37 
is in doubt; but if further judicial interpretation or legislation even- 
tually upholds such patent rights, HEW policy would permit grantee 
institutions to acquire patents and award licenses for recombinant 
DMA discoveries. As for the private sector, Cetus Corporation Presi- 
dent Ronald Cape predicted that the insecurity of patent rights would 
deter commercial firms from investing in the development of recom- 
binant DMA applications. “(We) will be without a mechanism for 
useful exploitation of a technology which was invented in this coun- 
try. It will certainly be exploited elsewhere.” 
In the absence of statutory protection of the confidentiality of re- 
search plans, the Freedom of Information Act (5 U.S.C. 552) would 
govern their disclosure by the regulatory agency. Subsection (b)(4) 
of the FOIA provides an exception from mandatory disclosure for 
“matters that are * * * trade secrets and commercial or financial infor- 
mation obtained from a person and privileged or confidential”; but 
academic and industrial scientists regard the so-called trade secret ex- 
emption as inadequate on several counts. In W ashington Research 
Project , Inc. v. Department of Health , Education , and Welfare (504 
F. 2d 238 (D.C. Cir. 1974)), the court of appeals affirmed a lower 
court decision ordering release of research grant applications includ- 
ing experimental protocols on the grounds that there were no trade 
secrets in a “noncommercial scientist’s design.” 
The court further said that “it defies commonsense to pretend that 
the scientist is engaged in trade or commerce.” While that argument 
would not arise in the case of industrial recombinant DMA research, 
the interpretations of subsection (b)(4) give little guidance as to the 
trade secret content of a research design. The leading case, National 
Parks and Conservation Association v. Morton (498 F. Supp. 965 
(D.D.C. 1974) ) , applies two tests, of which the relevant one is whether 
release of the information by the Government agency might cause sub- 
stantial harm to a competitive position. The F ederal criminal statute 
(18 U.S.C. 1905) barring a Government official’s release of proprie- 
tary information appears to give little protection because it only ap- 
plies “unless otherwise provided by law, as in the FOIA. 
On the other side of the disclosure controversy are those who insist 
on public access to all information relevant to the protection of public 
health and the environment. Marcia Cleveland observed : 
Over the past 10 years . . . this country has come to recognize the importance 
of citizens having access to the Information which . . . forms the basis of govern- 
ment activities that affect our lives. That is what the Freedom of Information 
Act is about. ... In the field of recombinant DNA, I don’t think that citizens can 
effectively participate in any sort of regulatory or advisory activity unless they 
have access to information in the hands of the government . . . and industry. 
Cleveland suggested that, if need be, the patent laws should be amended 
to eliminate the penalty for prior publication. On the other hand, 
Marc Lappe opposed the granting of any patents for recombinant 
DMA research discoveries. 
Viexvs of the subcommittee 
The subcommittee agrees with the admonition of Philip Handler, 
president of the Mational Academy of Sciences, to establish only the 
“minimal arrangements that would suffice to maximize compliance” 
with the standards governing recombinant DNA research. It has no 
[Appendix B — 296] 
