limiting its use for specific purposes. This liability shall apply whether or not the information was supplied or obtained pursuant to contract. Provided, however, that the United States shall not be liable under this section if such information has at any time been released by the owner thereof to others on a non-confidential basis or if such information is otherwise known to the public or the Government."

(b) The analysis of chapter 91 of title 28, United States Code, is amended by adding the following:

"1508. Misuse of Information."

SEC. 6. Every agency of the United States Government, including corporations owned or controlled by the United States Government, is hereby authorized in the performance of functions vested in the agency to acquire any of the following described property or any license or interest therein-copyrights, patents, applications for patents, and information and data in any form.

SEC. 7. Before an action against the United States has been instituted under subsection (a) or (b) of section 1498 of title 28, United States Code, or under section 1508 of title 28, United States Code, the head of an agency of the United States, including corporations owned or controlled by the United States Government, may settle or compromise, out of available funds, any claim that might be brought under said sections.

SEC. 8. (a) Section 2386 of title 10, United States Code, is repealed; and the analysis of chapter 141 of said title is amended by striking out the following: "2386. Copyrights, patents, designs, etc.; acquisition."

(b) The last paragraph of section 1491 of title 28, United States Code, is amended to read as follows:

"Except as regards actions brought under section 1498 of this title, nothing herein shall be construed to give the Court of Claims jurisdiction in suits against, or founded on actions of, the Tennessee Valley Authority, nor to amend or modify the provisions of the Tennessee Valley Authority Act of 1933, as amended, with respect to suits by or against the Authority."

(c) Section 183 of title 35, United States Code, is amended by striking out from the sixth sentence thereof the following: "in the Court of Claims or in the District Court of the United States for the district in which such claimant is a resident" and by striking out from the seventh sentence thereof the following: "in the Court of Claims".

(d) Subsection (b) of section 2273 of title 10, United States Code, is repealed; and subsection (a) of said section 2273 is amended by striking out "(a)".

(e) Section 7210 of title 10, United States Code, is repealed; and the analysis to chapter 631 of title 10, United States Code, is amended by striking out the following:

"7210. Purchase of patents, patent applications, and licenses."

(f) Section 606 of the Act of September 4, 1961 (P. L. 87-195; 75 Stat. 440) is amended by deleting subsections (a) and (b) thereof and by striking out the following: "(c)".1

(g) Section 2 of the Act of August 20, 1937 (50 Stat. 733; as amended) is amended by striking out the following: ", including patent rights,"."

(h) Section 2 of the Act of May 18, 1938 (52 Stat. 404) is amended by striking out the following: ", including patent rights,"."

(i) Section 6 of the Act of July 7, 1960 (P. L. 86-599; 74 Stat. 337) is repealed.*

(j) Paragraph (3) of subsection (b) of section 203 of the National Aeronautics and Space Act of 1958 (P. L. 85-568; 72 Stat. 429, as amended by the Act of May 13, 1959 (P. L. 86-20; 72 Stat. 21)) is amended by striking out the following: "(including patents)".5

(k) Section 19 of the Tennessee Valley Authority Act of 1933 (48 Stat. 68) is amended to read as follows:

"The Corporation, as an instrumentality and agency of the Government of the United States for the purpose of executing its constitutional powers, shall have access to the Patent Office of the United States for the purpose of studying, ascertaining, and copy

1 Amends 22 U.S.C. 2356.

2 Amends 16 U.S.C. 832a (d).

3 Amends 16 U.S.C. 833a (d).

Repeals 30 U.S.C. 666.

Amends 42 U.S.C. 2473(b) (3).

Section 1 amends 28 U.S.C. 1498 (a) to allow suits to be brought under it both in the Court of Claims and in the district courts in cases under $10,000. This has been accomplished by deleting the reference to the Court of Claims in that portion of the section stating that the patent owner's "exclusive remedy" shall be in the Court of Claims. The deletion of this language would still leave the Court of Claims with jurisdiction under 28 U.S.C. 1491 which grants it jurisdiction in connection with claims "founded . . . upon any Act of Congress Likewise, the district courts would have concurrent jurisdiction in cases under $10,000 pursuant to 28 U.S.C. 1346 (a) (2).

Section 2

Section 2 amends 28 U.S.C. 1498 so that the authorization and consent of the Government is automatically granted except where it is specifically withheld. This is to make it clear injunctions will not lie except where an agency has specifically withheld authorization and consent as to a specific patent.

Since another section of this Act makes it clear that the Government agencies may acquire patents or licenses in patents, it is very unlikely that this authority will be used except in rare cases. Presumably, the Government would normally attempt to negotiate a license rather than withhold authorization and consent as to a specific patent. But there might be a few cases where it is clear that use of the patent would be required, that the patent is valid, and that the owner is willing to and has licensed the patent to others on reasonable terms. In such cases, withholding

authorization and consent would not result in anticompetitive effects and might be considered the best course of action by the Government officials involved.

Section 3

Section 3 deals with the copyright portion of 28 U.S.C. 1498. Its only effect is to delete provisions authorizing the settlement of copyright claims by Government agencies prior to the initiation of suit under 28 U.S.C. 1498. This authority is substantially reenacted in section 7 of this Act, which section also authorizes for the first time, on a Governmentwide basis, the settlement of claims for the unauthorized use of patents by the Government. Section 7 also provides for settlement of claims for misuse of information. This aspect of the statute is explained more fully below. As a matter of technique it was felt desirable to place these related settlement authorities in one section. Accordingly, section 3 makes appropriate amendments to 28 U.S.C. 1498 (b).

Section 3 also amends 28 U.S.C. 1498 (b) to give the district courts concurrent jurisdiction with the Court of Claims in copyright cases of under $10,000. The same considerations that went into the similar change in 28 U.S.C. 1498 (a) apply here.

Section 4

Section 4 merely amends 28 U.S.C. 1498 (d) to give the district courts concurrent jurisdiction in cases under $10,000. 28 U.S.C. 1498 (d) deals with certificates of plant variety. This amendment does no more than to conform this subsection to the amendments made to subsections (a) and (b) in this regard.

Section 5

Section 5 creates a remedy against the Government for misuse of information. The United States would be subject to liability for damages to the owner of information for the misuse of such information where it was submitted to or obtained by the Government in confidence and under conditions limiting its use for specific purposes. The remedy is a broad one and is not limited to information submitted pursuant to contract. Indeed, in such cases there probably is an adequate remedy for breach of contract. The United States would not be liable, however, if the information had at any time been released by the owner to others on a nonconfidential basis or if such information is otherwise known to the public or the Government. These latter qualifications are intended to conform this section to the general common law rules of trade secrets.

Section 6

Section 6 makes clear that all agencies are authorized to acquire patents, applications for patents, copyrights, information, and interests therein. At present only a few agencies have a clear statement of such authority. While

arguably such authority is inherent, it is the purpose of this section to eliminate any doubt on this point.

Section 7

Section 7 authorizes agencies to settle, prior to the initiation of formal legal action by the patent owner (at which time the Department of Justice would take control), claims that could be brought under 28 U.S.C. 1498 (a) and (b) and under the new section 28 U.S.C. 1508 created by section 5 of this Act. As indicated earlier, the settlement of copyright claims under 28 U.S.C. 1498(b) is already authorized, and this section merely combines it with the other authorities that are being established. The authority to settle patent claims under 28 U.S.C. 1498 (a) is new. At present only a few agencies have such authority, but it is considered desirable to extend such authority to all agencies.

Section 8

Section 8 contains a series of technical repealers of legislation which is either inconsistent with the principles of the proposed act or which would be redundant thereto.

APPENDIX C

MEMORANDUM FOR

HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

On October 10, 1963, President Kennedy forwarded to the Heads of the Executive Departments and Agencies a Memorandum and Statement of Government Patent Policy for their guidance in determining the disposition of rights to inventions made under Government-sponsored grants and contracts. On the basis of the knowledge and experience then available, this Statement first established Government-wide objectives and criteria, within existing legislative constraints, for the allocation of rights to inventions between the Government and its contractors.

It was recognized that actual experience under the Policy could indicate the need for revision or modification. Accordingly, a Patent Advisory Panel was established under the Federal Council for Science and Technology for the purpose of assisting the agencies in implementing the Policy, acquiring data on the agencies' operations under the Policy, and making recommendations regarding the utilization of Government-owned patents. In December 1965, the Federal Council established the Committee on Government Patent Policy to assess how this Policy was working in practice, and to acquire and analyze additional information that could contribute to the reaffirmation or modification of the Policy.

The efforts of both the Committee and Panel have provided increased knowledge of the effects of Government patent policy on the public interest. More specifically, the studies and experience over the past seven years have indicated that:

(a) A single presumption of ownership of patent rights to Government-sponsored inventions either in the Government or in its contractors is not a satisfactory basis for Government patent policy, and that a flexible, Government-wide policy best serves the public

interest;

(b) The commercial utilization of Government-sponsored inventions, the participation of industry in Government research and development programs, and commercial competition can be influenced by the following factors: the mission of the contracting agency; the purpose and nature of the contract; the commercial applicability and market potential of the invention; the extent to which the invention is developed by the contracting agency; the promotional activities of the contracting agency; the commercial orientation of the contractor and the extent of his privately financed research in the related technology; and the size, nature and research orientation of the pertinent industry;

(c) In general, the above factors are reflected in the basic principles of the 1963 Presidential Policy Statement.

Based on the results of the studies and ex

perience gained under the 1963 Policy Statement certain improvements in the Policy have been recommended which would provide (1) agency heads with additional authority to permit contractors to obtain greater rights to inventions where necessary to achieve utilization or where equitable circumstances would justify such allocation of rights, (2) additional guidance to the agencies in promoting the utilization of Government-sponsored inventions, (3) clarification of the rights of States and municipal governments in inventions in which the Federal Government acquires a license, and (4) a more definitive data base for evaluating the administration and effectiveness of the Policy and the feasibility and desirability of further refinement or modification of the Policy.

I have approved the above recommendations and have attached a revised Statement of Government Patent Policy for your guidance. As with the 1963 Policy Statement, the Federal Council shall make a continuing effort to record, monitor and evaluate the effects of this Policy Statement. A Committee on Government Patent Policy, operating under the aegis of the Federal Council for Science and Technology, shall assist the Federal Council in these matters.

This memorandum and statement of policy shall be published in the Federal Register. RICHARD M. NIXON

the equities of the contractor, and serve the public interest.

D. The public interest in a dynamic and efficient economy requires that efforts be made to encourage the expeditious development and civilian use of these inventions. Both the need for incentives to draw forth private initiatives to this end, and the need to promote healthy competition in industry must be weighed in the disposition of patent rights under Government contracts. Where exclusive rights are acquired by the contractor, he remains subject to the provisions of the antitrust laws.

E. The public interest is also served by sharing of benefits of Government-financed research and development with foreign countries to a degree consistent with our international programs and with the objectives of U.S. foreign policy.

F. There is growing importance attaching to the acquisition of foreign patent rights in furtherance of the interests of U.S. industry and the Government.

G. The prudent administration of Government research and development calls for a Government-wide policy on the disposition of inventions made under Government contracts reflecting common principles and objectives, to the extent consistent with the missions of the respective agencies. The policy must recognize the need for flexibility to accommodate special situations.