Prof. Randal C. Picker, University of Chicago Law School
September 15, 2014
The headline of the New York Times of Tuesday, Aug. 7, 1945, is as chilling today as it was then: “FIRST ATOMIC BOMB DROPPED ON JAPAN; MISSILE IS EQUAL TO 20,000 TONS OF TNT; TRUMAN WARNS FOE OF A ‘RAIN OF RUIN.’” Some moments seem instantly historic—landing on the moon on July 20, 1969, comes to mind—and there could be no doubt that the dropping of the first atomic bomb on Hiroshima was one of those moments. There is before and then there is after, an after of fallout shelters, the Cold War, and mutual assured destruction.
President Truman’s statement, reprinted in the Times, started with a simple description: “Sixteen hours ago an American airplane dropped one bomb on Hiroshima, an important Japanese Army base.” Truman then turned to the research path that had led to that day and the “battle of the laboratories” between Germany and, acting together, the United States and Great Britain. Given the possibility of an invasion of Great Britain by Germany, Roosevelt and Churchill located the research and production facilities in the United States. Truman lauded the results of this effort as “the greatest achievement of organized science in history” with the result that the Allies were “now prepared to obliterate more rapidly and completely every productive enterprise the Japanese have above ground in any city.” In the wake of Hiroshima, Truman clearly wanted to make the threat posed by the A-bomb as stark as possible.
Truman’s statement was then followed by a second statement from Secretary of War Henry L. Stimson. Like Truman, Stimson recognized the atomic bomb as historic: “probably represents the greatest achievement of the combined efforts of science, industry, labor and the military in all history.” And Stimson claimed that the bomb dropped on Hiroshima was just the beginning, as he stated that “scientists are confident that over a period of years atomic bombs will be very much more powerful than the atomic bombs at hand.” In short, the hydrogen bomb.
Stimson then described the decision made to pursue atomic weapons. The possibility of such weapons was disclosed to President Roosevelt in 1939. Stimson said that at the end of 1941, a decision was made to undertake a full-scale effort. Roosevelt issued Executive Order 8807 on June 28, 1941, to create the Office of Scientific Research and Development (OSRD), under the direction of Dr. Vannevar Bush, and the atomic program was initially pursued within the OSRD. In June 1942, the program moved from OSRD to the War Department and the Manhattan Project was born.
Stimson then turned to more of the mechanics of the process. The construction of an entire city, described as government owned and operated, Oak Ridge, Tennessee, with a population of 78,000. A second such city, Richland, Washington, with a population of 17,000. A new laboratory near Santa Fe, New Mexico under the direction of Dr. J. Robert Oppenheimer and additional research facilities at a number of universities including Columbia, Chicago, California, and Iowa State College.
Stimson’s statement then took an unexpected turn, as he then turned to patents. Of course, this isn’t to say that patents weren’t understood to be important in World War II. A new patent secrecy act went in effect on July 1, 1940. That act empowered the Commissioner of Patents to order that inventions be kept secret when disclosure of the invention might be “detrimental to the public safety or defense.” And the Commissioner was further empowered to withhold the grant of a patent for as long as the national interest required. The statute seemed to contemplate that the U.S. government could put the invention to work but also to provide for subsequent damage actions from that use. (Somewhat ironically, Enrico Fermi and other colleagues were awarded a patent on July 2, 1940, for a “process for the production of radioactive substances.” As the New York Times noted, obviously quite publicly, in its Dec. 29, 1940, review of the year in patents, Fermi’s invention might be used to treat cancer but also that “this method has been used in liberating atomic energy from uranium-235.”)
But the 1940 patent secrecy act had two key goals, namely, to make sure that valuable inventions weren’t disclosed to the enemy and to give the U.S. government the ability to use inventions even before a patent had been granted, all while trying to ensure that some semblance of the standard patent system continued. But notwithstanding the continuing importance of patents in the war, Stimson’s turn to patents in his statement still seemed surprising and his first sentence almost seemed otherworldly: “It was early recognized that in order to make certain that this tremendous weapon would not fall in to the hands of the enemy prompt action should be taken to control patents in the field and to secure control over the ore which is indispensable to the process.” Controlling the uranium ore was one thing, as this was about physical control over a critical asset.
Presumably we didn’t somehow believe that U.S. enemies, present or future, would somehow be willing to attack the United States while at the same time respecting patent rights so that we would have unique control over atomic weapons. As Alex Wellerstein has argued, this program was almost certainly much more about overall control by the government of the atomic field after the war. Stimson continued: “In each country all personnel engaged in the work, both scientific and industrial, are required to assign their entire rights to any inventions in this field to their respective Governments.” All of the associated patent rights were, as Stimson put it, “held in a fiduciary sense” to be resolved at a later date. And of course, as was the case with the patent secrecy act of 1940, the idea wasn’t to use the patent system to let the enemy know how to build an atomic bomb: “All patent actions taken are surrounded by all safeguards necessary for the security of the project.”
As the government funded research in World War II, it had to sort out who would control the inventions that resulted from that research after the war. The government contracts with the researching firms and universities were the natural place to address this. OSRD typically entered into one of two types of contracts, so called short form contracts and long form contracts. In the short form contract, the government had the option of deciding whether an invention would be patented and how rights as to any patent would be controlled. The long form contract gave the research entity the right to pursue patents subject to a non-exclusive royalty-free license to the government in connection with “military, naval, and national defense purposes.”
Government contracts of this sort presumably were the mechanism that OSRD and then the War Department had relied upon to control atomic inventions and that Stimson had in mind in his statement. Lest this all be thought to be somehow theoretical or imaginary, as Wellerstein’s work on this issue makes clear, after the war was over, at a hearing in February 1946, the U.S. government made clear that it had indeed filed patent applications on the atomic bomb, exactly as Stimson had suggested in his post-Hiroshima statement.
And the issues regarding government-funded research during the war and the inventions that it led to weren’t just about the atomic bomb or nuclear power more generally. VE Day—victory in Europe—was May 8, 1945, and after dropping the first atomic bomb on Hiroshima on Aug. 7, 1945, and on Nagasaki on Aug. 9, 1945, VJ Day quickly followed on Aug. 14, 1945. The New York Times headline for Wednesday, Aug. 15, 1945: “JAPAN SURRENDERS, END OF WAR! EMPEROR ACCEPTS ALLIED RULE; M’ARTHUR SUPREME COMMANDER; OUR MANPOWER CURBS VOIDED.”
Down the front page was another story, this one entitled “Secrets of Radar Given to World.” On Aug. 14, 1945, OSRD came forward with the War Department and the Navy Department to tell the story of radar. The Times described radar as “vaguely known for two years” and said it “stood between survival or defeat by the Axis powers for the United States and Great Britain.” And further down the story, readers were told of the coming “patent struggle,” with some of the patents for radar held by the U.S. government and others held by commercial firms.