Committee Prints

FOREWORD

This study, by Catherine S. Corry of the Legislative Reference Service, Library of Congress, was prepared for the Subcommittee on Patents, Trademarks, and Copyrights as part of its study of the United States patent system, conducted pursuant to Senate Resolutions 55 and 236 of the 85th Congress. It was prepared under the supervision of John C. Stedman, associate counsel for the subcommittee, and is one of several historical digests covering important and recurring congressional proposals for amending the patent laws.

Ever since the Paper Bag decision in 1908, permitting a patentee to enforce his patent even though he was not himself using the invention, recurrent compulsory licensing proposals have been presented to Congress. The conditions under which such licenses would be required have varied considerably. They range from across-the-board compulsory licensing, to proposals designed to prevent monopoly, facilitate the use of improvements, prevent misuse and suppression, and promote the national defense. Some proposals are directed to specific fields, such as atomic energy, foreign-owned patents, Government-owned patents, and so on.

Nothwithstanding these varied and vigorous efforts, and despite the prevalence of compulsory licensing laws in many major countries, actual legislation in this field has been scant. Even so, there are large areas today in which patents cannot be used to exclude others from using the inventions covered by them. Thus, use by and for the Government is permitted, subject to payment of reasonable compensation. The same is true in most of the atomic energy field and under many antitrust judgments. In some antitrust judgments and where patents have been misused, even compensation may be denied. Government-owned patents are generally and freely available for use. Whether these policies of the past should be the policies of the future, is a question that continues to come up for reexamination, most frequently from two disparate standpoints. On the one hand, the question arises whether, under certain circumstances, our patent laws should impose stricter limits than now exist upon the broad power to exclude. On the other hand, there are those who question whether the Government's unvarying policy of making its patented technology freely available to all users, is always in the public interest. In some circumstances, they suggest, that interest might better be served by more selective or restrictive licensing or by the collection of royalties. These questions press insistently for answer as more and more patents are concentrated in corporate hands and as Government research activity and consequent patent ownership steadily increase. Consequently, the present study, which traces the legislative efforts of the past and thereby provides insight into the problems of the present, is both timely and significant.

This study is presented as a result of the work of Miss Corry for the consideration of the members of the subcommittee. It does not represent any conclusion of the subcommittee or its members. JOSEPH C. O'MAHONEY,

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