Again, it is not a test that you can apply by rule of thumb any more than you can apply the reasonable man test.

Mr. WILLIS. One thing is certain: That this proposed bill does not define what an invention is.

Mr. STEDMAN. This bill does not provide a real test; it is an illusory test. We do not think it achieves certainty and if it does produce certainty it is inconsistent with the basic objectives of the statute. It would be like defining a reasonable man as one who is 6 feet tall and who has red hair.

Mr. WILLIS. The law at the present time says:

Any person or persons who has or have invented or discovered any new and useful art shall be entitled to a patent.

It seems to me that that is clear enough and we are leaving to the courts for it to be determined on its own bottom and its own facts. Mr. STEDMAN. I think the objective as set forth in the law as it reads now is perfectly clear. The only problem you have is the specific application of it in an individual case, how a judge views specific facts. The test is clear enough. Whether you can make it any clearer I do not know, but I do not think this bill does it.

Mr. BRYSON. It is desirable to have a spelled-out definition, but you have some doubt whether or not you can ever attain it?

Mr. STEDMAN. It would be very desirable if you had an automatic test, by which you could say a patent is valid or invalid. In the present situation we have patents issued, and then a great number of them are held invalid. There is never any certainty as to whether they are valid or not until you have been through an expensive lawsuit. I think we could all agree that that is an undesirable situation.

Mr. WILLIS. Do you think the words could be found with which we could reduce it to such simplicity that we could do without lawsuits in this elusive field of patents? How can we with words say what shall be patentable when the very word "patent" means something that we do not know what it is? Do you not think that some latitude should be left to the courts?

Mr. STEDMAN. I think there should be, except that there might be ways in which perhaps a better evaluation could be made.

Mr. WILLIS. But the point I am making is that you are not suggesting how that should be done?

Mr. STEDMAN. Not in connection with this bill. We would be glad to discuss that at any time that you would like to take that up.

In that connection, if you should be interested in reading it, I wrote an article a couple of years ago and I have some reprints of it in which I go into this question at some length. The article is entitled, "Invention and Public Policy," and it was printed in the Duke University Law School Law and Contemporary Problems.

Mr. BRYSON. We would be glad to have it because if you have difficulty as a specialist in this field, how much more difficulty is presented to the members of this committee, because we are laymen, so far as the field of patents is concerned.

Mr. BOGGS. Mr. Chairman, if that is not too long an article, I wonder if we could not put that in the appendix of the hearings?

Mr. BRYSON. Yes.

Mr. STEDMAN. I would be glad to supply it and you can decide whether it is too long to include in the record.

(The article referred to, Invention and Public Policy, is available in the committee files.)

Mr. STEDMAN, I think there is one basic difficulty that the patent system faces that makes the problem one which both the Patent Office and the courts inevitably find it difficult to deal with. That is the fact that you have this situation in which exactly the same legal rights, the same reward, is given to everybody, irrespective to whether his contribution is a really important, really extensive one or only a slight improvement.

You have a situation where the court and the Patent Office, both of them, are faced with the problem where a man has made some sort of contribution-maybe it is an extensive one, maybe it is a slight one. In any event, they are compelled under the law to say that he gets either a great deal-namely, a 17-year exclusive right— or he does not get anything at all.

Faced with that situation the person is very hard put to know what to do. Should we say he ought to have something in between? Should we say we will knock him out entirely, deprive him of everything, or shall we say we will pay him more than he is entitled to? That is a very difficult decision to make.

It is as if the law provided that in all court actions in any case where the person is held guilty, the court or the judge may allow $10,000 damages irrespective of whether it consisted of hitting somebody with an automobile or leaving a bicycle out on the sidewalk so that a person would stumble on it. I think there is a little of that that faces both the Patent Office and the courts in dealing with patents because they are compelled under the law to give exactly the same reward in every case, irrespective of whether the man has done something extremely significant or something very slight.

Mr. BRYSON. It is all or nothing?

Mr. STEDMAN. That is right.

Mr. BRYSON. Somewhat comparable to the different rules that obtain in the different States as to comparative negligence.

Mr. STEDMAN. That is right.

Mr. BRYSON. In our State contributory negligence is a natural bar to recovery. In Georgia, our neighboring State, the rule of comparative negligence is in effect.

Mr. STEDMAN. Some countries, particularly Germany, have had what they call a petty patent, or Gebrauchsmuster, which is a patent for a short period of time and which does not give as extensive rights as the main patent does, but which enables a person who has made a contribution entitled to something, but not entitled to something that you get with the major type of patent. Whether that would be feasible in the United States, I do not know.

There has been a lot of discussion on that pro and con, but that would be one approach to it.

Mr. BRYSON. We recognize your ability and we are impressed with Mr. Hackley's ability. What is the difference between you and Mr. Hackley on this?

Mr. STEDMAN. I believe we are in agreement.

Mr. HACKLEY. We are in agreement on this and I would like to add that I feel with Mr. Stedman that the time is extremely right for this committee, and I think it is the appropriate place for it to be done,

to undergo a thorough investigation of the patent system to determine what its original purposes were and how to accomplish those purposes. I am speaking now, not as a Department of Justice representative in charge of the Patent Section, but as a lawyer who has practiced patent law almost exclusively for 20 years and largely in behalf of the small manufacturer or original inventor. I think that it could be demonstrated to this committee that the system as it was conceived is today not operating for its original purpose of aiding and protecting and inspiring invention among individuals. To a large extent, and certainly insofar as the enforcement of patent rights is concerned, and that is really all that a patent conveys-it is a license to a lawsuit. The litigation of patents is wholly prohibitive to the average patent owner and the attrition of litigation on patent owners is one method of avoiding the respect of patent monopoly which industry should normally accord. There is much that this committee can do, I think, both by way of investigation and by possible major fundamental improvements in the system.

Do you agree with that Mr. Stedman?

Mr. STEDMAN. Yes. I might add that we have a patent system in which our present law was put into effect in 1836. Since that time there have been no basic changes whatsoever. I think that we can all agree that our economy has changed considerably from 1836 up to the present time. I think that it is a subject on which some committee somewhere might very well go in and take a fresh look at the patent system and say, "Now, is this system that we worked out and set up in 1836 the system that is appropriate to the advancement of the arts and sciences in 1949?" Maybe the answer is "yes," and maybe the answer is that they did a beautiful job and we have no reason to change it at all. Maybe there are certain things that ought to be changed.

Those are things that you can get at, not on the basis of abstract discussion or a priori discussion but only by digging down into the whole system to see what it is accomplishing and to see what can be done to make it carry out the constitutional purposes even better. Mr. HACKLEY. I think our feeling on that is, Mr. Chairman, that while there is a great deal to be said either pro or con on many of these bills before you, at best they are only whittling away at the fringes of the real problem before you. We would feel very much that the committee should get at the roots of the issue and then work

out.

Mr. WILLIS. Would that include the bill we have with respect to infringement?

Mr. HACKLEY. Yes.

Mr. BRYSON. The patent system has been a little like a river finding its course. You might be interested to know, if you do not know already, that our chairman, Mr. Celler, feels very much the way you gentlemen have spoken this morning and has indicated his desire to have that work done.

Mr. STEDMAN. I did not know that.

Mr. BRYSON. He is very enthusiastic about it.

Mr. HACKLEY. As you gentlemen probably are aware, an attempt was made by two executively appointed committees to go into this

problem and one committee has reported but the other, to date, not.

has

President Roosevelt appointed the National Planning Commission in the early forties and it came up with a series of comprehensive reports on which there can be agreement and disagreement, dealing with some of the basic questions which I perceive are present. President Truman appointed a committee which has been generally referred to as the Wallace committee, during the time of the Secretary Wallace regime in the Department of Commerce in which the committee went along the same route. That committee to date has not reported; has it, John?

Mr. STEDMAN. I think not.

Mr. BRYSON. Is it still in being?

Mr. HACKLEY. As far as I know it technically exists. As something for you to seize on as an affirmative indication of the area of the problem, the reports of the National Patent Planning Commission filed in 1942, 1943, and 1944 are at least available.

Mr. WILLIS. Did not the Hoover Commission have anything to say about the Patent Department?

Mr. HACKLEY. Up to now, nothing that I know of. I know they did not come in and investigate me.

Mr. BRYSON. That is one of the few subjects they did not cover. Mr. BOGGS. The Hoover Commission probably did not go into the Justice Department's Patent Division, but it did take a look at the Patent Office, however, and gave it a rather clean bill of health, as I recall it.

Mr. BRYSON. The Commissioner of Patents made some statement. Mr. BERNHARDT. That was with reference to a management survey, Mr. Bryson, made by a concern that was hired to do that job.

Mr. BRYSON. I believe that was an independent contract.

Mr. HACKLEY. But it did not approach the object or subject of patents.

Mr. BRYSON. It pointed out how the examiners were sitting in each other's laps.

Mr. HACKLEY. That is a crying shame.

Mr. BRYSON. By the way, we tried to work out a time to get down there as a subcommittee and look them over.

Mr. HACKLEY. You particularly ought to go down there on a day like this, Mr. Chairman, when you can appreciate on a hot day what conditions they work under.

Mr. BRYSON. I think it is incumbent on us to do that. An hour spent there would be equivalent to several hours of testimony.

Mr. BERNHARDT. Would Friday be convenient to the members, Mr. Chairman? We have all of the members here but one.

Mr. WILLIS. I do not think Friday would be a good day.

Mr. BRYSON. Let us put that on our agenda; and then, too, we had agreed to visit the Copyright Office.

Mr. TACKETT. Do we have any meeting set for next Wednesday? Mr. BERNHARDT. We do.

Mr. WILLIS. I think it would be most constructive to see how patents and copyrights are processed.

Mr. BRYSON. Are there any further questions of Mr. Stedman?
Mr. TACKETT. I have one question.

Mr. BRYSON. Go right ahead.

Mr. TACKETT. Has the Justice Department made any study of their own, relative to the problem that is now confronting us?

Mr. STEDMAN. The problem of invention?

Mr. TACKETT. Yes.

Mr. STEDMAN. I do not know; Mr. Hackley could tell you whether they have. I do not recall at the time I was with Claims that any basic studies were made of this type of problem, unless there has been a recent one.

Mr. HACKLEY. No; except as a general part of the work we are continually confronted with it.

Mr. TACKETT. What would be in your opinion the best system to be adopted by a subcommittee to make such a study and receive the proper findings on which to base the kind of legislation which you folks have in mind?

Mr. STEDMAN. My feeling is that it is something that you cannot do in an easy way.

Mr. TACKETT. No.

Mr. STEDMAN. It is something that you do by mapping out a program of what you are trying to find out, which would include trying to get information on how inventive activities are carried on by small inventors, by research organizations, by corporations that have their research departments, and so forth. That would simply be a matter of getting people familiar with those things to come in and tell you how they work, keeping in mind all the time what your objective is when you are viewing this activities; and what spurs them on and what activities are affected; look to see how best you could stimulate them to further opportunity, again consistent with not letting the thing become an Old Man of the Sea which becomes a burden on the economy from the standpoint of free enterprise.

Mr. TACKETT. Has the system, from the standpoint of our patent system, become just about a monopoly for people such as the laboratory that spends most of its time in an effort to bring about new discoveries, and has it just about precluded the little man?

Mr. STEDMAN. I do not have any specific statistics on that, but the impression I have is that it has become much more of a cooperative and large investment type of activity today and less the garret in

ventor.

The garret inventor of the old days is probably pretty much gone. He will still exist and he will still continue to make inventions and get patents. I suspect, however, that the significance of what he does is much smaller than it was at one time. It may be that the technology of today is of such a nature that that is inevitable. Those are the things for a commitee to find out.

Mr. TACKETT. I recall there was a fellow down in my home area when they started the road-building program back a few years ago. He was just a common ordinary worker but he figured out a system that if the blade picked up a rock it would be automatically crushed and distributed on the road in the form of gravel. He knew he did not have the money with which to get the invention patented, but some company from California came out there, brought his rights and turned it over to an invention research development group that they had. Anyway, it is now working everywhere and the fellow did not get but day laborer pay for his efforts.