42 U.S.C. § 2188 — Monopolistic use of patents

Page 5482 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2188 this title may make application to the Commis- sion for, and the Commission may grant, an award. The Commission may also, after con- sultation with the General Advisory Committee, and with the approval of the President, grant an award for any especially meritorious contribu- tion to the development, use, or control of atomic energy. (c) Standards (1) In determining a reasonable royalty fee as provided for in section 2183(b) or 2183(e) of this title, the Commission shall take into consider- ation (A) the advice of the Patent Compensation Board; (B) any defense, general or special, that might be pleaded by a defendant in an action for infringement; (C) the extent to which, if any, such patent was developed through federally fi- nanced research; and (D) the degree of utility, novelty, and importance of the invention or dis- covery, and may consider the cost to the owner of the patent of developing such invention or discovery or acquiring such patent. (2) In determining what constitutes just com- pensation as provided for in section 2181 of this title, or in determining the amount of any award under subsection (b)(3), the Commission shall take into account the considerations set forth in paragraph (1) of this subsection and the actual use of such invention or discovery. Such compensation may be paid by the Commission in periodic payments or in a lump sum. (d) Limitations Every application under this section shall be barred unless filed within six years after the date on which first accrues the right to such reasonable royalty fee, just compensation, or award for which such application is filed. (Aug. 1, 1946, ch. 724, title I, § 157, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 947; amended Pub. L. 87–206, § 11, Sept. 6, 1961, 75 Stat. 478; Pub. L. 93–276, title II, § 201, May 10, 1974, 88 Stat. 119; re- numbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT Sections 281, 283, and 284 of title 18, referred to in sub- sec. (a), were repealed by Pub. L. 87–849, § 2, Oct. 23, 1962, 76 Stat. 1126, except as sections 281 and 283 apply to retired officers of the Armed Forces of the United States, and were supplanted by sections 203, 205, and 207, respectively, of Title 18, Crimes and Criminal Pro- cedures. For further details, see ‘‘Exemptions’’ note set out under section 203 of Title 18. This chapter, referred to in subsec. (b)(3), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. PRIOR PROVISIONS Provisions similar to this section were contained in section 1811(e)(1) to (3) of this title, prior to the general amendment and renumbering of act Aug. 1, 1946, by act Aug. 30, 1954. AMENDMENTS 1974—Subsec. (b)(3). Pub. L. 93–276 substituted ‘‘after consultation with the General Advisory Committee’’ for ‘‘upon the recommendation of the General Advisory Committee’’. 1961—Subsec. (d). Pub. L. 87–206 added subsec. (d). Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of this title. Pat- ent Compensation Board established by this section transferred to Energy Research and Development Ad- ministration and functions of Atomic Energy Commis- sion with respect thereto transferred to Administrator by section 5814(d) of this title. See, also, notes set out under sections 5814 and 5841 of this title. Energy Re- search and Development Administration terminated and functions vested by law in Administrator thereof transferred to Secretary of Energy (unless otherwise specifically provided) by sections 7151(a) and 7293 of this title. TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 1013 of Title 5, Government Organi- zation and Employees. Executive Documents EX. ORD. NO. 11477. AWARDS BY COMMISSION WITHOUT APPROVAL OF PRESIDENT Ex. Ord. No. 11477, eff. Aug. 7, 1969, 34 F.R. 12937, pro- vided: By virtue of the authority vested in me by section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows: The Atomic Energy Commission is hereby designated and empowered, without approval, ratification, or other action by the President, to grant by the unani- mous affirmative vote of all of its members not more than five awards in any calendar year, not exceeding the sum of $5,000 each, pursuant to the last sentence of section 157b(3) of the Atomic Energy Act of 1954 (42 U.S.C. 2187(b)(3)) which authorizes the Commission to grant awards for especially meritorious contributions to the development, use, or control of atomic energy. RICHARD NIXON. MODIFICATION OF EXECUTIVE ORDER NO. 11477 Ex. Ord. No. 11477, Aug. 7, 1969, 34 F.R. 12937, set out as a note above, when referring to functions of the Atomic Energy Commission is modified to provide that all such functions shall be exercised by the Secretary of Energy and the Nuclear Regulatory Commission, see section 4(a)(1) of Ex. Ord. No. 12038, Feb. 3, 1978, 43 F.R. 4957, set out as a note under section 7151 of this title. § 2188. Monopolistic use of patents Whenever the owner of any patent hereafter granted for any invention or discovery of pri- mary use in the utilization or production of spe- cial nuclear material or atomic energy is found by a court of competent jurisdiction to have in- tentionally used such patent in a manner so as to violate any of the antitrust laws specified in section 2135(a) of this title, there may be in- cluded in the judgment of the court, in its dis- cretion and in addition to any other lawful sanc- tions, a requirement that such owner license such patent to any other licensee of the Com- Page 5483 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2201 1 See References in Text note below. mission who demonstrates a need therefor. If the court, at its discretion, deems that such li- censee shall pay a reasonable royalty to the owner of the patent, the reasonable royalty shall be determined in accordance with section 2187 of this title. (Aug. 1, 1946, ch. 724, title I, § 158, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 947; amended Pub. L. 87–206, § 12, Sept. 6, 1961, 75 Stat. 478; renum- bered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes AMENDMENTS 1961—Pub. L. 87–206 made it discretionary, rather than mandatory, for the court to require payment of royalties by a licensee to the owner of a patent. § 2189. Federally financed research Nothing in this chapter shall affect the right of the Commission to require that patents granted on inventions, made or conceived during the course of federally financed research or op- erations, be assigned to the United States. (Aug. 1, 1946, ch. 724, title I, § 159, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 948; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. § 2190. Saving clause for prior patent applica- tions Any patent application on which a patent was denied by the United States Patent and Trade- mark Office under sections 1811(a)(1), 1811(a)(2), or 1811(b) 1 of this title, and which is not prohib- ited by section 2181 or 2185 of this title may be reinstated upon application to the Commis- sioner of Patents and Trademarks within one year after August 30, 1954 and shall then be deemed to have been continuously pending since its original filing date: Provided, however, That no patent issued upon any patent application so reinstated shall in any way furnish a basis of claim against the Government of the United States. (Aug. 1, 1946, ch. 724, title I, § 160, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 948; amended Pub. L. 93–596, § 3, Jan. 2, 1975, 88 Stat. 1949; renum- bered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT Sections 1811(a)(1), 1811(a)(2), and 1811(b) of this title, referred to in text, were omitted from the Code in the general amendment and renumbering of act Aug. 1, 1946 (which was classified to section 1801 et seq. of this title) by act Aug. 30, 1954, ch. 1073, 68 Stat. 919. Statutory Notes and Related Subsidiaries CHANGE OF NAME Patent Office and Commissioner of Patents changed to Patent and Trademark Office and Commissioner of Patents and Trademarks, respectively, pursuant to Pub. L. 93–596, § 3, Jan. 2, 1975, 88 Stat. 1949, set out as a note under section 1 of Title 35, Patents. SUBCHAPTER XIII—GENERAL AUTHORITY OF COMMISSION § 2201. General duties of Commission In the performance of its functions the Com- mission is authorized to— (a) Establishment of advisory boards establish advisory boards to advise with and make recommendations to the Commission on legislation, policies, administration, research, and other matters, provided that the Commis- sion issues regulations setting forth the scope, procedure, and limitations of the authority of each such board; (b) Standards governing use and possession of material establish by rule, regulation, or order, such standards and instructions to govern the pos- session and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desir- able to promote the common defense and secu- rity or to protect health or to minimize dan- ger to life or property; in addition, the Com- mission shall prescribe such regulations or or- ders as may be necessary or desirable to pro- mote the Nation’s common defense and secu- rity with regard to control, ownership, or pos- session of any equipment or device, or impor- tant component part especially designed for such equipment or device, capable of sepa- rating the isotopes of uranium or enriching uranium in the isotope 235; (c) Studies and investigations make such studies and investigations, ob- tain such information, and hold such meetings or hearings as the Commission may deem nec- essary or proper to assist it in exercising any authority provided in this chapter, or in the administration or enforcement of this chapter, or any regulations or orders issued thereunder. For such purposes the Commission is author- ized to administer oaths and affirmations, and by subpena to require any person to appear and testify, or to appear and produce docu- ments, or both, at any designated place. Wit- nesses subpenaed under this subsection shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States; (d) Employment of personnel appoint and fix the compensation of such of- ficers and employees as may be necessary to carry out the functions of the Commission. Such officers and employees shall be appointed in accordance with the civil-service laws and