SENATE July 14, 1978 S 10842 CONGRESSIONAL RECORD business considerations." Another criticism Large companies often fail to exploit their On the other hand, Raytheon Co. was highly successful in transferring its microwave expertise to its newly acquired Amana appliance subsidiary in 1967, resulting in the -counter-top microwave oven. That was done through a new-products business group set up specifically for such purposes. And more recently, this group, headed by Vice-President Palmer Derby, brought the company's microwave talent to bear on its Caloric subsidiary's product line, resulting in a new, combination microwave-electric range. In such ways, industry can maximize its potential for innovation in the most adverse environment. But the future health of the nation's economy, many experts believe, requires a much more benign environment for industrial R&D than has existed over the past decade. And Jordan Baruch, the enthusiastic leader of the multi-agency federal study, believes that such an environment is likely to emerge as a result of the Administration's concern. "We may have bitten off more than we can chew," notes Frank Press, "and it may be that we can't get much done in a year. But even if it takes three or five or 10 years, I think it is historically very important." A bi-weekly newsletter on Freedom of Information and Privacy ACCESS REPORTS Editor: Wallis E. McClain, Jr. Volume 4 Number 12, June 13, 1978 WASHINGTON FOCUS: - Lack of a comprehensive and coordinated policy covering the private as well as public aspects of privacy may be putting the United States at a disadvantage in the international community . . . Several European countries, including Denmark, France, Germany, Norway and Sweden, have passed data-protection laws to guard the privacy of their citizens. A feature of most alien to most privacy specialists in this country is that they prohibit exporting personal information beyond national borders, unless the recipient country can guarantee that the data will be protected So far, the United States cannot meet that test, and that is beginning to create headaches for multinational businesses. A full-scale international effort has begun to deal with the complex problems presented by "transnational data flow," as it is becoming known. . . Attorney General Griffin Bell's leadership in the Justice Department has been faulted in a review of his performance by the Committee for Public Justice, a civil liberties group headed by Lillian Hellman and Orville H. Schell. In the group's newsletter, Justice Department Watch, Bell was blasted for among other things failure to follow up on implementation of his own policy directives in the area of freedom of information. Recent use of the term "patentable material" by the National Institutes of Health as justification for the closing of advisory committee meetings seems to Access Reports newsletter is published bi-weekly (24 times a year) Copyright © 1978. Plus Publications, Inc. All rights reserved Editorial Correspondence Access Reports, 2626 Pennsylvania Ave. NW, Washington, DC 20037, (202) 333-5444 Subscription Correspondence Access Reports, PO Box 64014, Baltimore, Md 21264. (301) 528-4261 Subscription Rate: Newsletter only-$147 for one year, $277 for two years, $382 for three years, Newsletter and Reference File-$297 for one year, $549 for two years, $798 for three years, $57 a year for additional newsletter mailed in the same envelope, $167 for additional reference files. Page 6 ACCESS Reports/June 13, 1978 be "overly broad," according to a Library of Congress analysis prepared for a Senate subcommittee. Gerald Sturges, a staff attorney with the Senate Select Small Business Committee's Subcommittee on Monopoly and Anticompetitive Activities, said he feared that Exemption 4 of the Freedom of Information Act and the similar exemption in the Government-in-the-Sunshine Act are being stretched to include patentable material. The exemptions protect trade secrets and confidential business information. Sturges said the concern was that universities or nonprofit institutions could assert, as grounds for denying public access, that their proposals for research and development grants or contracts contain information about potentially patentable material. Peer review panels, which review grant applications for scientific and technical merit, might rely upon such assertions to close their meetings or deny access to documents. The problem with such an approach, Sturges explained, is that grant and contract proposals rarely, if ever, contain pre-invention information of a patentable nature. Because most such information comes about only as an unplanned by-product of research and development, it cannot be identified in a simple proposal for funding for scientific research. Last year, the NIH began to claim that meetings to discuss proposals concerning contract proposals or grant applications could be closed to protect "confidential trade secrets or commercial property such as patentable materials . . . ." However, the Congressional Research Service of the Library of Congress concluded that patentable information does not automatically justify a closed meeting. In a memorandum to the subcommittee, the research service said: "Patentable material must satisfy the requirements of either a trade secret or confidentiality or commercial use before it is subject to withholding. It is not per se exempt nor is it necessarily synonymous with commercial property, as the language in NIH notices seems to indicate. In that regard, the closure notices would seem to be overly broad since any 'patentable material' which may be involved must also meet the specific criteria of Exemption 4 in order to justify closure." However, Sen. Gaylord Nelson, D-Wis., chairman of the subcommittee, said in the May 19 Congressional Record that universities might use their institutional patent agreements with the Department of Health, Education and Welfare as "official recognition of the commercial potential of the proposed research." Institutional patent agreements give certain approved universities and nonprofit institutions first option to own the rights to inventions resulting from government-sponsored research and development. Sturges also expressed concern that Exemption 4 could be stretched before a patent application is filed to cover an institution's disclosures of inventions conceived as a result of such research. - In response to the subcommittee's expressed concerns, the Congressional Research Service said institutions have no right to expect that invention disclosures will be kept confidential if they do not intend to file a patent application. However, the memo continued: "It is those invention disclosures which the institution intends to patent but has not yet filed an application to which Exemption 4 would be applied in determining closure." ACCESS Reports/June 13, 1978 Page 7 The service said this approach did not mean creation of a new class of information that could be witheld from the public. Rather, it concluded, "it would be applying the general terms of the FOIA to a specific piece of information." SECRECY ORDER REPORTED WITHDRAWN ON WISCONSIN UNIVERSITY RESEARCH The Commerce Department's Patent and Trademark Office reportedly is withdrawing a Federal secrecy order imposed on a computer security research project at the University of Wisconsin, Milwaukee. A spokesman for the patent office said, however, he was unable to determine whether the order had actually been withdrawn. The secrecy order was issued on an invention disclosure after a university alumni group attempted to patent a computer security device developed as a result of the research study. An invention disclosure is required to be filed when an invention is conceived in the course of Federally sponsored research. The order, dated April 21, concluded that the study "has been found to contain subject matter, the unauthorized disclosure of which might be detrimental to the national security." It was reported that the National Security Agency prompted the patent and trademark office to deliver the order. A patent cannot be issued and the research cannot be lawfully divulged unless the order is overturned by the patent commissioner. Unauthorized disclosure could constitute a violation of patent laws, which carry penalties up to two years in prison and $10,000 in fines. With the order withdrawn, it is possible that the invention disclosure could be made available under the Freedom of Information Act, since the university's proprietary interests have been protected by the filing of a patent application. If the order remained in force, however, access probably could be denied under the FOIA by Exemptions 3, for data required to be kept secret by statute, and Exemption 1, for national security information. The computer security study was done by George I. Davida, a University of Wisconsin associate professor of electrical engineering and computer sciences. It was financed by the National Science Foundation, which in December 1977 awarded Davida, then a graduate student, $89,728 for the three-year study. According to a university spokesman, the grant contained no provision barring disclosure of the study's finding and gave no indication to Davida that he was conducting sensitive research. Werner A. Baum, chancellor at the Milwaukee campus, responded to the secrecy order with a letter to National Science Foundation Director Richard C. Atkinson, asking the foundation to join in the protest, and arguing that the Patent Office's action "infringes on the standard foundation policy of research disclosure, and more fundamentally, establishes a precedent which has a chilling effect on academic freedom." Moreover, university officials were reported to have gotten in touch with Secretary of Commerce Juanita Kreps and requested that she review the matter. In a June 8 letter, Atkinson told Baum that he, too, was concerned with Fage 8 ACCESS Reports/June 13, 1978 the "potential chilling effect of the Patent Office's action] on freedom of scientific inquiry." He added that "we are strongly of the view that in this context secrecy orders should not be issued lightly or on the basis of any but serious national security implications." "On the other hand," Atkinson continued, "I think you and I would both recognize that there can be cases when freedom of scientific inquiry must bow to serious national security concerns. Whether this is one of those cases we Again, NSF is continuing to look into do not yet know enough to tell |