pose of the use which the applicant intends to make of the patent license, the steps taken by the applicant to obtain a patent license from the owner of the patent, and a statement of the effects, as estimated by the applicant, on the authorized activities which will result from failure to obtain such patent license and which will result from the granting of such patent license.

"d. Whenever any person has made an application to the Commission for a patent license pursuant to subsection 153 c.

"(1) the Commission, within 30 days after the filing of such application, shall make available to the owner of the patent all of the information contained in such application, and shall notify the owner of the patent of the time and place at which a hearing will be held by the Commission;

(2) the Commission shall hold a hearing within 60 days after the filing of such application at a time and place designated by the Commission; and

66

“(3) in the event an applicant applies for two or more patent licenses, the Commission may, in its discretion, order the consolidation of such applications, and if the patents are owned by more than one owner, such owners may be made parties to one hearing.

"e. If, after any hearing conducted pursuant to subsection 153 d., the Commission finds that

"(1) the invention or discovery covered by the patent is of primary importance in the production or utilization of special nuclear material or atomic energy;

"(2) the licensing of such invention or discovery is of primary importance to the conduct of the activities of the applicant;

"(3) the activities to which the patent license are proposed to be applied by such applicant are of primary importance to the furtherance of policies and purposes of this Act; and

"(4) such applicant cannot otherwise obtain a patent license from the owner of the patent on terms which the Commission deems to be reasonable for the intended use of the patent to be made by such applicant,

the Commission shall license the applicant to use the invention or discovery covered by the patent for the purposes stated in such application on terms deemed equitable by the Commission and generally not less fair than those granted by the patents or by the Commission to similar licensees for comparable use.

"f. The Commission shall not grant any patent license pursuant to subsection 153 e. for any other purpose than that stated in the application. Nor shall the Commission

Injunctions. 42 U.S.C. sec. 2184.

Prior art. 42 U.S.C. sec. 2185.

Commission patent licenses. 42 U.S.C.

sec. 2186.

grant any patent license to any other applicant for a patent license on the same patent without an application being made by such applicant pursuant to subsection 153 c., and without separate notification and hearing as provided in subsection 153 d., and without a separate finding as provided in subsection 153 e.

"g. The owner of the patent affected by a declaration or a finding made by the Commission pursuant to subsection 153 b. or 153 e. shall be entitled to a reasonable royalty fee from the licensee for any use of an invention or discovery licensed by this section. Such royalty fee may be agreed upon by such owner and the patent licensee, or in the absence of such agreement shall be determined for each patent license by the Commission pursuant to subsection 157 c.

"h. The provisions of this section shall apply to any patent the application for which shall have been filed before September 1, 1979.102

"SEC. 154. INJUNCTIONS.-No court shall have jurisdiction or power to stay, restrain, or otherwise enjoin the use of any invention or discovery by a patent licensee, to the extent that such use is licensed by subsection 153 b. or 153 e. If, in any action against such patent licensee, the court shall determine that the defendant is exercising such license, the measure of damages shall be the royalty fee determined pursuant to subsection 157 c., together with such costs, interest, and reasonable attorney's fees as may be fixed by the court. If no royalty fee has been determined, the court shall stay the proceeding until the royalty fee is determined pursuant to subsection 157 c. If any such patent licensee shall fail to pay such royalty fee, the patentee may bring an action in any court of competent jurisdiction for such royalty fee, together with such costs, interest, and reasonable attorney's fees as may be fixed by the court.

"SEC. 155. PRIOR ART.-In connection with applications for patents covered by this Chapter, the fact that the invention or discovery was known or used before shall be a bar to the patenting of such invention or discovery even though such prior knowledge or use was under secrecy within the atomic energy program of the United States.

"SEC. 156. COMMISSION PATENT LICENSES.-The Commission shall establish standard specifications upon which it may grant a patent license to use any patent held by the Commission or declared to be affected with the pub

102 Public Law 86-50 (73 Stat. 81) (1959), sec. 114, amended subsec. 153 h. by changing the date from Sept. 1, 1959, to Sept. 1, 1964. Public Law 88-394 (78 Stat. 376) (1964), sec. 1, amended subsec. 153 h. by changing the date from Sept. 1, 1964, to Sept. 1, 1969. Public Law 91161 (83 Stat. 444) (1969), sec. 1, amended subsec. 153 h. by changing the date from Sept. 1, 1969, to Sept. 1, 1974. Public Law 93-377, sec. 6 (88 Stat. 475) (1974), amended subsec. 153 h. by changing the date from Sept. 1, 1974 to Sept. 1, 1979.

lic interest pursuant to subsection 153 a. Such a patent license shall not waive any of the other provisions of

this Act.

Compensation, awards, and

sec. 2187.

"SEC. 157. COMPENSATION, AWARDS, AND ROYALTIES."a. PATENT COMPENSATION BOARD.-The Commission royalties. shall designate a Patent Compensation Board to con- 42 US.C. sider applications under this section. The members of the Board shall receive a per diem compensation for each day spent in meetings or conferences, and all members shall receive their necessary traveling or other expenses while engaged in the work of the Board. The members of the Board may serve as such without regard to the provisions of sections 281, 283, or 284 of Title 18 of the United States Code, except in so far as such 62 Stat. 697. sections may prohibit any such member from receiving compensation in respect of any particular matter which directly involves the Commission or in which the Commission is directly interested.

"b. ELIGIBILITY.

"(1) Any owner of a patent licensed under section 158 or subsections 153 b. or 153 e., or any patent licensee thereunder may make application to the Commission for the determination of a reasonable royalty fee in accordance with such procedures as the Commission by regulation may establish.

"(2) Any person seeking to obtain the just compensation provided in section 151 shall make application therefor to the Commission in accordance with such procedures as the Commission may by regulation establish.

"(3) Any person making any invention or discovery useful in the production or utilization of special nuclear material or atomic energy, who is not entitled to compensation or a royalty therefor under this Act and who has complied with the provisions of section 151 c. hereof may make application to the Commission for, and the Commission may grant, an award. The Commission may also, after consultation with 103 the General Advisory Committee, and with the approval of the President, grant an award for any especially meritorious contribution to the development, use, or control of atomic energy. "C. STANDARDS.

"(1) In determining a reasonable royalty fee as provided for in subsection 153 b., or 153 e., the Commission shall take into consideration (A) the advice of the Patent Compensation Board; (B) any defense, general or special, that might be pleaded by a defendant in an action for infringement; (C) the extent to which, if any, such patent was developed through federally financed research; and (D) the degree of utility, novelty, and im

108 Public Law 93-276 (88 Stat. 115) (1974), sec. 201, amended this section by substituting the words "after consultation with" for the words "upon the recommendation of".

Eligibility.

Standards.

Monopolistic

42 U.S.C.

sec. 2188.

portance of the invention or discovery, and may consider the cost to the owner of the patent of developing such invention or discovery or acquiring such patent.

"(2) In determining what constitutes just compensation as provided for in section 151, or in determining the amount of any award under subsection 157 b. (3), the Commission shall take into account the considerations set forth in subsection 157 c. (1) and the actual use of such invention or discovery. Such compensation may be paid by the Commission in periodic payments or in a lump sum.

"d. PERIOD OF LIMITATIONS.-Every application under this section shall be barred unless filed within six years after the date on which first accrues the right of such reasonable royalty fee, just compensation, or award for i which such application is filed.104

"SEC. 158. MONOPOLISTIC USE OF PATENTS.-Whenever use of patents. the owner of any patent hereafter granted for any invention or discovery of primary use in the utilization or production of special nuclear material or atomic energy is found by a court of competent jurisdiction to have intentionally used such patent in a manner so as to violate any of the antitrust laws specified in subsection 105 a., there may be included in the judgment of the court, in its discretion and in addition to any other lawful sanctions, a requirement that such owner license such patent to any other licensee of the Commission who demonstrates a need therefor. If the court, at its discretion, deems that such licensee shall pay a reasonable royalty to the owner of the patent, the reasonable royalty shall be determined in accordance with section 157.105

Federally financed research.

42 U.S.C. sec. 2189.

Saving clause. 42 U.S.C. sec. 2190.

"SEC. 159. FEDERALLY FINANCED RESEARCH.-Nothing in this Act shall affect the right of the Commission to require that patents granted on inventions made or conceived during the course of federally financed research or operations, be assigned to the United States.

"SEC. 160. SAVING CLAUSE.-Any patent application on which a patent was denied by the United States Patent Office under sections 11 (a) (1), 11 (a) (2), or 11 (b) of the Atomic Energy Act of 1946,106 and which is not prohibited by section 151 or section 155 of this Act may be reinstated upon application to the Commissioner of Patents within one year after enactment of this Act and shall then be deemed to have been continuously pending since its original filing date: Provided, however, That no patent issued upon any patent application so reinstated shall in any way furnish a basis of claim against the Government of the United States.

104 Public Law 87-206 (75 Stat. 475) (1961), sec. 11, added subsec. 4. 105 The second sentence of sec. 158 was amended by Public Law 87-206 (75 Stat. 475) (1961). sec. 12. Prior to amendment, it read: "Such licensee shall pay a reasonable royalty fee to be determined in accordance with section 157, to the owner of the patent.

108 See Atomic Energy Act of 1946, appendix 4, infra, sec. 11.

for

"CHAPTER 14. GENERAL AUTHORITY

"SEC. 161. GENERAL PROVISIONS.-In the performance General its functions the Commission is authorized to

provisions. 42 U.S.C.

"a. establish advisory boards to advise with and sec. 2201. make recommendations to the Commission on legislation, policies, administration, research, and other matters, provided that the Commission issues regulations setting forth the scope, procedure, and limitations of the authority of each such board;

"b. establish by rule, regulation, or order, such standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property;

"c. make such studies and investigations, obtain such information, and hold such meetings or hearings as the Commission may deem necessary or proper to assist it in exercising any authority provided in this Act, or in the administration or enforcement of this Act, or any regulations or orders issued thereunder. For such purposes the Commission is authorized to administer oaths and affirmations, and by subpena to require any person to appear and testify, or to appear and produce docu- 49 U.S.C. 48. ments, or both, at any designated place. Witnesses subpenaed under this subsection shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States; 107

27 Stat. 443,

80 Stat. 443,

"d. appoint and fix the compensation of such officers and employees as may be necessary to carry out the functions of the Commission. Such officers and employees shall be appointed in accordance with the civil-service laws and their compensation fixed in accordance with the Classification Act of 1949, as amended, except that, to the extent the Commission deems such action necessary to the discharge of its U.S.C. 5101. responsibilities, personnel may be employed and their compensation fixed without regard to such laws: Provided, however, That no officer or employee (except such officers and employees whose compensation is fixed by law, and scientific and technical personnel up to a limit of the highest rate of grade 18 of the General Schedule of the Classi

107 Public Law 91-452 (84 Stat. 922) (1970), sec. 237, The Organized Crime Control Act of 1970, deleted the following sentence from subsec. 161 c. "No person shall be excused from complying with any requirements under this paragraph because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893, shall apply with respect to any individual who specifically claims such privilege."

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