.” I see that the the same class of organizations in compaword "uittle” has been left out, but the
rable patent situations. next edition of the dictionary will take
From the extensive and fruitful pational
discussions of government patent practices, care of that omission.
sigridcant common ground bas come into It defies my imagination to conceive of
view. First, a sngle presumption of ownera situation thereunder where the con
ship does not provide a satisfactory basis for tractor's contribution would enable him government-wide policy on the allocation of to obtain proprietary rights under this rights to inventions. Another common section.
ground of understanding to that the Govern. Adoption of section 106(c) would be &
mont bas a responsibilty to foster the fullest
exploitation of the inventions for the publio step backward in developing a reason
beneat. able and proper approach to the disposi- Attached for your guidance is a statement tion of patent rights under Covernment of government patent policy, which I havo research and development contracts. We approved, identifying common objectives and are asked to return to a piecemeal ap- criteria and setting forth the minimum proach to establish such a policy through rights that government agencies should acthe adoption of amendments odered to quire with regard to inventions made under
their grants and contracts. This statement unrelated legislation. We are asked to
of policy seeks to protect the public interost ignore the deliberations of the appropri
by ancouraging the Government to acquire ate committee of the Senate which is
the principal rights to invantions in situapresently considering such legislation. tions whero the nature of the work to bo We are asked to ignore the President's undertaken or the Government's past lovesto statement on Government patent policy ment in the fald of work favon full public in spite of the extensive study and analy Accons to resulting inventions. On the other sis which led to its promulgation and to
band, the policy recognised that the publio
interest might also be served by according its proven value in the negotiation of
oxclusive commercial rights to the contractor research and development contracts. TO
in situations where the contractor bas an do so is completely unwarranted.
established non-governmental commercial Mr. President, deletion of section 106 position and whero there is greater Well(c) would be consistent with action taken hood that the invention would be worked twice by the Senate last year on similar and put into civilan use than would be the proposals. Retention of the provision, caso I the invention were made more freely on the other hand, would greatly com
avallable, plicate the work of the Government itself
Wherever the contractor retains more
than a non-exclusive Ucense, the policy in solving the problem of what to do it
would guard against fallure to practice tho future patent policy contemplated in leg. invention by requiring that the contractor islation pending in the Judiciary Com- take effective stops within three years after mittee should differ in major import the patent issues to bring the invention to from the policy established in section the point of practical application or to make 106(c).
it available for licensing on roasonable terms. For all these reasons, I express the
The Government would also bave the right hope that my amendment will meet with
to insist on the granting of a license to others
to the extent that the invention is required the approval of the Senate.
for public use by governmental regulations I thank the Senator for yielding. or to fulfill a bealth neod, irrespective of the EXHIRIT 1
purpose of the contract. MEMORANDUM FROM THE PRESIDENT ADDRESSED
The attached statement of policy will be
reviewed after a reasonable period of trial TO THE HEADS OF THS BECUTIVE DEPART
in the Ught of the facts and experience acMENTS AND AGENCIES ON GOVERNMENT PAT
cumulated. Accordingly, there shouid bo ENT POLICY WITH STATEMENT ATTACHED
continuing aforts to monitor, rocord, and OCTOBER 10, 1963
evaluate the practices of the agencies purOver the years, through Executive and Leg
suant to the policy guidelines. islative actions, & variety of practices bas do
This memorandum and the statement of veloped within the Executive Branch affocto
policy shall be published in the Federal ing the disposition of rights to inventions
Register. made under contracts with outside organizations. It is not feasible to have complete
STATEMENT OF GOVERNMENT PATENT POLICY uniformity of practice throughout the Gov
Basic considerations ornment in view of the disering missions and A. The government expends large sums for statutory responsibuities of the several de the conduct of research and development partments and agencies engaged in research which results in a considerable number of and development. Nevertheless, there is inventions and discoveries. good for greater consistency in agency prac. B. The inventions in scientific and techno ticos in order to furthor the governmental logical Delds resulting from work performed and public interests in promoting the utili. under government contracts constitute a zation of Foderally inancod inventions and valuable national resource.