Mr. O'BRIEN. They have not been pending long, Mr. Chenoweth. Mr. CHENOWETH. A year or more.

Mr. O'BRIEN. No, sir. We will act promptly on them. I think perhaps 16 have been received within the last 2 months.

Mr. CHENOWETH. What caused this recent interest in filing?

Mr. O'BRIEN. I think, Mr. Chenoweth, that there are lots of delays that accompany this. The first is the reporting of the invention by the employee inventor to his employer. He reports the invention. The employer has to evaluate the importance of this invention to his organization-its importance to him-and they probably have to make a determination as to its probable patentability and these things take time. Then, of course, the patent departments of all of these corporations are occupied with other things and I suppose that these inventions wait their turn before a petition is prepared.

Mr. CHENOWETH. Let me ask this question right here: Let's assume the waiver is granted. What rights and benefits does that then give the inventor in that invention? Is it nonexclusive or exclusive?

Mr. O'BRIEN. He has title, sir. The inventor's assignee has title to this invention.

Mr. CHENOWETH. You speak of commercial development.

Mr. O'BRIEN. He has exclusive commercial development with the one additional facet that it would be revocable if he does not commercially develop the invention within a period of years.

Mr. CHENOWETH. You make one statement here, Mr. Johnson, that most of the early resistance to do business with NASA has disappeared.

I got the very definite impression from the patent attorneys who appeared before the Mitchell subcommittee that exactly the opposite was true, that they were a little reluctant because of section 305. You say that picture has changed in the last 12 months?

Mr. JOHNSON. Mr. Chenoweth, as I recall the hearings of the Mitchell subcommittee, they took place during November and December 1959.

Mr. CHENOWETH. That is right.

Mr. JOHNSON. NASA had barely been in existence for 1 year at that time. Contracting activity, of course, has increased many fold since then; 18 months have gone by since then. That really is what I had reference to.

At that time there was a great deal of resistance based upon a simple reading of the statute and the potentialities for bad interpretation and bad administration which it held.

Now during the past 18 months I firmly believe that a great deal of this has disappeared. We are not getting as many contractors who come in now and say, "We can't afford to contract with NASA because we are fearful of what will happen to our patents under section 305."

Our regulations have been widely publicized. We have done the best we could in the way of speaking before various groups, writing articles, and so forth, to publicize the actual administration of the law.

I think it is fair to say that we have adopted quite a liberal administration of the statute. We have taken every opportunity we could to make this liberal administration known to Congress so that if anyone wished to criticize us for it, they could.

We have not been criticized for it and this is the basis of my judgment, which I expressed to Mr. Fulton before, that business does, I think, feel that we have adopted a reasonable interpretation, given the law.

Mr. CHENOWETH. Would you say, Mr. Johnson, there are no cases where contractors have refrained from seeking contracts because of section 305?

Mr. JOHNSON. No, sir. There were several cases which we gave to the Mitchell subcommittee, you may recall, over a year ago. Since then I think we only have one documented instance. We have a letter here where that position was taken. Now this, I think, is an indication of how the resistance has gone down, because we had many more during the first year before NASA's administration of the act was well understood.

Mr. CHENOWETH. Is it possible that there might be cases where you would hear nothing about it? They would express no interest and you would know nothing about it?

Mr. JOHNSON. It is possible, but if at any time in the course of our procurement process a contractor or subcontractor is known to take the position that he will not deal with NASA because of fear of the patent consequences, this is supposed to be brought to my attention. There is an order outstanding on that, and we do the best we can to take care of those, because at that time we would like to sit down with them and explain how we would handle the situation.

Mr. CHENOWETH. If they have that attitude, they are certainly not going to publicize it too widely; they would just say nothing about it and you would never learn anything about it. I think that would be the natural situation.

Mr. JOHNSON. This is quite possible, except that during the first year they weren't reluctant to publicize their position. Many were

not.

Mr. FULTON. The conversation has developed on the basis of comparison. Indeed, the basis of comparison is not the total number of contracts of NASA compared with petitions for waiver filed. The basis is the number of contracts of NASA under which the contractor and his employees have made inventions or improvements, compared to the number of applications for waiver compiled.

Mr. O'BRIEN. I have some statistics on that if you would like to have them.

Mr. FULTON. Yes.

Mr. O'BRIEN. Today, as of May 23, we have received from our contractors 123 reported disclosures of inventions. Of this total 123, 67 were received from commercial contractors and 56 were received from the noncommercial type of contractor and of that 56 I might add 51 of those were received from the jet propulsion laboratory, which is a Government-owned facility operated by the California Institute of Technology.

As to the 123 which we have received, the Administrator has made determinations that the invention is the exclusive property of the Government in 90 of that number. We have 12 pending upon which determinations still have to be made.

Mr. O'BRIEN. Sir, they extend entirely across the industrial spectrum. We have had them in electronics, in propulsion, in structural embodiments of airframes or the like, in hydraulics, in materials. They have extended across

Mr. FULTON. They are then not peculiar to space alone, but would be inventions in the field that business ordinarily pursues? Mr. O'BRIEN. I think that is a fair statement.

Mr. DADDARIO. Will you proceed, Mr. Yeager, please?

Mr. YEAGER. In referring to some of your previous testimony, Mr. Johnson, I am not trying to imply any inconsistency on your part. I simply want to determine if the situation testified to before still

exists.

Mr. FULTON. Could we give him a copy of his statement that you are referring to? Do you want it, Mr. Johnson?

Mr. O'BRIEN. A copy of the prior statement?

Mr. JOHNSON. I have made so many prior statements to this committee

Mr. FULTON. We usually give it to them and let them see it. Mr. DADDARIO. If the necessity comes up, we will provide it. Mr. YEAGER. The testimony was to the effect that there was a good deal of difficulty of administration in the patent section. This was testified to several times and you indicated as follows:

If we may only exercise this discretion through the waiver process, we are very definitely limited as far as the contracting process is concerned. We have had to develop very complicated contractual provisions that require reporting of inventions to the agency, and provide a legal basis for the Administrator to make the factual determinations that he is required to make under 305 (a) of the act.

This is in last year's hearings, page 69. It was in response to a question.

Is this situation generally true?

Mr. FULTON. Mr. Johnson, here are the hearings.

Mr. JOHNSON. I can answer it, Mr. Fulton.

The situation is still the case and I am still of that opinion. Mr. YEAGER. It was also indicated that the patent contract clause which you had formulated at that time was an exceedingly difficult one. I think you indicated that this was probably the longest Government contract clause that has been developed in the history of the Government. You thought it was a good clause but a long and complicated one. Has your opinion changed on that?

Mr. JOHNSON. We have not changed that clause in any substantial respect. It is still a long and complicated one.

Mr. YEAGER. One other point, Mr. Johnson. This was a little more along the line of basic philosophy rather than your contract process. You said this:

I think we should bear in mind that the Government does not contract for inventions as such.

Mr. FULTON. What page?

Mr. YEAGER. Page 84.

It contracts for contracts for a useful piece of research and development work, it contracts for a product, a service of one kind or another. It does not simply go to the contractor and say, "Now, we want you to invent a patentable new article for us." Whether the Government does or does not acquire title to the invention, the Government still gets what it contracted for.

Do you now have any reason to feel differently?

Mr. JOHNSON. I am still of that opinion and, as I said in my statement today, I am not an advocate of the Government's taking title to inventions.

Mr. YEAGER. With regard to the case you documented there, can you tell us what case that was, where you had some difficulty? Mr. O'BRIEN. There is the Koppers Co., Inc., Pittsburgh, Pa. Mr. YEAGER. I wonder whether you could provide us with some information on that?

Mr. O'BRIEN. We can provide you with a copy of the letter if you like.

Mr. YEAGER. Can you tell us what the problem was?

Mr. O'BRIEN. The nature of the inquiry involved sealants. These are chemical, plastic-type sealants. They were to be used in the space environment. This was the interest of NASA in these sealants. This company, which has a notable commercial position in this field of technology, was approached and they preferred not to enter into any research and development with NASA because of the close parallel of our work our requirements closely paralleled their own commercial research work and for this reason they did not accept our invitation to submit a proposal.

Mr. YEAGER. I believe at the time the bill was up last year, when the omnibus bill was before the House, information had been provided us with regard to another instance, I believe, of a Texas Gravity Corp.

Mr. O'BRIEN. I have that, sir.

Mr. YEAGER. Can you fill us in on what the problem was there?
Mr. O'BRIEN. Yes, sir.

The interest of NASA was in connection with some of our moon shots. We wanted a precise gravity meter which would measure the gravitational field of the moon. This Texas company, Gravity Research I believe is their name, had considerable experience in developing precise meters for measuring gravitational field over the earth for oil exploration and they were approached to engage in this research contract for NASA and they denied their services.

Mr. YEAGER. Did you get somebody else to do that eventually? Mr. O'BRIEN. My recollection was that we did not. There are other means for achieving this result and the other means were explored, but we did not go into a program of this type of gravitational meter which would have been developed under this contract.

Mr. YEAGER. Have you had any difficulty in your contracting because of policies on patents involving solid propellants?

I believe United Technology Laboratories

Mr. O'BRIEN. We have a contract with them. There is some dispute as to whether or not the inventions made prior to our contract were actually reduced to practice and are therefore free from coverage by our act, but we have a contract with them.

Mr. YEAGER. It is a factual determination then?

Mr. O'BRIEN. Yes.

Mr. YEAGER. With regard to one other comment you made, Mr. Johnson, that NASA has interpreted section 305 rather liberally-and it is my understanding that is certainly the case it is true, is it not, that with a change of administration your interpretation might reasonably be changed?

Mr. JOHNSON. It is true that until interpretations of this act are reflected in, say court decisions, and they might be in some cases, it is possible that quite a different interpretation, quite different polices could be adapted under the present statute.

Mr. YEAGER. You might have to submit to a different treatment. Mr. JOHNSON. Very different.

Mr. YEAGER. That is all.

Mr. DADDARIO. Mr. Fulton.

Mr. FULTON. On the Koppers Co. situation in regard to sealant contracts, there are many other companies engaged in this same field, are there not?

Mr. O'BRIEN. Yes, sir.

Mr. FULTON. What was the history then of your contracting for sealant research and development after refusal to contract by Koppers, Inc.?

Mr. O'BRIEN. We had a request for quotations for the development of these organic sealants. This was merely one of the parties to whom this request for quotations was submitted. Quotations were received from other contractors having capabilities in this field. I think the contract was placed, sir. I am not certain of this.

Mr. FULTON. How many other companies were contacted for bids? Mr. O'BRIEN. I would have to provide that.

Mr. FULTON. I am trying to show the field is not a narrow one. If one company doesn't want to engage in this particular type of research and development, they may legitimately for their own business interests have the right to do it without endangering the research and development of the space effort of the United States, and I think that should be of record, in justice to the company. I don't think you should stop just where you are.

Mr. JOHNSON. I can assure you, Mr. Fulton, we did not mention this for the purpose of casting any reflections on the company.

Mr. FULTON. I agree, but I think the record affirmatively should show the opposite. I think that inference should be removed. So if you will put it of record so that we can see there are many other companies, as well as other companies in Pittsburgh-Robertson Co. is another company.

Mr. O'BRIEN. That is right.

I think it should be clear for the record, Mr. Fulton, that this whole letter be provided because I think there are matters in explanation of this company's position.

Mr. FULTON. I think we should have that.

(The letter referred to follows:)

OFFICE OF PROCUREMENT AND CONTRACTS,
George C. Marshall Space Flight Center,

KOPPERS CO., Inc., Pittsburgh, Pa., March 2, 1961.

National Aeronautics and Space Administration, Huntsville, Ala.

GENTLEMEN: We refer to the request for quotation No. TP-85150 issued January 30, 1961, entitled "Development of Organic Sealants," and directed to the chemical and dyestuffs division of our company. I do not believe that we will submit a proposal to you because of the patent policy and contract provisions required by the National Aeronautics and Space Act of 1958, section 305.

I should like to give you the reasoning for our position and explain the basis upon which we have performed Government research and development contracts in the past. It has been our policy to conduct research for the Government on a nonprofit basis, whereby benefits from such contracts could accrue to the com-