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. Prior art. 42 US.C. sec. 2185. 42 U.S.C. "SEC. 156. COMMISSION PATENT LICENSES.-The Com- Commission mission shall establish standard specifications upon which patent licenses. it may grant a patent license to use any patent held by sec. 2186. the Commission or declared to be affected with the public interest pursuant to subsection 153 a. Such a patent license shall not waive any of the other provisions of this Act. awards, and "SEC. 157. COMPENSATION, AWARDS, AND ROYALTIES. Compensation, "a. PATENT COMPENSATION BOARD.-The Commission shall designate a Patent Compensation Board to consider 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 sections may prohibit any such member from receiving compensation in respect of any particular matter which directly involves the Commission or in which the Com. mission 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 62 Stat. 697. Eligibility. 43-785 0 - 80 - 7 Standards. Monopolistic 42 U.S.C. sec. 2188. material or atomic energy, who is not entitled to com- "(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 importance 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 which such application is filed. 15 "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 14 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". 15 Public Law 87-206 (75 Stat. 475) (1961). sec. 11, added subsec. 4. the owner of the patent, the reasonable royalty shall be determined in accordance with section 157.16 financed 42 U.S.C. "SEC. 159. FEDERALLY FINANCED RESEARCH.-Nothing Federally in this Act shall affect the right of the Commission to research. require that patents granted on inventions made or con- sec. 2189. ceived during the course of federally financed research or operations, be assigned to the United States. clause. "SEC. 160. SAVING CLAUSE.-Any patent application on Javing which a patent was denied by the United States Patent 42 U.S.C. Office under sections 11 (a) (1), 11 (a) (2), or 11 (b) of sec. 2190. the Atomic Energy Act of 1946, 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. "CHAPTER 14. GENERAL AUTHORITY "SEC. 161. GENERAL PROVISIONS.-In the performance General of its functions the Commission is authorized to provisions 42 U.S.C. "a. establish advisory boards to advise with and ser. 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. 46. ments, or both, at any designated place. Witnesses subpenaed under this subsection shall be paid the 1 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. 17 See Atomic Energy Act of 1946, appendix B, infra, sec. 11. 27 Stat. 443. 80 Stat. 448, same fees and mileage as are paid witnesses in the district courts of the United States; 74 "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 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 Classification Act of 1949, as amended 19) whose position would be subject to the Classification Act of 1949, as amended, if such Act were applicable to such position, shall be paid a salary at a rate in excess of the rate payable under such Act for positions of equivalent difficulty or responsibility. Such rates of compensation may be adopted by the Commission as may be authorized by the Classification Act of 1949, as amended, as of the same date such rates are authorized for positions subject to such Act.20 The Commission shall make adequate provision for administrative review of any determination to dismiss any employee; "e. acquire such material, property, equipment, and facilities, establish or construct such buildings and facilities, and modify such buildings and facilities from time to time, as it may deem necessary, and construct, acquire, provide, or arrange for such facilities and services (at project sites where such facilities and services are not available) 21 for the housing, health, safety, welfare, and recreation of personnel employed by the Commission as it may deem necessary, subject to the provisions of section 174: Provided, however, That in the communities owned by 18 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 Febru ary 11. 1893. shall apply with respect to any individual who specifically claims such privilege." 19 Public Law 87-793 (76 Stat. 832) (1962), sec. 1001 (g), added the words "up to a limit of the highest rate of grade 18 of the General Schedule of the Classification Act of 1949. as amended". Prior to this Amendment a limitation of $19.000 had been imposed by Public Law 85-287 (71 Stat. 612) (1957). sec. 4. 20 Public Law 85-681 (72 Stat. 633) (1968), sec. —, amended subsec. 161 d. by inserting this sentence. 21 Public Law 95-91 (91 Stat 565) (1977), sec. 709(c)(2), provided that "Section 161(d) of the Atomic Energy Act of 1954 shall not apply to functions transferred by this Act." (Department of Energy Organization Act). the Commission, the Commission is authorized to grant privileges, leases and permits upon adjusted terms which (at the time of the initial grant of any privilege, grant, lease, or permit, or renewal thereof, or in order to avoid inequities or undue hardship prior to the sale by the United States of property affected by such grant) 22 are fair and reasonable to responsible persons to operate commercial businesses without advertising and without advertising (sic) and without securing competitive bids, but taking into consideration, in addition to the price, and among other things (1) the quality and type of services required by the residents of the community, (2) the experience of each concession applicant in the community and its surrounding area, (3) the ability of the concession applicant to meet the needs of the community, and (4) the contribution the concession applicant has made or will make to the other activities and general welfare of the community; 23 "f. with the consent of the agency concerned, utilize or employ the services of personnel of any Government agency or any State or local government, or voluntary or uncompensated personnel, to perform such functions on its behalf as may appear desirable; "g. acquire, purchase, lease, and hold real and personal property, including patents, as agent of and on behalf of the United States, subject to the provisions of section 174, and to sell, lease, grant, and dispose of such real and personal property as provided in this Act: "h. consider in a single application one or more of the activities for which a license is required by this Act, combine in a single license one or more of such activities, and permit the applicant or licensee to incorporate by reference pertinent information already filed with the Commission; "i. prescribe such regulations or orders as it may deem necessary (1) to protect Restricted Data received by any person in connection with any activity authorized pursuant to this Act, (2) to guard against the loss or diversion of any special nuclear material acquired by any person pursuant to section 53 or produced by any person in connection with any activity authorized pursuant to this Public Law 85-162 (71 Stat. 403) (1957), sec. 201, added the clause "(at the time of the initial grant of any privilege grant, lease, or permit, or renewal thereof, or in order to avoid inequities or undue hardship prior to the sale by the United States of property affected by such grant". 78 Public Law 84-722 (70 Stat. 553) (1956), amended sec. 161 e. by adding the proviso clause. 24 The text of Executive Order 9816, providing for the transfer of properties and personnel of the Manhattan Engineer District to the Atomic Energy Commission on January 1, 1947, will be found in appendix F. |