Measures for Progress: A History of the National Bureau of Standards

348 THE TiME OF THE GREAT DEPRESSION (1931-40)
the midst of serious litigation over patents taken out by members of the staff,
in defiance of long-standing practice.148 No solution was offered at that
148 Traditionally, the Government retained rights to the use of inventions of Federal
employees but otherwise left title to them with their inventors. The Bureau of Stand-
ards did not follow this policy. For 20 years under Dr. Stratton it was understood that
any innovation or invention of a Bureau staff member was to be patented in the name
of the Government for the use of the public.
The understanding was not seriously challenged until the summer of 1921 when two
members of the radio section, Percival D. Lowell and Francis W. Dunmore, while working
on a radio relay project for the Air Corps, conceived the idea of substituting house power
for the storage batteries then used with radio apparatus. The method they devised for
operating radio on ordinary house current also eliminated the principal obstacle to its use,
the hum of alternating current in the radiofl Their inventions were only remotely related
to the Air Corps project.
In March 1922 Lowell and Dunmore filed the first of three related patents in their own
names and in October 1924 granted manufacturing rights to the Dubilier Condenser
Corp. of Delaware. The devices were described in NBS S450, June 17, 1922, and in a
paper in the AIEE Journal, 41, 488 (1922).
Shortly after filing their first patent, the Government, at the prompting of the Bureau,
submitted the case for judgment to the U.S. District Court for Delaware. And on Nov.
2, 1922, in a memorandum to all Bureau employees, Dr. Stratton for the first time formally
established as policy the assignment of all patent rights in inventions and discoveries of
the staff to the Government (memo in NBS Box 40, AGP).
Almost a decade later, on Apr. 27, 1931, the District Court handed down its decision,
deciding against the Government. Although the court declared that the devices of
Lowell and Dunmore had been developed on Government time, with Government funds,
and with the assistance of other Government employees, the devices had not been a part of
their assigned work and therefore the inventions and patents were their property (The
United States Daily, May 2, 1931, p. 52). The decision was appealed by the Justice
When on May 24, 1932 the U.S. Circuit Court upheld the decision of the district court,
the Government filed a petition in the Supreme Court. No similar case of patent rights
had come up at the Bureau in the intervening years, but after the district court decision
of 1932 some members of the Bureau continued to assign their rights to the Government,
while others were advised that the Bureau would raise no objection tO a private patent,
pending a final court decision (letter, Acting Director LJB to Secretary of Commerce,
Dec. 17, 1932, NARG 40, 67009/5). On Apr. 10, 1933, the Supreme Court, one member
dissenting, decreed that in the absence of a specific contractual agreement, all com-
mercial rights to patents belonged to the inventor, whether or not the work was performed
on Government time.
Aware of the lack of uniformity in patent policy in Government agencies and the impasse
at the Bureau, the Visiting Committee to the Bureau and the Business Advisory Council
of the Department of Commerce in their joint report issued on Dec. 5, 1933, suggested
that a Government ownership of patents clause be written into the standard employment
contract of the Bureau. For unknown reasons, the Business Advisory Council reversed
its stand and in a separate report of Dec. 9, 1933, formally recommended that Bureau
employees be permitted to patent devices developed at the Bureau, with the warning
that exercise of their right must not "interfere with free communication and cooperation