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Mr. MEIKLEJOHN. Mr. Chairman, we discussed this a bit. It is a very difficult question, as you can imagine.
Mr. PREYER. Yes.
Mr. MEIKLEJOHN. David's thoughts on the matter before were that there were two kinds of damage that could be sustained through a secrecy order. One is for the unauthorized use by the Government of the invention which is disclosed to it. A second is any loss of commercial deals that might have been in the offing prior to the institution of the secrecy order.
With respect to the second kind, that is relatively easy to quantify, I would think. If there was a deal, there would be a certain amount of money paid in advance and a certain royalty established. It is possible to project what the market would have been. The burden is a tremendous burden, but I think once the assertion is made it would be on the Government to indicate that that, assertion is incorrect.
Mr. PREYER. Thank you.
I might indicate that the vote on the floor is on approval of the journal, if that is important to you. I think I will continue with the hearing
Mr. WEISS. Since I have occasion to miss those sometimes, because Eastern Airlines forces me to, I will answer this call. Thank you, Mr. Chairman.
Mr. Evans. I am going to answer this one, Mr. Chairman.
Mr. PREYER. I think the committee might then stand in recess for about 10 minutes. We might all answer this vote.
I did have one more question I wanted to ask Mr. Moore, which was simply what recommendations he might have as to how the law might be changed to better protect inventors. Perhaps we can ask that question when we return.
The committee will stand in recess for about 10 minutes.
I will put my question to Mr. Moore, and if the other gentlemen have questions they may. It is the question I mentioned just before we recessed. That is, do you have any recommendations, Mr. Moore, as to how we should change the law in order to protect the rights of inventors like you better than they have been protected in the past?
Mr. MOORE. I feel that the law is there right now. If it is properly administered and enforced it is adequate. It needs very little change if any.
It is simply that they do not practice the law as they should, as it is written. That is what I find with the examiners in the Patent Office and the legal heads outside.
It is not a question of the law, to my mind, it is a question of the people themselves.
Mr. MEIKLEJOHN. Dr. Moore had some specific implementations of the law that he thought would be helpful.
Mr. MOORE. You tell them exactly what they were. It is better than coming from me.
Mr. MEIKLEJOHN. All right. One was the suggestion that possibly the secrecy order should indicate on the order that the inventor
has within 6 years of the issuance of his patent to seek any kind of administrative relief. In Dr. Moore's case, his patent issued in 1965 and he filed his claim with the Court of Claims in 1973, just outside the 6-year time limit. He tells me that he did not know of that particular law.
It might be helpful, he thought, in the future for secrecy orders to have that provision of the law printed right on them.
A second suggestion is, that he thought might be helpful, some kind of automatic compensation to non-Government inventors who file patent applications which are subject to a secrecy order. The amount of money probably would not be that great, since Mr. Tegtmeyer testified that only 43 of over 100,000 patent applications are subject to secrecy orders with respect to non-Government inventors. We are only talking about a very small number of patent applications.
Dr. Moore has indicated that he feels that most breakthrough type inventions, that Mr. Weiss alluded to, are made by people outside the inner circle of a particular technology. The reason for that, he thinks, is that people on the outside are perhaps not as conversant with all the problems that are involved in the particular technology. They see a solution to a problem, and they do not see all the problems involved in arriving at that solution.
I think it is fairly well documented that the real breakthrough inventions are in fact made by those outside of a particular technology. In this case the 43, or so, out of 100,000 patent applications that are filed by non-Government inventors that are subject to secrecy orders might be the real breakthrough type of invention. Certainly, that is what Dr. Moore feels about his own invention which is being litigated in the Court of Claims today.
Finally, with respect to automatic compensation, Dr. Moore feels that in balancing the Government's interests in secrecy and national defense versus the inventor's interests in promoting the progress of science and the useful arts, under the present system the inventor just loses. The Government gains. Its interests are totally taken care of, but the inventor, like himself, just loses without any kind of compensation.
Mr. PREYER. Thank you.
I do thank Mr. Moore very much for his appearance here with us this morning to shed some light on a very important and longneglected issue.
Thank you, Mr. Chairman.
Dr. Moore, do you have any reason to believe that anyone, inside or outside of Government, infringed on your patent?
Mr. MOORE. I think they did, yes.
Mr. MOORE. In fact, the Government itself in making the explosive-They did definitely infringe my explosive patent.
Mr. WEISS. Do you think that any of the infringement occurred on the part of non-Government organizations or institutions or
companies who received the results of certain tests or your material, the Moorite material?
Mr. MOORE. Yes. In fact, Dupont and Indian Head both infringed my patent. In fact, Dupont, when I went to see him, said, "Go ahead and sue us. We will keep you in court for 20 years."
Mr. WEISS. When did they say that to you?
Mr. Weiss. Do you think that it might be helpful-and perhaps your counsel could respond to this as well—if lists of recipients of test results and of patent information on someone else's patent had to be reported back to the original patent applicant?
Mr. MOORE. I think so, yes. They were testing my explosive.
Mr. WEISS. Should you also have received copies of the list of other people who did recieve a copy of that report?
Mr. MOORE. They definitely should have given me a list, because it was my patent that was indicated in the report.
Mr. Weiss. I have one more area of questions. You suggested, I think, that you were not suing under the Secrecy Act. What is the basis of your suit? Is it contractual, patent infringement? What is the basis of the claim?
Mr. MOORE. They said it was a Government infringement of my patent.
Mr. MEIKLEJOHN. The Invention Secrecy Act was not relied upon because the statute requires that an administrative claim be made within 6 years of the issuance of the patent. David's patent issued in 1965. His claim was made in 1973, too late. He did not know about that requirement.
Mr. WEISS. Was there an attempt to defend on the ground that you did not meet the requirement of the Invention Secrecy Act? Did the Government use that as a defense?
Mr. MEIKLEJOHN. That was their defense.
Mr. MEIKLEJOHN. At a pretrial conference, before the infringement trial, the judge suggested that that claim be dropped because of the fact that David did not meet the strict requirements of that act.
Mr. Weiss. Thank you very much.
Mr. Chairman, I just want to compliment Dr. Moore for having the perseverance to, over these many years, stand up and fight for his rights. I am sure that if the minority members were present they would agree with my commendation of him for fighting for the bureaucracy tooth and nail.
Mr. PREYER. I agree with you, Mr. Weiss.
Mr. Moore, we thank you very much for being here. I hope it will not take 20 years to resolve your lawsuit, but if it is 20 years before it comes to trial, I am sure you will make a very fine witness.
Mr. MOORE. It just might be the pardon that came too late. (Laughter.)
You see, I have no children, no wife, just good friends.
Mr. PREYER. Our last witness this morning is Mr. Miles Foy of the Department of Justice's Office of Legal Counsel.
Mr. Foy, we are glad to have you here today, and since you are dealing more in matters of opinion than testifying as to facts, I do not think our rule of swearing our witnesses would apply.
Will you identify your associates here?
OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; AC-
I have with me Vito Di Pietro. He is the Assistant Director of our Commercial Litigation Section. He has kindly consented to buttress my remarks on the Invention Secrecy Act and the patent issues which you have addressed to us.
Mr. PREYER. Mr. Foy, in view of the hour, since we have run a little late, and in view of the fact that your statement consists of a legal brief which is better studied than simply read—I have had a chance to read it and I hope the other members of the subcommittee have—let me suggest that that brief be made a part of the record at this point, and that rather than having you read a rather lengthy brief, we go directly into questions.
[Mr. Foy's prepared statement follows:]
H. MILES FOY
OFFICE OF LEGAL COUNSEL
The duty to provide for the common defense is one
of the primary duties of the Federal Government. I am here at your request to discuss a series of legal questions that have an important bearing on the performance of that duty. They all relate to the same problem the problem of preventing foreign governments or groups from gaining access to the scientific and technical information that makes modern warfare and terrorism possible. Your particular concern is with the Government's power to restrict access to technical information that has been created by, or is in the possession of, private citizens. What can the Government do to prevent foreign governments or groups from obtaining information having military significance that originates in private sources?
In your invitation to the Department you asked that we address six or seven specific issues that are presented in one way or another by the previous attempts of Congress and the Executive Branch to deal with this problem of access. Before I discuss these issues, I would like to say a word about the general legal framework, particularly the consti
tutional framework, in which our analysis must proceed. This is a difficult field. In this brief statement I will confine
myself to a few simple points.