Commerce Department which does violence to such an important quasi-judicial agency as the Patent Office, while it offers no efficiencies in return. In this view I am supported abundantly by patent groups and individual patent attorneys who have written me from all over the country.

I have seen fit, prior to introduction of this resolution, to take up the matter of its introduction with the full Judiciary Committee meeting in executive session. Out of respect for the preservation of the process provided in the Reorganization Act of 1949, which provides for consideration of such resolutions by the appropriate committee in Congress, the Judiciary Committee withheld any official view upon the soundness of Reorganization Plan No. 5, but did unanimously authorize me to introduce this resolution so that it may be amply considered in due course in proper quarters. In introducing it, I am sincerely hopeful that the Expenditures Committee of this body will see fit to hold hearings within the 10-day period provided by law so that the equities and inequities of the reorganization plan can be thoroughly aired and Congress be given an opportunity to consider the impact of the plan upon the Patent Office. In support of the resolution, I submit at this time for inclusion in the Congressional Record a memorandum of the American Patent Law Association describing in greater detail the grounds of their opposition:

"MEMORANDUM OF THE AMERICAN PATENT LAW ASSOCIATION IN OPPOSITION TO REORGANIZATION PLAN NO. 5 OF 1950 PROVIDING FOR REORGANIZATION IN THE DEPARTMENT OF COMMERCE

"The American Patent Law Association vigorously opposes Reorganization Plan No. 5 insofar as it applies to the Patent Office for the reasons:

"1. That the transfer to the Secretary of Commerce or to the head of any other department of any of the functions of the Commissioner of Patents is unsound and undesirable, and would not further any of the stated objectives of the Reorganization Act of 1949, and

"2. That Reorganization Plan No. 5 is not actually a reorganization plan with respect to the Patent Office but is an unrestricted continuing authorization to the Secretary of Commerce to reorganize the Patent Office and to reassign the functions of its legally established officers and tribunals without any reference to the Congress whatsoever.

"I. The proposal to tranfer to the Secretary of Commerce all functions assigned by law to the Commissioner of Patents is unsound and would seriously impede the Commissioner of Patents and the other officers and employees of the Patent Office in the performance of their duties in the issuance of patents and the registration of trade-marks; it would seriously impair the present high public confidence in the integrity of the officers and employees of the Patent Office; and it would effectively nullify the long-continued close surveillance and control which the Congress has rightfully always maintained over this organization which is so important to the American economy.

"The Congress has assigned by law to the Commissioner of Patents certain important functions. These functions, a number of which are set forth below, would be transferred to the Secretary of Commerce under Reorganization Plan No. 5:

"1. Quasi-judicial functions over which the Secretary has now no control or veto power.

"PATENTS

"A. Deciding cases as member of board of appeals (35 U. S. C. 7).

"B. Disbarment of attorneys (35 U. S. C. 11).

"C. Determining who shall receive patents (35 U. S. C. 36).

"D. Deciding which inventions shall be kept secret (35 U. S. C. 42).

"E. Deciding whether or not interferences should be declared (35 U. S. C. 52). "F. Deciding petitions.

"TRADE-MARKS

"A. Deciding who shall receive certificates (15 U. S. C. 1051).

"B. Deciding inter partes controversies (15 U. S. C. 1068).

"C. Deciding all controversies on appeal (15 U. S. C. 1070).

"D. Prescribing rules and regulations governing trade-mark registration procedures (15 U. S. C. 1051).

"2. Supervisory functions over which the Secretary has now no control or veto power.

"A. Report to the Congress (35 U. S. C. 20).

"3. Supervisory functions of the Commissioner over which the Secretary has only a veto power.

"A. Selection of employees (35 U. S. C. 2).

"B. Making of rules (35 U. S. C. 6).

"C. Performance of duties relating to lawful issue of patents (35 U. S. C. 6). "The Patent Office, in very much its present form, was created by the Congress by the act of 1836 (ch. 357, 5 Stat. 117). This act provided for a chief officer of the Patent Office to be known as the Commissioner of Patents, and the act declared it to be the duty of the Commissioner to issue patents on inventions which he deemed to be sufficiently useful and important.' The act provided for an appeal from the rejection of a patent application to a board of three examiners. Provisions for a suit in equity against the Commissioner for refusal to issue a patent (compare 35 U. S. C. 63; R. S. 4915) and for an appeal to the Circuit Court of the United States for the District of Columbia (compare 35 U. S. C. 59a; R. S. 4911) were made by the act of 1839 (ch. 88, 5 Stat. 354).

The early legislation with respect to the granting of patents was reviewed in the opinion of the Supreme Court in Butterworth v. Hoe (112 U. S. 50 (1884)), a case in which the nature of the function of the Commissioner of Patents and the relation of the Secretary of Interior (the Patent Office was then a part of the Department of Interior for administrative purposes) thereto were fully considered and determined. Speaking of the duties and functions of the Commissioner of Patents, the Supreme Court said, in the cited case:

"The conclusion cannot be resisted that, to whatever else supervision and direction on the part of the head of the department may extend, in respect to matters purely administrative and executive, they do not extend to a review of the action of the Commissioner of Patents in those cases in which, by law, he is appointed to exercise his discretion judicially. It is not consistent with the idea of judicial action that it should be subject to the direction of a superior, in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates. Such a subjection takes from it the quality of a judicial act. That it was intended that the Commissioner of Patents in issuing or withholding patents, in reissues, interferences and extensions, should exercise quasi-judicial functions, is apparent from the nature of the examinations and decision he is required to make, and the modes provided by law, according to which, exclusively, they may be reviewed.'

"The wisdom of the policy of the Congress, uniformly adhered to for over a century, in confiding such judicial functions to a specially designated official who could be, and uniformly has been, selected for his acquaintance with and devotion to the patent system, is obvious. The shelves of bound volumes of decisions of the Commissioners of Patents in our law libraries are a monument to that wisdom, and to the integrity and intelligence of a long line of highly respected Commissioners.

"Anyone seeking to divert from the Commissioner of Patents the judicial function imposed on him by the Congress over this great length of time surely should be required to make some showing of benefits commensurate with the disadvantages inherent in the proposal. No such showing has been made and no such showing can be made. Transfer of the functions of the Commissioner of Patents to the Secretary of Commerce would not promote better execution of the law, economy, of efficiency and would not eliminate any overlapping of functions as no such overlapping now exists. True, under the proposed plan the Secretary of Commerce could redelegate the judicial functions now exercised by the Commissioner of Patents to that official, but this would be contrary to the principle laid down by the Supreme Court in the Butterworth case, cited. "Inevitably, under the proposed plan the functions of the Commissioner of Patents would have to be exercised by some one other than the Secretary of Commerce, as some of those functions are now in fact exercised by Assistant Commissioners and other officers responsible to the Commissioner of Patents. But the vice of the situation proposed by plan 5 which does not exist today, is that the official responsible for the judicial decisions would not be, as is the case today, an official selected for his special qualifications to make those decisions.

"The Secretary of Commerce should not be responsible for judicial decisions in the highly specialized field of patents and trade-marks, which we must presume he would not be competent to make, for it is not believed that it would be rational to expect that heads of the Commerce Department would generally be experienced in the technical legal problems involved in the granting of patents, the registration of trade-marks, the resolving of interferences, and the like, no matter how competent they might be in general administrative and executive duties.

"The interests of the patent system, of the American economy, and of the country at large demand that the functions of the Commissioner of Patents be continued to be exercised by him directly and responsibly, as the wisdom of the Congress has provided since 1836.

"II. A second, and possibly a more fundamental objection to plan No. 5 is that it is essentially not a reorganization plan at all but a request for a blanket authorization for any reorganization the Executive may hereafter see fit to make. It may be termed a plan not to have any plan. It is submitted that plan No. 5 is not within the spirit, even if it is within the letter of the Reorganization Act of 1949. Surely the Congress contemplated that plans for reorganization submitted under that act would be something tangible and definite, which the Congress could examine and evaluate, and approve or disapprove as the Congress saw fit. Plan No. 5 is not such a definite and tangible plan, but merely a request for authority to reorganize without further reference to the Congress.

"Under plan No. 5 the Secretary of Commerce may, at any time, make any such rearrangement and reassignment of the functions which the Congress has assigned to the Commissioner of Patents and his staff, as the Secretary sees fit. This proposal is inconsistent and incompatible with the careful scrutiny and control which the Congress has always exercised over the Patent Office, in obvious recognition of the vital role which the Patent Office plays in the American economy.

"A very recent example of this close scrutiny and control is to be found in Public Law 452 of the present Congress, approved March 4, 1950, in which the Commissioner is authorized, in his discretion, to designate primary examiners to serve on the board of appeals, under carefully worded conditions and restrictions. This law is worded as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 482 of the revised statutes (35 U. S. C. 7) is amended by adding the following paragraph:

66 6

"The Commissioner, when in his discretion considered necessary to maintain the work of the board of appeals current, may designate any examiner of the primary examiner grade or higher, having the requisite ability, to serve as examiner in chief for periods not exceding 6 months each, and any examiner so designated shall be qualified to act as a member of the board of appeals. Not more than one primary examiner shall be among the members of the board of appeals hearing an appeal.'

"It is impossible to believe that the Congress will now wish to abdicate entirely its long and consistent close control of the functioning of the Commissioner of Patents and the Patent Office to the unlimited discretion of the Secretary of Commerce.

"It is earnestly submitted that the Congress should reject plan No. 5 and that it should not at any time approve any plan of reorganization which does not clearly and definitely reserve to the Commissioner of Patents and the officials and tribunals of the Patent Office those functions which have been committed to them by the Congress ever since 1836.

Respectfully,

"AMERICAN PATENT LAW ASSOCIATION."

Mr. HOLIFIELD. This resolution, I neglected to state, which is a resolution to disapprove the President's Reorganization Plan No. 5, was transmitted to Congress by the President on March 13, 1950.

I might say that 21 of these plans have been presented to this committee, and we are under a time limitation ourselves in regard to the consideration of these various plans. They are coming so fast that we do have to call these meetings rather quickly and without very much warning in advance.

Mr. BRYSON. Yes; I understand that.

Mr. HOLIFIELD. And we will be glad to hear your witness. Is Congressman Lanham here?

Congressman Lanham, it is indeed a pleasure to have you before this commitee. You have the high regard, I think, of every Member of Congress on both sides of the aisle for your many years of fine service to the Congress of the United States, and it is indeed pleasant for us to have you before us.

STATEMENT OF HON. FRITZ LANHAM, FORMERLY A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS AND MEMBER OF THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES, AND LEGISLATIVE REPRESENTATIVE OF THE NATIONAL PATENT COUNCIL

Mr. LANHAM. Thank you, Mr. Chairman, and I am glad to come with reference to such a meritorious matter as is proposed by the resolution introduced by Representative Bryson.

My name is Fritz Lanham. In addition to appearing by reason of the fact that I served for approximately a quarter of a century as a member of the Committee on Patents of the House of Representatives and thereby acquired some familiarity with the importance of the patent system▬▬

Mr. RICH. And by the way, he made a good chairman, I served on that committee.

Mr. LANHAM. I bow low and doff my hat.

In addition. I represent the National Patent Council, which is a nonprofit organization of smaller manufacturers interested primarily in the educational campaign of acquainting the people of America with the importance of our patent system. Mr. John W. Anderson, the president of that organization, was anxious to be here today, but by reason of illness in the family is unable to do so.

In my judgment, Mr. Chairman, the proposal of this plan is perhaps the most serious one which has been presented from the standpoint of the impairment of American progress. Our patent system is practically as old as the country. There was no controversy whatever in the Constitutional Convention with reference to the inclusion in the Constitution of the provision with reference to patents and copyrights to promote science and the useful arts. The father of it, from the American standpoint, is probably Thomas Jefferson, who was a great inventor himself; and Abraham Lincoln was also an inventor and interested in the patent system.

I think it will be generally conceded that our patent system has been the basis of our progress and advancement and prosperity. There are many countries in the world which have greater resources than the United States, but there is no country which gives the incentive to the little fellow as well as to the big one to profit temporarily by the contributions that he makes through inventions to the general welfare as does the United States; and our American standard of living is based absolutely upon the inventions which have been inspired by this incentive.

Now, the Patent Office is necessarily one which deals with technical matters and by all means should be in charge of one versed by training, experience, and practice in the system. That has always been true under our operation of the patent system. The proposal here is that all of those functions of the Patent Office be turned over to the Secretary of Commerce, who, by reason of the fact that he is a busy man with many problems confronting him, would necessarily have to transfer to some administrative officer the functions of the Patent Office. It is clearly a one-man job, requiring all of his time. It is now and always has been the responsibility of one familiar with and devoted to our patent system. But now we have a proposal to turn all of those functions over to one who would merely be an administra

tive officer, not necessarily with any experience or training in this technological field, and without appointment by the President or confirmation by the Senate. And I think that the incentive of the American to invent would be diluted if not practically destroyed by the adoption of this plan. The inventor knows very definitely now, and has known throughout the operation of the patent system, just what is required of him from the standpoint of finally procuring a patent. Under this proposal, he would have no such knowledge. It would all be within the discretion of an administrative officer; and perhaps, though I think in no wise would it apply to the present Secretary of Commerce, an officer who might be motivated somewhat in his final judgments by political considerations. And I think to turn the patent system over to an administrative officer of that character would strike right at the very basis of the system which has been responsible for our progress and the creation of the American way of life."

Furthermore, I think it would be abrogating both the power and the duty of the Congress itself to pass upon matters judicial and quasijudicial in their nature having to do with the patent system, because the Commissioner of Patents is not a mere administrative officer. He occupies a judicial or quasi-judicial position. And to interfere with the operation of this fundamental system in such a way is equivalent to and analogous to making changes of this character in the courts of the country.

I do not think anybody can contend that there is any economy for the Government involved in the proposal that is here made. I think it is the most serious threat to our continued progress and advancement that has yet been suggested.

Where do our patents come from? What is the source of our progress? Oh, well, we could go on to enumerate the humble sources from which so many of our great inventions have emanated. Notably we could cite Thomas Edison, who was called a dullard by his teacher in school, and yet by reason of the incentive of the patent system he became an outstanding inventor and human benefactor, to such an extent that we celebrated for a week the centennial anniversary of his birth.

The Wright brothers, as I recall, were bicycle dealers. Oh, from the time of Leonardo da Vinci on down, scientists have been working to bring about practical aviation; and yet it remained for these humble men first to accomplish that feat.

Take this distinguished colored scientist, George Washington Carver, and the wonderful discoveries that he has made. Why, we could take the inventions which have been so helpful to America and have added so much to our comfort and our convenience and our advancement, and we would find perhaps in the majority of cases that they had come from very humble sources, from those who work industriously in their cellars or their garrets or their little workshops, often without necessary sleep or food.

Now we are striking at the very fundamental basis of that progress in this proposal. We are weakening, if not destroying, the incentive of these men to invent-because in such an indefinite situation as this plan proposes they could have no assurance whatever that their ideas, however meritorious, might finally result in patents and the temporary compensation which our law provides.

I have talked longer perhaps than I should, Mr. Chairman, but I am so much interested in this. I am not a patent attorney, but I do