September 22, 1970
Page 33097
Mr. COOPER. Mr. President, I call up two amendments which were to be offered by the Senator from Tennessee (Mr. BAKER), but which have not yet been called up.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read the amendment, as follows:
On page 90, line 24, after the word "knowhow" insert the following: "which is being used or intended for public or commercial use and".
Mr. COOPER. Mr. President, it was necessary for the junior Senator from Tennessee (Mr. BAKER) to leave the city. Prior to his departure he sent to the desk two amendments to modify section 309 regarding mandatory licensing. I understand he discussed the amendments with the manager of the bill (Mr. MUSKIE) and the manager on the minority side (Mr. BOGGS). I believe there is no opposition to the amendments. The Senator from Tennessee asked if I would call the amendments up for adoption and include for the RECORD his statement in support of the amendments.
To the extent that section 309 covers all know-how and trade secrets known to the owner of my patent, know-how or trade secret, it is too broad to be meaningful. It is important that any know-how or trade secrets used in the manufacture of commercially available devices, vehicles on engines be licensed, but it would be unworkable to require all industries to disclose all know-how and trade secrets, whether used commercially or not.
Thus, the section should be limited to know-how or trade secrets used commercially, whether or not the section is limited to the industries covered in title II.
Mr. MUSKIE. Mr. President, I discussed this amendment with the Senator from Tennessee and the Senator from Kentucky. The American Bar Association patents section raised this question. It is a technical matter. I am perfectly willing to accept the amendment, and also the next amendment which I think the Senator will offer. I think there is no objection on the part of the committee.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. MUSKIE. I yield back my time.
Mr. COOPER. I yield back my time.
The PRESIDING OFFICER. All time on the amendment having been yielded back, the question is on agreeing to the amendment offered by the Senator from Kentucky.
The amendment was agreed to.
Mr. COOPER. Mr. President, I send to the desk the other amendment which was intended to be offered by the Senator from Tennessee (Mr. BAKER).
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read the amendment, as follows:
On page 92, beginning at line 7: strike out the subsection (c) and subsection (d) and insert the following new subsections:
"(c) If the owner of any United States letters patent, patent application, trade secret, or know-how and any applicant for a license thereunder pursuant to subsection (a) are unable to agree upon reasonable royalties to be charged under such license or upon any other provision which might be included in such license pursuant to subsection (b), either party may seek a declaration of the amount of royalties to be charged or any other provision of such license in an action for declaratory judgment under Sections 2201 and 2202 of Title 28 of the United States
Code in a court of competent jurisdiction regardless of the amount in controversy or the citizenship of the parties.
"(d) The court, in issuing any order or judgment on any action brought pursuant to subsection (c) of this section may award or apportion the cost of litigation, including reasonable attorney and expert witness fees whenever the court determines that such action will do justice in the case.
“(e) Nothing in this section shall be construed to grant an exemption from the antitrust laws of the United States or any judgments, ordered or decreed thereunder."
Mr. COOPER. Mr. President, this is the other amendment that was to have been offered by the junior Senator from Tennessee (Mr. BAKER). He asked me if I would call it up. He informed me that he had discussed it with the manager of the bill (Mr. MUSKIE) and the manager on the minority side (Mr. BOGGS).
Senator BAKER has an explanation of some length, which I shall not read in full but summarize it in substance, as I understand it. Under this section of the bill, if there were a matter which came to arbitration as to royalties, it would be resolved through the rules of the American Arbitration Association. Senator BAKER's amendment would provide for substituting a judicial declaratory judgment approach to resolve royalty disputes in the place of the compulsory arbitration route.
I ask unanimous consent that the complete statement of the Senator from Tennessee be printed in the RECORD.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
DECLARATORY JUDGMENT ROUTE
Section 309(c) of the bill, as amended in Committee, deviates from other provisions of the bill with respect to the manner in which disputes arising under the act should be resolved. It heaps compulsory arbitration upon compulsory licensing, without any right of judicial review.
The bill provides for arbitration under the rules of the American Arbitration Association then in effect, Congress has no control over those rules and they may be changed over night without Congressional control or approval. On the other hand, the rules under which the federal judiciary operates are subject to control by Congress and the procedures available in the Federal Courts under the declaratory judgment statute are well established and adapted to resolve disputes over such things as royalty rates and protection of know-how and trade secrets against disclosure to unauthorized persons.
The purpose of substituting the declaratory judgment route for the compulsory arbitration route is not only to utilize well known, established procedures in the Federal Courts but also to establish legal precedents to aid in the implementation of the legislation.
Utilization of the federal judiciary will also maintain a balance between the Executive Branch and the judiciary in implementation of all of the provisions of the act instead of relegating the determination of legal relationships to lay arbiters – outside the framework of our national government.
The provision for awarding or allocating costs, attorney and expert witness fees is substantially the same as that set forth in Section 304(b) with respect to citizen suits and allows for the application of equitable principles in allocating such costs to prevent injustice.
Mr. MUSKIE. Mr. President, I have already indicated that I have discussed this matter with the Senator from Tennessee and the Senator from Kentucky. This is another amendment in response to questions raised by the section of the American Bar Association dealing with this subject. I think it makes sense. I support the amendment, and I yield back the remainder of my time.
The PRESIDING OFFICER. Does the Senator from Kentucky yield back the remainder of his time?
Mr. COOPER. I yield back the remainder of my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment offered by the Senator from Kentucky in behalf of the Senator from Tennessee (Mr. BAKER).
The amendment was agreed to.
Mr. RANDOLPH. Mr. President, I send to the desk an amendment, and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read as follows: On page 69, line 20, insert after "except" the following: "In the case of vehicle or vehicle engines".
On page 70, lines 22 and 23, strike "particularly such control, regulations or restrictions necessary". On line 23 after "with" insert "plans for the implementation of".
Mr. RANDOLPH. Mr. President, I have discussed this amendment with the able Senator from Maine, the chairman of our subcommittee.
The language of section 210, as reported, seemed to me not to appear to fully reflect the intent of the committee with regard to Federal preemption for aircraft, as well as vessels and commercial vehicle operations. The omission on page 69, line 22 of the word, "vehicle," before the word "engines" clouds the precision of the preemption and raises the question of whether States will have the authority to require more restrictive emission standards for aircraft engines than those established by the Secretary under section 202(a). This problem can be remedied by the addition on line 20 after the word "except", the words: "in the case of vehicles and vehicle engines".
Mr. MUSKIE. Mr. President, I think the amendment clarifies the intent of the legislation, and I support it. I yield back the remainder of my time.
The PRESIDING OFFICER. Does the Senator from West Virginia yield back the remainder of his time?
Mr. RANDOLPH. I do.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment of the Senator from West Virginia.
The amendment was agreed to.
Mr. RANDOLPH. Mr. President, I send to the desk another amendment, and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read as follows: On page 10, line 20, insert the following language as a new paragraph (4) at section 109(a):
"Section 109 (a) (4): The Secretary may establish a standing consulting Committee for each air pollution agent or combination of agents published pursuant to subsection (a) (1) of this section, which shall be comprised of technically qualified individuals representative of state and local governments, industry and the academic community. Such Committee shall recommend to the Secretary appropriate information as he may request on pollution control techniques applicable to such air pollution agent or combination thereof for distribution to the States and to appropriate air pollution control agencies. Such information shall include (i) data relating to the technology and costs of emission control, (ii) such data as are available on the latest available technology and alternative methods of prevention and control of air pollution, and (iii) data on alternative fuels, processes, and operating methods which will result in elimination or significant reduction of emissions."
Mr. RANDOLPH. Mr. President, I have also discussed this amendment with the able Senator from Maine. It is my belief that since enactment of the 1967 amendments to the Clean Air Act, it has become apparent that one of the deficiencies in the operation of the National Air Pollution Control Administration has been the agency's lack of understanding of industrial pollution control techniques. It is, of course, easy for Government to arrive at a set figure for industry to meet without giving due consideration to whether those requirements are obtainable on the basis of available control technology.
At times Government officials may believe that where the literature sets out a method which has been proven in the laboratory or in a pilot plant, then this method can be successfully utilized by industry in abating a given air pollution problem. This may or may not be true. Occasions have arisen when there has been a distinct conflict between inexperienced Government technical personnel and industry representatives who must do the "nuts and bolts" work of solving a given air pollution problem. For that reason, I believe it is important that the Secretary of Health, Education, and Welfare have the authority to establish standing consulting committees on the pollutants for which criteria have been issued. These standing committees would advise the Secretary on the appropriate control technology for each pollutant. Following the procedure specified, the information would then be issued to State and local control agencies in the form of a control techniques document.
Senators have noted that we use the language "as he may request." Certainly this would be done after consultation with appropriate advisory committees and Federal departments and agencies.
It should be emphasized that under the present language of section 107(c) of the Clean Air Act, the Secretary of Health, Education, and Welfare is authorized to issue to the States and appropriate air pollution control agencies information on recommended pollution control techniques after consultation with appropriate advisory committees and Federal departments and agencies.
All of us recognize that air pollution and its control is a major issue facing the country today. We all want to improve the quality of the air we breathe as rapidly as possible. However, in the process we need to use care that the control methods which are recommended by Government are based on available control technology and not merely on theoretical considerations.
I sincerely believe the amendment I have proposed today would be helpful in assuring that the control techniques recommended by NAPCA are practical ones and ones capable of being used successfully by industry in the strenuous efforts which will be needed if this country is to solve its air pollution problems.
I commend, as I have done on many occasions, the able leadership of the Senator from Maine (Mr. MUSKIE). I compliment him for the work he has done on this important bill.
Mr. MUSKIE. I thank the distinguished Senator from West Virginia.
I have indicated my willingness to accept this amendment. Before doing so, I would like to reemphasize that the concept of this bill as it relates to national ambient air quality standards and the deadlines for the automobile industry is not keyed to any condition that the Secretary finds technically and economically feasible. The concept is of public health, and the standards are uncompromisable in that connection.
Nevertheless, under the law since 1967, and after the enactment of this law if it becomes law, there is a requirement on the Secretary, when he issues the criteria documents, to issue, in addition, information on the technology available to deal with the pollutants in question.
The amendment of the Senator from West Virginia would create a mechanism in the form of consulting committees to provide information to the secretary on request–
Mr. RANDOLPH. That is night.
Mr. MUSKIE. – to assist him in preparing those technological documents. I think it would be a most useful device, and for that reason, I support the amendment.
Mr. RANDOLPH. Mr. President, commenting just briefly further, not desiring to take additional time, except to underscore what I have said: This is not a matter of competition between Government and industry. I think, actually, we can complement one another in an effort to achieve the technology which is needed.
I appreciate the reasonableness of the position taken by the able Senator from Maine.
Mr. MUSKIE. I yield back the remainder of my time.
Mr. RANDOLPH. I yield back the remainder of my time.
The PRESIDING OFFICER All time on the amendment has been yielded back. The question is on agreeing to the amendment of the Senator from West Virginia.
The amendment was agreed to.