Monday, July 06, 2009

The "patent control policy" of World War II and US 2,852,687

The PBS show "History Detectives" had an episode relevant to patents which aired in the NJ area on 5 July 09. The patent in question was US 2,852,687 titled Isotope separating apparatus. which issued to Michael K. Kudravetz and Harold B.
Greene on September 16, 1958. The technology relates to an improvement in the calutron, a magnetic device to separate ions of isotopes, here related to isolation of U-235.

One can find an abstract at osti:

This patent relates to control systems for a calutron and, in particular, describes an electro-mechanical system for interrupting the collection of charged particles when the ratio between the two isotopes being received deviates from a predetermined value. One embodiment of the invention includes means responsive to the ratio between two isotopes being received for opening a normally closed shutter over the receiver entrance when the isotope ratio is the desired value. In another form of the invention the collection operation is interrupted by changing the beam accelerating voltage to deflect the ion beam away from the receiver.

The main point of the episode wasn't the technology per se, but the delay in release of the issued patent, relative to its filing date of Feb. 11, 1945. The show mentioned the extreme secrecy surrounding the work at Oak Ridge, including a sign stating "Your pen and tongue can be enemy weapons," the sense of which could apply to commercial, industrial IP in the year 2009.

Professor Alex Wellerstein made an appearance on the show. His article in Isis,
2008, 99: 57–87, titled Patenting the Bomb contains an abstract which patent attorneys might find curious:

During the course of the Manhattan Project, the U.S. government secretly attempted to acquire a monopoly on the patent rights for inventions used in the production of nuclear weapons and nuclear energy. The use of patents as a system of control, while common for more mundane technologies, would seem at first glance to conflict with the regimes of secrecy that have traditionally been associated with nuclear weapons. In explaining the origins and operations of the Manhattan Project patent system, though, this essay argues that the utilization of patents was an ad hoc attempt at legal control of the atomic bomb by Manhattan Project administrators, focused on the monopolistic aspects of the patent system and preexisting patent secrecy legislation. From the present perspective, using patents as a method of control for such weapons seems inadequate, if not unnecessary; but at the time, when the bomb was a new and essentially unregulated technology, patents played an important role in the thinking of project administrators concerned with meaningful postwar control of the bomb.

The article itself contains the text:

[Vannevar] Bush also believed that patent control would facilitate international control of atomic energy. As he wrote to Sir John Anderson of the Privy Council Office in September 1942, explaining his attitude toward patent control:

I have the strong feeling that much greater progress will be made if each government has in its hands a substantial part of the patent rights arising within the respective countries, for the problem of arriving at sound international relationships will then be much less likely to be complicated by reason of private interest in the outcome. . . . I am inclined to believe that this
patent control in the hands of government will prove to be sufficiently strong so that this series of discoveries and inventions cannot be practiced at any point within our respective countries without government license based on the patent status. It would of course be entirely possible to superpose other controls, but the matter becomes somewhat simpler to handle if this is not necessary.27

The patent system, as Bush knew and approved, was about technological control. As a patent system advocate, Bush wanted to streamline and improve the system so that small inventors could properly protect their interests against big corporations; as a leader of wartime research, he was happy to use the strength of the government and of the patent system to control what he did not think should be encouraged to function independently in the marketplace. Bush was familiar with patents by the time he was head of the NDRC—his later autobiography describes in detail numerous patent battles in the early radio industry where he made his name—and when confronted with the new question of atomic energy, he understandably reached for the familiar.

IPBiz notes that requiring government employees to assign their rights (according to the tv show, the patent in question went for $1.00) is a different question from NOT publishing the issued patent, the question at issue in the tv show.

The ISIS article contained some flowery academic language:

The “lone inventor” is a common trope used in discussions of patent law, in the same way that the “creative genius” is invoked in discussions of copyright. He is a character who represents the hypothetical beneficiary of a patent system, a legal fiction often trotted out as a rhetorical heuristic for comparing the effects of different interpretations of patent law. And even though it has been more than a century since the corporation has replaced the individual inventor as the primary beneficiary of patents (and copyrights), the “lone inventor” continues to be the “little guy” that politicians claim to care about and the reason to keep incentive-giving patent laws strong.29 When the patentable subject matter is a
nuclear bomb, however, the “lone inventor” turns into something else altogether.

The article did reach the influence of World War I on patents:

Fortunately for Bush, however, U.S. patent law had been specifically amended so as to permit patent applications to be ordered held in secret in extraordinary circumstances. The oiginal legislation had been passed during World War I to allow patents with military implications to be declared “secret” during wartime, and in 1940 and 1941 the statute had been revised to apply during peacetime as well and to have stiffer penalties associated with the violation of secrecy orders (the original penalty having been simply loss of patent title).33 The result of this legislative action was Public Law No. 700, a bill that allowed the Patent Office (via the authority of the Commissioner of Patents) to declare patent applications secret, preventing both their publication and access in the United States and
also blocking their filing outside of the country. The question of whether the application would be granted was put on hold until the secrecy order had been lifted. If the patent was eventually granted, the inventor could then work out problems of interference with subsequently granted patents and could sue for compensation if the government had used the patent in the interim.

Wellerstein got into "the French problem":

(“The French problem” would evolve into a rather trying diplomatic
snafu later in the war, when it was discovered, to the horror of the Americans, that the British had made a secret agreement with the French scientists to share nuclear information in exchange for a guarantee to use the French patents in the postwar period.34)

Wellerstein also brought up Glenn Seaborg:

The second case, almost completely neglected in the secondary literature, is that of the plutonium researchers Glenn T. Seaborg, Emilio Segre`, Arthur C. Wahl, and Joseph W. Kennedy—a tangled three-body problem of scientists, university administrators, and the OSRD. The patents whose ownership was under dispute were extremely lucrative: they covered the production and basic chemistry of plutonium, as well as its basic use as a fissile material. Since the work had been performed before any of the scientists were under OSRD contract, and while they were in the employ of the University of California, the assignment of the patent rights was more murky than Bush or Lavender would have liked. Here patent control proved a difficult business, and the name of Roosevelt did not prove to be the universal balm Bush had hoped it would be. Outside of the OSRD, Bush’s influence was far more limited than he liked; moreover, this was not an issue he could simply resolve by his standard contract system, and University of California was a savvy and interested negotiator, well aware of the long-term benefits to be derived from
patents developed by its scientists
All of the parties involved in the Seaborg dispute were looking to the future: the scientists wanted assurances of postwar research funding; the University of California saw future revenues in a hypothetical commercial nuclear power industry (and perhaps in radioisotope production); and Bush wanted to maintain his regime of technological control (he made no distinction between civilian and military patents during the war itself) and was not about to let any university administrators stand in his way. Because both the inventors and the Regents of the University of California were looking to a postwar world, the appeal to the requirements of wartime that worked so well with contractors had far less traction; and Bush, in Washington, D.C., was far away—literally, figuratively, and, in many ways, legally.

Of compensation ==>

Though he [Bush] tried to impress Roosevelt’s intentions ["patent control policy"] on the other parties, in terms of the law the situation was far from clear cut and required months of negotiations.57 Both the University of California and the scientists eventually relinquished their claims for the remainder of the war, though the scientists were later compensated $100,000 each for the patents by the Atomic Energy Commission (AEC)—a pittance in comparison to the worth of the patents, but much more than the $1 compensation they would have received under OSRD policy.58

Of delays between filing and issuance==>

The longest delay on any atomic patent that has since been issued—that is, on the patent that has thus far spent the longest time under a secrecy order—was nearly sixty years. This patent, filed in September 1945 but not granted until July 2004, was for a chemical process related to gaseous diffusion research done at Oak Ridge during the war.61

The last two footnotes of the Isis article relate to Walterscheid:

73 For a full discussion of Atomic Energy Commission and Department of Energy patent policies—and struggles—throughout the Cold War see Edward C. Walterscheid, “The Need for a Uniform Government Patent Policy: The D.O.E. Example,” Harvard Journal of Law and Technology, 1990, 3:103–166.

74 A succinct example of precisely how incomprehensible it became can be found in Walterscheid, “Need for a Uniform Government Patent Policy.” This former Deputy Laboratory Counsel for Los Alamos National Laboratory insists numerous times that the historical MED/AEC/DOE patent policies make little sense from a legal point of view, since “ownership of patent rights has very little to do with protection of national security” (p. 158). Such a point of view, though, had not yet solidified in the years of the Manhattan Project.

**Of the preparation of the tv show-->


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