in various fields must pass the scrutiny of committees of their colleagues set up to allocate available funds. Patents are taken as an incident to work performed by some Federal agencies, although they are of lesser importance in the work sponsored by the Public Health Service and by the National Science Foundation, as they are for the scientific activity sponsored by private foundations. Generally, the product produced by the investigator becomes part of the public domain of technical knowledge. 3. Patents as instruments of interfirm competition Although patenting has not kept pace with the expansion of scientific and engineering research, and has failed to achieve its constitutional objective of promoting the progress of science and useful arts, its continued use has been sustained because of its importance as an instrument of business competition. In this realm there belong the cross-licensing and trading in patents and other comparable business transactions which form parts of complicated networks of interfirm agreements both within and among countries. 4. Complexities of the patenting process Both the administration of the Patent Office and adjudication of patent cases in the courts have become so complicated as to present formidable and costly obstacles to the use of the patent system, especially by individual persons. This is the inescapable inference from testimony given before the Subcommittee on Patents of the United States Senate.6 68 There may well be some purely administrative causes for these developments. Still, there is no avoiding the fact that the problems of identifying an "inventor" and an "invention" under modern conditions impose formidable difficulties for both the Patent Office and the courts. From this standpoint, major difficulties of operating the patent system must result from the formal attempt to treat today's producers of technical knowledge as though they were "inventors" of 1800. C. REQUIREMENTS FOR THE PROMOTION OF SCIENCE AND THE USEFUL ARTS UNDER PRESENT CONDITIONS The supply of technical knowledge and the means for its production are major resources for the whole society. How is the constitutional mandate "to promote science and the useful arts" to be implemented under present conditions of the production of knowledge in nonprofit institutions and in industry? 1. Support for the production of knowledge as an end in itself The weight of evidence is strongly in favor of the following as the most efficient means toward this end: ample financial resources for the universities and other nonprofit institutions which operate to produce knowledge as an end in itself; maximum freedom for initiative by the investigator as a guiding principle of the allocation of funds and decision-making in institutions; encouragement of free publication and other scientific communication as a point of principle. There is no place in such a scheme of things for the operation of any system that reserves to specified individuals the exclusive property rights, patented or otherwise, in knowledge thus developed. The See hearings on the American patent system, before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 84th Cong., 1st sess. (October 10-12, 1955). data available to this writer indicate that the introduction of patenting into scientific institutions has damaged their productiveness. 2. Industrial research with and without patents Industrial firms, on the other hand, will continue to operate and expand their research facilities in order to serve their particular competitive requirements, whether a patent system exists or not. These units, and others, will continue to rely primarily on the nonprofit research institutions for expansion of the underlying body of science from which technological application is nourished. As for their own research, it is true that industrial firms have been able to utilize the patent system as a device to protect their property rights in the knowledge they develop. Nevertheless, in the writer's judgment, it seems likely that industrial firms would continue to operate and expand their own industrial research facilities even if the patent right were no longer available." 3. Recognition to scientists and technologists Ways are wanting for giving public recognition to scientists and engineers, whose work contributes significantly to the general welfare. It would be appropriate and useful, in the writer's opinion, to establish a system of public honors and awards to recognize and reward notable achievements in the production and application of technical knowledge. An annual program of honors and awards could be administered by an existing body like the National Academy of Science. By this means it would also be possible to give recognition to those people who continue to function as independent inventors, outside of the employed occupations. The patent system does not serve these functions. An abundance of testimony before the Senate Subcommittee on Patents, Trademarks, and Copyrights indicates that individual scientists, engineers, and the group of independent inventors, have been the very people least served by the patent system as it now operates. Summary In summary: The evidence and analyses of this study indicate that there is a growing disharmony between the efficient production of new technical knowledge and the effort, through the patent system, to treat that knowledge under property relations. This disharmony is intensified as the division of labor in science increases and, as a consequence, the conduct of inquiry becomes increasingly social production that requires the integration of interdependent technical skills. These developments make it increasingly difficult to specify what is new, what is invention, and who is an inventor. The effects from these factors would not be essentially altered, in this writer's opinion, by variation in the rules for establishing property rights to knowledge. The effort to operate a patent system formulated for the technological conditions of a century ago has proved to be increasingly awkward. The problems of patent-system operation, however, do not stem primarily from administrative shortcomings or from the absence of ingenuity among the able attorneys, judges, and Patent Office staffs who administer the system. Rather, they stem from the inability to apply the conceptions of a bygone era to the contemporary conditions "The writer regards the cases of IBM and A. T. & T. (ch. X) as a crucial test of this question. under which technical knowledge is produced. At the same time there can be little doubt that the patent system has been a useful instrument in industrial management's competitive process. In this investigation, attention has been focused on the problem: Does the patent system now fulfill the constitutional purpose of promoting science and the useful arts, as indicated by the operation of industrial and nonprofit research laboratories? Ön balance, based upon the study of selected typical industrial and nonprofit research laboratories, the answer is "No." The patent system in the contemporary scene has not, as a rule, promoted conditions that facilitate research in science or the industrial arts. On the contrary: In universities the effect of patenting pressures has been to interpose managerial controls and commercial pressures where free, uninhibited inquiry is needed to promote the flow of science. In industrial laboratories research in the useful arts has been expanded rapidly, without a parallel growth in patenting activity. Moreover, the experience of a few firms, whose patent privileges have been recently abridged, indicates that these managements maintain and expand their industrial research in order to cope with problems of product and cost competition. The development of research in these and similar firms will bear close watching. With or without a patent system, the efficient pursuit of knowledge in the universities and other nonprofit institutions will continue, within the limits of available resources, so long as the production of knowledge is treated as a sufficient end in itself. Industrial firms will continue to enlarge their research in the useful arts as dictated by competitive needs, with or without patent privileges. Henceforth, in the judgment of this writer, the main impetus for the promotion of science and the useful arts will come, not from the patent system, but from forces and factors that lie outside that system. |