(dissenting).
I respectfully dissent because I believe that the language of the applicable statute encompasses this invention.
Section 151 and Congressional Intent
The majority quotes from the President’s message to Congress and the House and Senate Reports. I agree with the reports that the AEC Act accomplishes the purpose set forth in the President’s message. That purpose was accomplished, however, not by § 152, but by the changes Congress made in § 11 of the 1946 Act by enacting § 151 of the *14021954 Act. Section 152 was an entirely new section which deals with something entirely different from the “area in which private patents can be obtained,” of which the President spoke. If there is in the statute an intent to “liberalize,” the question to ask is “liberalize what?” I answer by saying “to liberalize § 11” by enacting § 151, and I will now show why.
The majority, like appellants, confuses the sections of the patent provisions of the 1954 Act which deal, first, with the rights of all inventors, whether they are employed by the Government or anyone else, to get private patents in the field of atomic energy, which was the subject of § 11 of the 1946 Act and is the subject of § 151 of the 1954 Act, and, second, with the disposition of title to inventions made under contracts with the AEC, the subject of § 152 and § 159 (42 U.S.C. § 2189) of the 1954 Act, which have no counterparts in the 1946 Act. The former is what Congress liberalized; the latter was made, if anything, more strict by the 1954 Act.
As the majority notes, the President called upon Congress to
Liberalize the patent provisions of the Atomic Energy Act, principally by expanding the area in which private patents can be obtained to include the production as well as utilization of fissionable material * * *. [Additional emphasis added.]
Congress responded by deleting § 11(b) in the 1946 Act and replacing § 11(a)(1) and (2) with new sections 151(a) and (b) where, among other things, the recitation of “production of fissionable material” was dropped in order that, under the revised section, private patents could be granted and confer rights in inventions useful in the production of fissionable material. If § 152 is to be considered in the same light as § 151, it would indeed be strange that Congress put into § 152 essentially the same wording, “production of special nuclear material,” which it deleted from § 151 to liberalize the patent provisions according to the President’s request. The answer, of course, is that Congress did not take away in § 152 that which it gave in revised § 151 because the two sections relate to different matters. Section 151 deals with the fields in which the Patent Office may grant patents, or in which the patents granted confer rights (i. e., the area in which private patents can be obtained), while § 152, as shown by its title, deals only with the disposition of title to patents where the invention is made or conceived while the inventor is under a contract with or for the benefit of the AEC. Accordingly, the legislative history supporting liberalization of the patent provisions does not apply to § 152, and thus the majority is in error in saying that the board’s, or this court’s, construction of the language of § 152 has anything to do with expanding “the area in which private patents can be obtained —[and is therefore] contrary to the objective of the Act.”
Substitution of Language
The concurring opinion chides the board and the dissent for indulging in the substitution of its own language for that of the statute. I do not believe that the board’s use of the term “proximately related to,” in the portion of the board’s opinion quoted by the majority, is properly characterized as a substitution of the language “useful in proximate relation to” for the “useful in” of the statute. I believe the board was properly characterizing what it believed was the relationship of this invention to the production or utilization of special nuclear material or atomic energy, and the board was no more engaging in the substitution of language than does the concurring opinion when it makes the following four statements:
The use of this particular invention, against the effects (oh humans) of radiation is simply too remote, in my view, to bring the invention within the purview of § 152.
•X- -X- * -X- * *
*1403A contractor-developed invention which has no effect whatever on “production or utilization of special nuclear vfhaterial or atomic energy” cannot be said to be useful in such production or utilization * * *. * * * The chemical compounds before us neither produce nor utilize special nuclear material or atomic energy.
■3fr •X’ if •X-
The future may well disclose a class of inventions which are not directly employed in the actual production or utilization of special nuclear material or atomic energy but which are so closely related to, or so directly affect, such production or utilization as to fall within the provisions of § 152.
* * * * * *
If the board’s statement is to be looked upon as a substitution of language, then a much more serious substitution of language occurs, I believe, in the statement of the majority that notes “the apparent lack of an essential or fundamental relationship which appellants’ invention bears to the production or utilization of special nuclear material or atomic energy.” (Emphasis mine.) I ask what is an “essential or fundamental relationship” to atomic energy, and how is it to be determined? It seems to me that if Congress wanted the Commissioner to issue patents on contractor-made inventions to the AEC which bore an “essential or fundamental relationship” to atomic energy, it would have said so, and would probably have used words very much like those it did use in other sections of the Act,1 namely, § 153 and § 158.
If § 152 is to be interpreted as requiring “an essential or fundamental relationship * * * to the production or utilization of special nuclear material or atomic energy,” where Congress stated that the invention need only be “useful in” such production or utilization, then must not other provisions of the Act containing the same language be given the same restrictive meaning? The same phrase, “invention . . . useful in the production or utilization of special nuclear material or atomic energy,” appears throughout the patent provisions of the Act. Some of these sections, like § 157(b)(3), benefit the public. Does not the holding of the majority mean that one making an invention which lacks “an essential or fundamental relationship” to atomic energy, etc., cannot now get an award under the above section? Similarly, does not the majority’s reliance on the assumed fact that “production of atomic energy is exactly the same” whether the invention is used or not to show that the invention has no “fundamental or essential relationship” mean that the AEC can now deny claims for awards under § 157 for such things as the shielding mentioned by the majority’s quotation from the AEC’s brief because plutonium can be produced without it? This seems to be a short-sighted approach to statutory language which only requires the invention to be “useful in” atomic energy, etc.
Section SI of the Act
The majority’s reliance upon section 31, and its predecessor, section 3, seems misplaced. The majority treats its discovery that § 11(b) was amended in 1954 to remove a reference to § 3 as an easy answer to “the board’s conclusion that inventions or discoveries falling within the areas of health and safety would fall within the authorized activities of the Commission and thus were intended to be covered by section 152 as well.” (Emphasis mine.) In fact, the board’s reference to § 31 was not to show that § 152 would cover health and safety inventions, but only to show that present § 31 would give the AEC the right to contract for such health and safety inventions and thus, in the words of the board, the AEC “in issuing the *1404direction under consideration here * * * did not reach beyond the limits of what it was in fact authorized and directed to do by direct arrangement with such a contractor.” 2 The reference to § 3 in the 1946 Act, which was omitted in 1954, was in section 11(b), as noted by the majority, and, as previously noted, like section 1.1’s replacement, section 151, it deals only with the right of inventors to get patents and not the disposition of title to inventions made under AEC contracts.
Other Sections of the Act
The majority considers the language of § 153 and § 158 to control in some way the meaning of § 152. It is not clear to me how the different words Congress used in these sections has any bearing on the meaning of the words in the section which we must here construe. There is no basis for the majority’s statement that § 153 “effectively limits the ‘public interest’ in patents, issued pursuant to section 152 * * Section 153 has no connection at all with § 152; it is only a provision for compulsory licensing of patents and gives the AEC the right to declare a patent “to be affected with the public interest.” The patents are not “pursuant to section 152.” As noted earlier, § 152 is not a patent-granting or patent-issuing statute; it deals only with the disposition of rights in inventions made in the course of or under AEC contracts. Reliance upon the language of § 153 here shows again that the majority has not appreciated the fact that § 152 has nothing whatsoever to do with the issuance of patents. I fail to see how the use by Congress of different language in § 153, and § 158, has a bearing on the meaning of § 152. If anything, the fact that Congress chose to use different language in these sections suggests that Congress meant the sections to have different meanings.
The Concurring Opinion .
The concurring opinion, under the heading “Environment of Use,” states that:
Clearly, the invention before us, by its very definition, has no use at all until after special nuclear material or atomic energy has been produced and utilized. Regardless of when they may be injected or ingested, and regardless of how they work, internally or externally of the body, the compounds of the invention cannot perform their intended protective function until after radiation occurs and reaches or approaches the body to be protected.
I know of no support in the record for the proposition that “the invention before us, by its very definition, has no use at all until after special nuclear material or atomic energy has been produced and utilized.” Lethal radiation is not only released after special nuclear material and atomic energy are produced and utilized, but during the production and utilization process as well. For example, in the process of producing the “special nuclear material,” plutonium, radiation is emitted during the production process as well as from the final product. Even, however, if the statement of the concurring opinion were true, utility after production or utilization would not mean a lack of utility in production and utilization, which' is all the statute requires.
Secondly, I fail to see the relationship to utility (“useful in”) of the admitted fact that “the compounds of the invention cannot perform their intended protective function until after radiation occurs and reaches or approaches the body to be protected.” Raincoats and umbrellas cannot perform their intended protective function until after rain occurs and reaches or approaches the body of the user either, but this does not make them any less useful in fulfilling *1405that function. As noted in the portion of the AEC brief quoted by the majority, the compounds of the invention are considered to be an alternative to, or supplement to, radiation shielding. The parties have not controverted the utility of conventional shielding in the production or utilization of special nuclear material or atomic energy, but the test established by the concurring opinion would read conventional shielding out of the statute as well.
The second reason why the concurring opinion finds the invention to be without the statutory language is that “special nuclear material and atomic energy are producible and utilizable in exactly the same way, for the same purposes, and with the same devices, * * *, whether the invention is present or not.” If the concurring opinion means by this statement and by the assertion that the “invention is totally passive * * * [and] never ‘gets into the act’ ” that the invention serves only as an emergency backup safety system, then such a rationale would read out of the statute all such backup system inventions. If what the statement means is that regardless of the presence of the drugs in an operator or another who is near a reactor or plutonium production apparatus which is releasing radiation at lethal levels, the reactor or apparatus will function just the same, then the concurring opinion takes a myopic view of utility. A requirement that in order to be “useful” an invention affect the production or utilization so as to modify it seems to me to be asking for the very standard which the concurring opinion vehemently rejects, the “absence of the invention” test. If one must ask whether “special nuclear material and atomic energy are producible and utilizable in exactly the same way, for the same purposes, and with the same devices * * *, whether the invention is present or not,” is not this a requirement that the AEC prove that in the “absence of the invention,” the utilization and production “in exactly the same way * * * with the same devices” would not be possible? Further, such a requirement would mean that such things as a reactor containment vessel and all of its concomitant radiation shielding apparatus would also not be “useful in” atomic energy, etc., because the reactor would run the same way without such shielding. To require that the production or utilization of atomic energy or special nuclear material somehow be affected by the presence of the invention appears, therefore, to be a much too stringent requirement where the language used by Congress only requires that the invention be “useful.” 3
Finally, it is the view of the concurring opinion that “All of appellee’s arguments resolve into” the single argument that “In the absence of the invention, there may be some situations in which special nuclear material or atomic energy could not be produced or utilized by unprotected workers.” I cannot agree that this is a correct summary of appel-lee’s arguments, which deal primarily with the meaning of the words of the statute. In fact, I have studied in detail all of the briefs of appellee before the board and this court, and the only evidence of such an argument appears in the single statement appellee’s counsel made in response to a question from the bench at oral argument, which statement is as follows: .
In the- case of a nuclear reactor or in the case of a laboratory where gamma radiation is produced and utilized, the persons in the area could be injected before they begin the reactions which produce the gamma radiation, and if they were very effective, perhaps certain reactions which take place would *1406be rendered possible, whereas in the absence of radio-protective drugs it would be impossible to run the experiments. In any event, if the drugs have the utility that the application alleges they do, there is still the foreseeable use of injecting, for example, an operator around a nuclear reactor who is apt to be exposed to gamma radiation from the reaction, and thereby he could conduct certain work in that area which in the absence of the drugs he could not conduct.
In my view, the AEC did not ask that the ease be decided on the basis of the “absence of the invention” argument but only on the wording of the statute. Further I do not find in the opinion of the board reliance upon an “absence of the invention” test as a standard for determining whether an invention is “useful.”
I do not know the mental processes of the board any better than the author of the concurring opinion, but I do not find in the language of the board any basis for the statement of the concurring opinion; and it is improper, in my view, to attribute such a hypothetical foundation to the language of the board. I read the statement of the board which uses the word “proximately” as an effort by the board to note the proximity, or closeness, of this invention to atomic energy, etc., and to distinguish such inventions as the “tranquilizer” discussed by the concurring opinion. What the board was saying, I believe, was only that the compounds of the invention work against the very effect of atomic energy and special nuclear material production and utilization, radiation, while other inventions, such as tranquilizers, would not be so closely, or proximately, related to such production or utilization.
My Decisional Basis
I would affirm the decision of the board. I am satisfied that there is a logical answer to each and every one of appellants’ arguments and I find that the ordinary meaning of the statutory phrase “useful in the production or utilization of special nuclear material or atomic energy” encompasses this invention.
While the breadth of the language of the statute is, as noted by the board, “anything but clearly delimited,” I would limit our decision to the facts of this case4 and hold, as did the board, that “the efficacy of the drugs is so proximately related to the actual production or utilization of special nuclear material or atomic energy as a protective agent for those involved in such activity” that it is within the purview of § 152. In the posture in which this case comes before us it must be assumed that the invention will protect people, as well as mice, from the effects of gamma rays which are given off “in the production *1407* * * of [the] special nuclear material,” plutonium, and is thus “useful in” the production of such material.
I am convinced that if Congress had not intended such a construction of its language, it would have used more limited phrases or limiting modifiers such as the majority now substitutes and such as Congress used in many other sections of the Act.5 Congress not having done so, however, I conclude that Congress must have intended the broader scope of the broader language it used. Accordingly, on the required assumption that the invention would save human lives, as it did the lives of the mice, I find the invention to be “useful in the production or utilization of special nuclear material or atomic energy” and would affirm the decision of the board.
. See footnote 5 of the majority opinion which notes that Congress replaced the very word “essential” with the words “of primary importance in” in the 1954 Act in another section of the Act.
. This is really a minor argument of the board, anyway, compared with the many pages the board spent construing the meaning of the terms of the statute it had to interpret.
. If such is the test to be applied, however, then the example given by counsel for appel-lee, discussed shortly, would suggest that the invention here fulfills it.
. I do not believe that we should pre-decide that “inventions relating to nuts and bolts on general purpose machinery used in the production of atomic energy” are not within the statutory language. This is not the case before the court, and such statements will only make it more difficult for the court to decide other cases in the future, which may involve general purpose machinery.
The statement of the majority opinion also suggests that the invention “[has] a use predominantly in the nongovernmental sector.” I do not find this supported by the record; and nothing is gained by speaking not of use in atomic energy, but predominant use in the nongovernmental sector. The implication of footnote 1 in the majority opinion is that the AEC counsel was giving a “vivid example” of use of the invention in the nongovernmental sector, when, in fact, I believe he was speaking only generally of the use of the invention “in the area around a nuclear reaction, nuclear reactor, say for the production of electrical energy,” and said nothing about whether nuclear reactors are governmental or nongovernmental. Section 2 of the Act (42 U.S.C. § 2012) even seems to show a Congressional finding that the use of atomic energy and special nuclear material is, at least to some extent, a governmental function.
. For example, as has been shown, when Congress wanted to use the phrase “of primary use in” in § 153, it did so. Congress also used this more limiting language in § 158 (42 U.S.C. § 2188).