S5402 CONGRESSIONAL RECORD — SENATE September 8, 2011 America. This transformation is not I yield the floor and suggest the ab- spent 12 years as a U.S. Attorney and without enormous dangers and chal- sence of a quorum. tried cases. I am well aware of how the lenges, but consider how much worse it The PRESIDING OFFICER (Mr. system works. The way the system would have been if a pro-bin Laden BROWN of Ohio). The clerk will call the works in America, you file lawsuits movement were fueling this trans- roll. and you are entitled to your day in formation. The assistant legislative clerk pro- court. But if you do not file your law- It is plain we need more of what we ceeded to call the roll. suit in time, within the statute of limi- had post-9/11 now. I am not naive. I Mr. SESSIONS. Mr. President, I ask tations, you are out. know it cannot be conjured up or unanimous consent that the order for When a defendant raises a legal point wished into existence. But if we are op- the quorum call be rescinded. of order—a motion to dismiss—based timistic, if we are inspired by the The PRESIDING OFFICER. Without on the failure of the complaining party Americans who died here, if we truly objection, it is so ordered. to file their lawsuit timely, they are understand our shared history and the f out. That happens every day to poor sacred place compromise and ration- CONCLUSION OF MORNING people, widow ladies. And it does not ality hold at the very center of the for- BUSINESS make any difference what your excuse mation of our Nation and the structure is, why you think you have a good law- The PRESIDING OFFICER. Morning of our Constitution, then we can again suit, why you had this idea or that business is closed. take up the mantle of shared sacrifice idea. Everyone is required to meet the and common purpose that we wore f same deadlines. after 9/11 and apply some of those be- LEAHY-SMITH AMERICA INVENTS In Alabama they had a situation in haviors to the problems we now con- ACT which a lady asked a probate judge front. The reality of our current political The PRESIDING OFFICER. Under when she had to file her appeal by, and climate is that both sides are off in the previous order, the Senate will re- the judge said: You can file it on Mon- their corners; the common enemy is sume consideration of H.R. 1249, which day. As it turned out, Monday was too faded. Some see Wall Street as the the clerk will report by title. late. They went to the Alabama Su- enemy many others see Washington, The assistant legislative clerk read preme Court, and who ruled: The pro- DC, as the enemy and to still others as follows: bate judge—who does not have to be a any and all government is the enemy. An Act (H.R. 1249) to amend title 35, United lawyer—does not have the power to I believe the greatest problem we States Code, to provide for patent reform. amend the statute of limitations. face is the belief that we can no longer AMENDMENT NO. 600 Sorry, lady. You are out. confront and solve the problems and Mr. SESSIONS. Mr. President, I ask Nobody filed a bill in the Congress to challenges that confront us; the fear unanimous consent to call up my give her relief, or the thousands of oth- that our best days may be behind us; amendment No. 600, which is at the ers like her every day. So Medco and that, for the first time in history, we desk. WilmerHale seeking this kind of relief fear things will not be as good for our The PRESIDING OFFICER. The is a big deal. To whom much has been kids as they are for us. It is a creeping clerk will report. given, much is required. This is a big- pessimism that cuts against the can-do The assistant legislative clerk read time law firm, one of the biggest law and will-do American spirit. And, along as follows: firms in America. Medco is one of the with the divisiveness in our politics, it The Senator from Alabama [Mr. SESSIONS], biggest pharmaceutical companies in is harming our ability to create the for himself, Mr. MANCHIN, Mr. COBURN, and the country. And presumably the law great works our forbears accomplished: Mr. LEE, proposes an amendment numbered firm has insurance that they pay to in- building the Empire State building in 600. sure them if they make an error. So it the teeth of the Great Depression, con- Mr. SESSIONS. Mr. President, I ask appears that they are not willing to ac- structing the Interstate Highway Sys- unanimous consent that the reading of cept the court’s ruling. tem and the Hoover Dam, the Erie the amendment be dispensed with. One time an individual was asking The PRESIDING OFFICER. Without Canal, and so much more. me: Oh, JEFF, you let this go. Give in While governmental action is not the objection, it is so ordered. and let this go. I sort of as a joke said whole answer to all that faces us, it is The amendment is as follows: to the individual: Well, if WilmerHale equally true that we cannot confront AMENDMENT NO. 600 will agree not to raise the statute of the multiple and complex challenges (Purpose: To strike the provision relating to limitations against anybody who sues we now face with no government or a the calculation of the 60-day period for ap- their clients if they file a lawsuit late, defanged government or a dysfunc- plication of patent term extension) maybe I will reconsider. He thought I tional government. On page 149, line 20, strike all through page was serious. Of course WilmerHale is 150, line 16. As we approach the 10th anniversary not going to do that. If some poor per- of 9/11, the focus on what happened that Mr. SESSIONS. Mr. President, the son files a lawsuit against someone day intensifies—what we lost, who we amendment that I have offered is a they are representing, and they file it lost, and how we reacted—it becomes very important amendment. It is one one hour late, WilmerHale will file a acutely clear that we need to confront that I believe is important to the in- motion to dismiss it. And they will not our current challenges imbued with the tegrity of the U.S. legal system and to ask why they filed it late. This is law. spirit of 9/11 and determine to make the integrity of the Senate. It is a mat- It has to be objective. It has to be fair. our government and our politics wor- ter that I have been wrestling with and You are not entitled to waltz into the thy of the sacrifice and loss we suffered objecting to for over a decade. I U.S. Congress—well connected—and that day. thought the matter had been settled, start lobbying for special relief. To return to de Tocqueville, he also frankly, but it has not because it has remarked that: been driven by one of the most fero- There is nothing more complicated The greatness of America lies not in being cious lobbying efforts the Congress about that than this. So a couple of more enlightened than any other nation, but maybe has seen. things have been raised. Well, they sug- rather in her ability to repair her faults. The House patent bill as originally gest, we should not amend the House So, like the ironworkers and oper- passed out of committee and taken to patent bill, and that if we do, it some- ating engineers and trade workers who the floor of the House did not include a how will kill the legislation. That is miraculously appeared at the pile bailout for Medco, the WilmerHale law not so. Chairman LEAHY has said he hours after the towers came down with firm, or the insurance carrier for that supports the amendment, but he blowtorches and hard hats in hand, firm, all of whom were in financial doesn’t want to vote for it because it let’s put on our gloves, pick up our jeopardy as a result of a failure to file would keep the bill from being passed hammers and get to work fixing what a patent appeal timely. somehow. ails the body politic. It is the least we I have practiced law hard in my life. It would not keep it from being can do to honor those we lost. I have been in court many times. I passed. Indeed, the bill that was

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.008 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5403 brought to the House floor didn’t have of the legal system at times and a sup- ought to pursue that. There are special this language in it. The first vote re- porter at times. I think they take a procedures. The litigation will be over, jected the attempt to put this language principled position in this instance. and they can bring that action at that in it. It failed. For some reason, in The Wall Street Journal editorial stat- time. some way, a second vote was held, and ed: That is the basic position we ought it was passed by a few votes. So they We take no pleasure in seeing the Medicine to be in. A bill that comes out of the are not going to reject the legislation Company and WilmerHale suffer for their Judiciary Committee ought to be sen- if we were to amend it. mistakes, but they are run by highly paid sitive to the legal system, to the im- What kind of system are we now in- professionals who know the rules and know portance of ensuring that the poor are volved in in the Senate if we can’t undo that consistency of enforcement is critical treated as well as the rich. The oath an amendment? What kind of argument to their businesses. Asking Congress to judges take is to do equal justice to the break the rules as a special favor corrupts is it to say: JEFF, I agree with your the law. poor and the rich. amendment, and I agree it is right that How many other people in this coun- they should not get this special relief, I think that is exactly right. It is ex- try are getting special attention today but I can’t vote for it because it might actly right. Businesses, when they are on the floor of the Senate? How many? cause a problem? It will not cause a sued by somebody, use the statute of I truly believe this is not good policy. problem. The bill will pass. It should limitations every day. This law firm I have had to spend far more hours never have been put in there in the makes hundreds of millions of dollars fighting this than I have ever wanted first place. in income a year. Their partners aver- to when I decided 10 years ago that this Another point of great significance is age over $1 million a year, according to was not a good way to go forward. the fact that this issue is on appeal. the New York Times. That is pretty Many battle this issue, and I hope and The law firm asserted they thought— good. They ought to be able to pay a trust that the Members of the Senate and it is a bit unusual—that because it decent malpractice insurance pre- who will be voting on this will allow it came in late Friday they had until mium. The New York Times said to follow the legitimate process. Let Monday. We can count the days to WilmerHale reported revenues of $962 the litigation work its way through the Monday—the 60 days or whatever they million in 2010, with a profit of $1.33 system. had to file the answer. I don’t know if million per partner. If they do not prevail in the litiga- that is good law, but they won. The dis- Average people have to suffer when tion, let a private relief bill be sought trict court has ruled for them. It is on they miss the statute of limitations. and debated openly and publicly to see appeal now to the court of appeals. Poor people suffer when they miss the if it is justified. That would be the This Congress has no business inter- statute of limitations. But we are un- right way to do it—not slipping fering in a lawsuit that is ongoing and dertaking, at great expense to the tax- through this amendment and then not is before an appeals court. If they are payers, to move a special interest piece voting to remove it on the basis that so confident their district court ruling of legislation that I don’t believe can we should not be amending a bill before is correct, why are they continuing to be justified as a matter of principle. I us. We have every right to amend the push for this special relief bill, when agree with the Wall Street Journal bill, and we should amend the bill. I that the adoption of it corrupts the the court of appeals will soon, within a know Senator GRASSLEY, years ago, matter of months, rule? system. We ought not be a part of that. was on my side. I think it was just the Another point: We have in the Con- I love the American legal system. It two of us who took this position. gress a procedure to deal with special is a great system, I know. I have seen I guess I have more than expressed relief. If this relief is necessary at all, judges time and time again enter rul- my opinion. I thank the chairman for it should go through as a special relief ings based on law and fact even if they his leadership. I thank him and Sen- bill. I can tell you one reason it is not didn’t like it. That is the genius and ator GRASSLEY for their great work on going there now: you can’t ask for spe- reliability and integrity of the Amer- this important patent bill. I support cial relief while the matter is still in ican legal system. I do not believe we that bill. I believe they have moved it litigation, it is still on appeal. Special can justify, while this matter is still in forward in a fair way. relief also has procedures that one has litigation, passing a special act to give The chairman did not put this lan- to go through and justify in an objec- a wealthy law firm, an insurance com- guage into the bill; it was put in over tive way, which I believe would be very pany, and a health care company spe- in the House. I know he would like to healthy in this situation. cial relief. I just don’t believe we see the bill go forward without amend- For a decade, virtually—I think it should do that. I oppose it, and I hope ments. I urge him to think it through has been 10 years—I have been object- my colleagues will join us. and see if he cannot be willing to sup- ing to this amendment. Now we are I think we have a real chance to turn port this amendment. I am confident it here, I thought it was out, and all of a this back. Our Congress and our Senate will not block final passage of the leg- sudden it is slipped in by a second vote will be better for it; we really will. The islation. in the House, and we are told we just Citizens Against Government Waste I yield the floor. can’t make an amendment to the bill. have taken an interest in this matter The PRESIDING OFFICER. The Sen- Why? The Senate set up the legislation for some time. They said: ator from Vermont. to be brought forward, and we can offer Congress has no right to rescue a company Mr. LEAHY. Mr. President, I will amendments and people can vote for from its own mistakes. speak later about the comments made them or not. Companies have a right to assert the by the distinguished Senator from Ala- This matter has gotten a lot of atten- law. Companies have a right to assert bama. He has been very helpful in get- tion. The Wall Street Journal and the the law against individuals. But when ting this patent bill through. He is cor- New York Times both wrote about it in the time comes for the hammer to fall rect that this amendment he speaks to editorials today. This is what the New on them for their mistake, they want is one added in the other body, not by York Times said today about it: Congress to pass a special relief bill. I us. We purposely didn’t have it in our But critics who have labeled the provision don’t think it is the right thing to do. bill. I know Senator GRASSLEY will fol- ‘‘The Dog Ate My Homework Act’’ say it is Mr. President, let’s boil it down to low my remarks. really a special fix for one drug manufac- several things. First, if the company is There is no question in my mind that turer, the Medicines Company, and its pow- erful law firm, WilmerHale. The company right and the law firm is right that if the amendment of the Senator from and its law firm, with hundreds of millions of they did not miss the statute of limita- Alabama were accepted, it in effect dollars in drug sales at stake, lobbied Con- tions, I am confident the court of ap- will kill the bill. Irrespective of the gress heavily for several years to get the pat- peals will rule in their favor, and it merits, it can come up on another piece ent laws changed. will not be necessary for this Senate to of legislation or as freestanding legis- That is what the Wall Street Journal act. If they do not prevail in the court lation. That is fine. But on this bill, said in their editorial. The Wall Street of appeals and don’t win their argu- after 6 years of effort to get this far, Journal understands business reality ment, then there is a provision for pri- this bill would die because the other and litigation reality. They are a critic vate relief in the Congress, and they body will not take it up again.

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.013 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5404 CONGRESSIONAL RECORD — SENATE September 8, 2011 HURRICANE IRENE While reports are still coming in Vermont, as it will be to other States Mr. LEAHY. Mr. President, I will use from the farms that were affected, the coping with the same disaster. I worry my time to note some of the things list of damages and the need for crit- the support they need to rebuild may happening in my own very special ical supplies, such as feed, generators, not be there, as it has been in past dis- State of Vermont, the State in which I fuel, and temporary fencing is on the asters, when we have rebuilt after hur- was born. rise. As we survey the farm fields and ricanes, floods, fires and earthquakes As Vermonters come together and communities, we know it will be dif- to get Americans back in their homes, continue to grapple with the aftermath ficult to calculate the economic im- something Vermonters have supported of storm damage from Irene, I wish to pacts of this violent storm on our agri- even though in these past disasters focus today on the agriculture disaster culture industry in Vermont. Vermont was not touched. that has hit us in Vermont and report Many of our farmers were caught by So I look forward to working with to the Senate and our fellow citizens surprise as the unprecedented, rapidly the Appropriations Committee and across the Nation about how the raging rising floodwaters inundated their with all Senators to ensure that floodwaters wreaked havoc on our crops, and many have had to deal with FEMA, USDA and all our Federal agen- farming lands and infrastructure in the deeply emotional experience of los- cies have the resources they need to Vermont. ing animals to the fast-moving flood- help all our citizens at this time of dis- It was 12 days ago now that this enor- waters. We have farms where whole aster, in Vermont and in all our states. mous, slow-moving storm hit Vermont fields were washed away and their fer- Unfortunately, programs such as the and turned our calm, scenic brooks and tile topsoil sent rushing down river. Emergency Conservation Program and creeks into raging gushers. In addition The timing could not have been worse. the Emergency Watershed Protect Pro- to our roads and historic covered Corn, which is a crucial winter feed for gram have been oversubscribed this bridges that were destroyed or carried dairy cows, was just ready for harvest, year, and USDA has only limited funds away, we had barns, farmhouses, crops, but now our best corn is in the river remaining. We also face the grim fact parts of fields, and livestock washed bottoms and is ruined. Other farms had that few of our farms had bought crop away in the rising floodwaters. I recall just prepared their ground to sow win- insurance and so may not be covered the comments of one farmer who ter cover crops and winter greens; they by USDA’s current SURE Disaster Pro- watched his herd of cows wash down lost significant amounts of topsoil. gram. the river, knowing they were going to River banks gave way, and we saw But those are the things I am work- die in the floodwaters. wide field buffers disappear overnight, ing on to find ways to help our farmers Now the cameras have begun to turn leaving the crops literally hanging on and to move forward to help in the away, but the cleanup and urgent re- ledges above rivers, as at the commitment to our fellow Americans. pairs are underway. For major parts of Kingsbury farm in Warren, VT. Vege- For a decade, we have spent billions Vermont’s economy, the worst effects table farming is Vermont’s fastest every single week on wars and projects of this storm are yet to come. For our growing agricultural sector, and, of in far-away lands. This is a time to dairy farmers, who are the bedrock of course, this is harvest season. Our start paying more attention to our our economy and keystones of our farmers were not able to pick these needs here at home and to the urgent communities, the toll of this disaster crops, this storm picked many fields needs of our fellow citizens. has been heavy and the crises has clean. I see my friend from Iowa on the lasted longer as they have struggled to Many Vermonters have highly pro- floor, and I yield the floor. take care of their animals while the ductive gardens that they have put up The PRESIDING OFFICER. The sen- floodwaters recede. for their families to get through the ior Senator from Iowa. This is a photograph of East winter by canning and freezing. Those AMENDMENT NO. 600 Pittsford, VT, taken by Lars Gange too have been washed away or are con- Mr. GRASSLEY. Mr. President, I rise just over a week ago. The water we see sidered dangerous for human consump- to rebut the points Senator SESSIONS is never there. It is there now. Look at tion because of the contaminated made, and I do acknowledge, as he said this farm’s fields, they are destroyed. floodwaters. Vermont farmers have a on the floor, that 2 or more years ago Look at homes damaged and think challenging and precarious future I was on the same page he is on this what that water has done. ahead of them as they look to rebuild issue. What has intervened, in the As I went around the state with our and plan for next year’s crops, knowing meantime, that causes me to differ Governor and Vermont National Guard that in our State it can be snowing in from the position Senator SESSIONS is General Dubie the first couple of days 11⁄2 or 2 months. taking? It is a district court case giv- after the storm hit, we went to these I have been heartened, however, by ing justice to a company—as one cli- places by helicopter and I cannot tell the many stories I have heard from ent—that was denied that sort of jus- you how much it tore at my heart to communities where people are coming tice because bureaucrats were acting in see the state, the birthplace to me, my together to help one another. For in- an arbitrary and capricious way. parents, and grandparents. To see stance, at the Intervale Community Senator SESSIONS makes the point roads torn up, bridges that were there Farm on the Winooski River, volun- you get equal justice under the law when my parents were children, washed teers came out to harvest the remain- from the judicial branch of government away. Historic covered bridges, mills, ing dry fields before the produce was and that Congress should not try to barns, businesses just gone and what it hit by still rising floodwaters. override that sort of situation. Con- has done to our farmers, it is hard, I When the rumors spread that Beth gress isn’t overriding anything with cannot overstate it. and Bob Kennett at Liberty Hill Farm the language in the House bill that he Our farmers have barns that are com- in Rochester had no power and needed wants to strike because that interest pletely gone, leaving no shelter for ani- help milking—well, people just started was satisfied by a judge’s decision; say- mals. They are left struggling to get showing up. By foot, on bike, all ready ing that a particular entity was denied water for their animals, to rebuild to lend a hand to help milk the cows. equal justice under the law because a fencing, to clean up debris from flooded Fortunately for them and for the poor bureaucrat, making a decision on just fields and barns, and then to get milk cows, the Vermont Department of Ag- exactly what counts as 60 days, was trucks to the dairy farms. Remember, riculture had managed to help get acting in an arbitrary and capricious these cows have to be milked every sin- them fuel and the Kennetts were milk- way. So this language in the House bill gle day. We also have farmers who do ing again, so asked the volunteer farm has nothing to do with helping a spe- not have any feed or hay for their ani- hands to go down the road, help some- cial interest. That special interest was mals because it all washed away. As body else and they did. satisfied by a judge who said an entity one farmer told me, the cows need to Coping with damage and destruction was denied equal justice under the law be milked two or three times every on this scale is beyond the means and because a bureaucrat was acting in an day, come hell or high water. This capability of a small State such as arbitrary and capricious manner. farmer thought he had been hit with ours, and Federal help with the re- This amendment is not about a spe- both, hell and high water. building effort will be essential to cial interest. This amendment is about

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.013 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5405 uniformity of law throughout the coun- was treating everybody the same, so The government does not deny that when try because it is wrong—as the judge everybody gets equal justice under the notice of FDA approval is sent after normal says—for a bureaucracy to have one law, they know what the law is, and business hours, the combination of the Pat- they don’t have to rely upon maybe ent and Trademark Office’s calendar day in- sort of definition of when 60 days be- terpretation and its new counting method ef- gins—whether it is after business some court decision in one part of the fectively deprives applicants of a portion of hours, if something goes out, or, if country that maybe they can argue in the 60-day filing period that Congress ex- something comes in, it includes the another part of the country, and also pressly granted them . . . Under PTO’s inter- day it comes in. So we are talking to tell bureaucrats, as the judge said, pretation, the date stamped on the FDA ap- about how we count 60 days, and it is that you can’t act in an arbitrary and proval letter starts the 60-day period for fil- about making sure there is a uniform capricious way. But bureaucrats might ing an application, even if the Food and Drug standard for that based upon law act in an arbitrary and capricious way, Administration never sends the letter . . . in a way unknown to them, if we don’t An applicant could lose a substantial por- passed by Congress and not upon one tion, if not all, of its time for filing a Patent judge’s decision that applies to one spe- have a uniform definition of what a Trademark Extension application as a result cific case. business day is. of mistakes beyond its control . . . An inter- I would say, since this case has been So I oppose the effort to strike sec- pretation that imposes such drastic con- decided, there are at least three other tion 37 from the patent reform bill for sequences when the government errs could entities that have made application to the reasons I have just given, but also not be what Congress intended. the Patent Office to make sure they for the reasons that were already ex- So the judge is telling us in the Con- would get equal justice under the law pounded by the chairman of this com- gress of the United States that because in the same way the entity that got mittee that at this late date, after 6 we weren’t precise, there is a question help through the initial decision of the years of trying to get a patent reform as to when Congress intended 60 days judge. So this is not about special re- bill done—and we haven’t had a patent to start to toll. And the question then lief for one company. This is about reform bill for over a decade, and it is is, If it is treated one way for one per- what is a business day and having a badly needed—we shouldn’t jeopardize son and another way for another per- uniform definition in the law of the the possible passage of this bill to the son, or if one agency treats it one way United States of what a business day President of the United States for his and another agency treats it another is, not based upon one district court signature by sending it back to the way, is that equal justice under the decision that may not be applied uni- other body and perhaps putting it in law? I think it is very clear that the formly around our Nation. jeopardy. But, most important, I think judge said it was not. I say the judge So it is about uniformity and not we ought to have a clear signal of what was correct. Congress certainly should about some bailout, as Senator SES- is a business day, a definition of it, and not expect nor allow mistakes by the SIONS says. It is not about some fero- this legislation and section 37 makes bureaucracy to up-end the rights and cious lobbying effort, as Senator SES- that very clear. provisions included in the Hatch-Wax- SIONS has said. It is not just because This past June, I addressed this issue man Act or any other piece of legisla- one person was 1 hour late or 1 day in a floor statement, and I want to tion we might pass. late, because how do you know whether quote from that because I wanted my The court ruled that when the Food they are 1 hour late or 1 day late if colleagues to understand why I hoped and Drug Administration sent a notice there is a different definition under one the House-passed bill would contain of approval after business hours, the 60- circumstance of when 60 days starts section 37 that was not in our Senate day period requesting patent restora- and another definition under other cir- bill but that was passed out of the tion begins the next business day. It is cumstances of when a 60-day period House Judiciary Committee unani- as simple as that. tolls? mously. Speaking as ranking member The House, by including section 37, Also, I would suggest to Senator SES- of the Senate Judiciary Committee takes the court case, where common SIONS that this is not Congress inter- now and back in June when I spoke, I sense dictates to protect all patent fering in a court case that is under ap- wanted the House Judiciary Committee holders against losing patent exten- peal because the government lost this to know that several Republican and sions as a result of confused counting case and the government is not appeal- Democratic Senators had asked me to calculations. Regrettably, misunder- ing. Now, there might be some other support this provision as well. standings about this provision have Section 37 resulted from a recent entity appealing for their own interests persisted, and I think you hear some of Federal court case that had as its gen- to take advantage of something that is those misunderstandings in the state- esis the difficulty the FDA—the Food very unique to them. ment by Senator SESSIONS. and Drug Administration—and the Pat- But just in case we have short memo- This provision does not apply to just ent Office face when deciding how to ries, I would remind my colleagues one company. The truth is that it ap- calculate Hatch-Waxman deadlines. that Congress does sometimes interject plies to all patent holders seeking to The Hatch-Waxman law of the 1980s itself into the appeal process, and I restore the patent term time lost dur- was a compromise between drug patent would suggest one time we did that ing FDA deliberations—in other words, holders and the generic manufacturers. very recently, maybe 6 years ago—and allowing what Hatch-Waxman tries to Under the Waxman-Hatch law, once a that may not be very recent, but it is accomplish: justice for everybody. In patent holder obtains market approval, not as though we never do it—and that recent weeks, it has been revealed that the patent holder has 60 days to re- was the Protection of Lawful Com- already three companies covering four quest the Patent Office to restore the drug patents will benefit by correcting merce Act of 2005, when Congress inter- patent terms—time lost because of the the government’s mistake. jected itself into an issue to protect FDA’s long deliberating process eating gun manufacturers from pending law- It does not cost the taxpayers money. up valuable patent rights. The Congressional Budget Office deter- suits. It happens that 81 Senators sup- The citation to the case I am refer- mined that it is budget-neutral. ported that particular effort to inter- ring to is in 731 Federal Supplement Section 37 has been pointed out as ject ourselves into a lawsuit. 2nd, 470. The court found—and I want maybe being anticonsumer, but it is So, Mr. President, in a more formal to quote more extensively than I did anything but anticonsumer. I would way, I want to repeat some of what I back in June. This is what the judge quote Jim Martin, chairman of the 60– said this past summer when I came to said about bureaucrats acting in an ar- Plus Association. He said: the Senate floor and suggested to the bitrary and capricious way and when House of Representatives that I would does the 60 days start. We simply can’t allow bureaucratic incon- appreciate very much if they would put sistencies to stand in the way of cutting- The Food and Drug Administration treats edge medical research that is so important into the statutes of the United States a submissions to the FDA received after its uniform definition of a business day to the increasing number of Americans over normal business hours differently than it the age of 60. This provision is a common- and not leave it up to a court to maybe treats communications from the agency sense response to a problem that unneces- set that standard so that it might not after normal business hours. sarily has ensnared far too many pharma- be applied uniformly and, secondly, to Continuing to quote from the deci- ceutical companies and caused inexcusable make sure it was done in a way that sion: delays in drug innovations.

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.014 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5406 CONGRESSIONAL RECORD — SENATE September 8, 2011 We have also heard from prominent have labeled it as something a lot ment rather than to have a clear, con- doctors from throughout the United more. A patent holder on a drug is en- sistent definition? Let’s actually try to States. They wrote to us stating that titled by statute to apply for an exten- put this issue to bed once and for all. section 67 ‘‘is critically important to sion of its patent term to compensate The provision may solidify Medco’s medicine and patients. In one case for any delay the Food and Drug Ad- patent term extension, but it applies alone, the health and lives of millions ministration approval process caused generally, not to this one company, as of Americans who suffer from vascular in actually bringing the drug to mar- has been suggested. It brings common disease are at stake . . . Lives are lit- ket. The patent holder not only has to sense to the entire filing system. erally at stake. A vote against this file the extension within 60 days begin- However, if the Senate adopts the provision will delay our patients access ning on the date the product received amendment of the Senator from Ala- to cutting-edge discoveries and treat- permission for marketing, but there is bama, it will lead to real conflict with ments. We urgently request your help some ambiguity as to when the date is the House. It is going to complicate, in preserving section 37.’’ that starts the clock running. delay, and probably end passage of this So section 37 improves our patent Only in Washington, DC, could the important bipartisan jobs-creating leg- system fairness through certainty and system produce such absurd results islation. Keep in mind, yesterday I said on the clarity, and I urge my colleagues to that the word ‘‘date’’ means not only floor that each one of us in this body join me in voting to preserve this im- something different between two agen- could write a slightly different patent portant provision as an end in itself, cies—the PTO and the FDA—but then bill. But we do not pass 100 bills, we but also to make sure we do not send it is given two different constructions pass 1. This bill is supported by both this bill back to the House of Rep- by the FDA. If this sounds kind of eso- Republicans and Democrats across the resentatives and instead get it to the teric, it is. I have been working on this political spectrum. People on both President, particularly on a day like for years and it is difficult to under- sides of the aisle have been working on today when the President is going to be stand. But the courts have codified it. this issue for years and years in both speaking to us tonight about jobs. I Let’s not try to change it yet again. bodies. We have a piece of legislation. What happens is that the FDA treats think having an updated patent law Does everybody get every single thing submissions to it after normal hours as will help invention, innovation, re- they want? Of course not. I am chair- being received the next business day. search, and everything that adds value man of the Senate Judiciary Com- But the dates of submissions from the to what we do in America and preserve mittee. I don’t have everything in this America’s greatness in invention and FDA are not considered the next busi- bill I want, but I have tried to get the advancement of science. ness day, even if sent after hours. To something that is a consensus of the In conclusion, I would say it is very complicate matters, the PTO recently large majority of the House and the clear to me that the court concluded changed its own method of defining Senate, and we have done this. that the Patent and Trademark Office, what is a ‘‘date.’’ In this instance, in this particular and not some company or its lawyers, If this sounds confusing even in amendment, the House expressly con- had erred, as is the implication here. A Washington, you can imagine how it is sidered this matter. They voted with a consistent interpretation ought to outside of the bureaucracy. Confusion bipartisan majority to adopt this pro- apply to all patent holders in all cases, over what constitutes the ‘‘date’’ for vision the amendment is seeking to and we need to resolve any uncertainty purposes of a patent extension has af- strike. With all due respect to the dis- that persists despite the court’s deci- fected several companies. The most no- tinguished Senator from Alabama, who sion. table case involves the Medicines Com- contributed immensely to the bill as I yield the floor. pany’s ANGIOMAX extension applica- ranking member of the committee last The PRESIDING OFFICER. The sen- tion request. Congress, I understood why he opposed ior Senator from Vermont is recog- The extension application was denied this provision when it was controver- nized. by the PTO because of the difference in sial and would have had Congress over- Mr. LEAHY. Mr. President, I thank how dates are calculated. MedCo chal- ride the PTO. But now that the PTO the distinguished Senator from Iowa lenged the PTO’s decision in court, and and court have resolved the matter as for his words, and I join with the Sen- last August the federal district court reflected in the bill, it is not worth de- ator from Iowa in opposing the amend- in Virginia held the PTO’s decision ar- laying enactment of much-needed pat- ment for two reasons. First, as just bitrary and capricious and MedCo re- ent reform legislation. It could help simply as a practical matter, the ceived its patent term extension. create jobs and move the economy for- amendment would have the effect, if it Just so we fully understand what ward. passed, of killing the bill because it is that means, it means PTO now abides We will have three amendments on not going to be accepted in the other by the court’s ruling and applies a sen- the floor today that we will vote on. body, and after 6 years or more of work sible ‘‘business day’’ interpretation to This one and the other two I strongly on the patent bill, it is gone. But also, the word ‘‘date’’ in the statute. The urge Senators, Republicans and Demo- on just the merits of it, the provision provision in the America Invents Act crats, just as the ranking member has this amendment strikes, section 37 of simply codifies that. urged, to vote them down. We have be- H.R. 1249, simply adopts the holding of Senator GRASSLEY has spoken to tween 600,000 and 700,000 patents appli- a recent district court decision codi- this. As he said a few weeks ago, this cations that are waiting to be taken fying existing law about how the Pat- provision ‘‘improves the patent system care of. We can unleash the genius of ent and Trademark Office should cal- fairness through certainty and clar- our country and put our entrepreneur culate 5 days for the purpose of consid- ity.’’ class to work to create jobs that can ering a patent term extension. So those This issue has been around for sev- let us compete with the rest of the are the reasons I oppose the amend- eral years and it was a controversial world. Let’s not hold it up any longer. ment to strike it. issue when it would have overturned We have waited long enough. We de- The underlying provision adopted by the PTO’s decision legislatively. For bated every bit of this in this body and the House is a bipartisan amendment this reason Senator GRASSLEY and oth- passed it 95 to 5. On the motion to pro- on the floor. It was offered by Mr. CON- ers opposed this provision when it ceed, over 90 Senators voted to proceed. YERS, and it has the support of Ms. came up several years ago. But now It has passed the House overwhelm- PELOSI and Mr. BERMAN on the Demo- that the court has ruled, it is a dif- ingly. It is time to stop trying to throw cratic side and the support of Mr. CAN- ferent situation. The PTO has agreed up roadblocks to this legislation. TOR, Mr. PAUL, and Mrs. BACHMANN on to accept the court’s decision. The pro- If somebody does not like the legisla- the Republican side. I have a very hard vision is simply a codification of cur- tion, vote against it. But this is the time thinking of a wider range of bi- rent law. product of years of work. It is the best partisan support than that. Is there anyone who truly believes it we are going to have. Let us get it The provision is simply about how makes sense for the word ‘‘date’’ to re- done. Let us unleash the ability and in- they are calculating filing dates for ceive tortured and different interpreta- ventive genius of Americans. Let us go patent extensions, although its critics tions by different parts of our govern- forward.

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.015 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5407 We have a patent system that has not the International Trade Commission that a tion for many years, and my colleagues been updated in over a half century, claim in a patent is invalid on any ground on the other side of the aisle who have yet we are competing with countries that the petitioner raised during a transi- tried to work on this important legisla- around the world that are moving light tional proceeding that resulted in a final tion and move it forward. I am sure it written decision. years ahead of us in this area. Let’s (E) The Director may institute a transi- has been challenging. I mean no offense catch up. Let’s put America first. Let’s tional proceeding only for a patent that is a to my colleagues about this legislation. get this bill passed. covered business-method patent. It simply is my perspective about I yield the floor. (2) EFFECTIVE DATE.—The regulations where we need to go as a country and AMENDMENT NO. 595 issued pursuant to paragraph (1) shall take how we get there. The PRESIDING OFFICER (Mrs. effect on the date that is 1 year after the I am excited that we live in an infor- date of enactment of this Act and shall apply HAGAN). The Senator from Washington. mation age. In fact, one of the things Ms. CANTWELL. Madam President, I to all covered business-method patents that I count very fortunate in my life issued before, on, or after such date of enact- is that this is the age we live in. I often call up Cantwell amendment No. 595. ment, except that the regulations shall not The PRESIDING OFFICER. The apply to a patent described in section think if I lived in the agrarian age, clerk will report. 6(f)(2)(A) of this Act during the period that a maybe I would be farming. That is also The bill clerk read as follows: petition for post-grant review of that patent of great interest, given the State of The Senator from Washington [Ms. CANT- would satisfy the requirements of section Washington’s interests in agriculture. WELL] proposes an amendment numbered 595. 321(c). Maybe I would live in the industrial Ms. CANTWELL. Madam President, I (3) SUNSET.— age when new factories were being ask unanimous consent the reading of (A) IN GENERAL.—This subsection, and the built. That would be interesting. But I regulations issued pursuant to this sub- love the fact that whether you are the amendment be dispensed with. section, are repealed effective on the date The PRESIDING OFFICER. Without that is 4 years after the date that the regula- talking about agriculture, whether you objection, it is so ordered. tions issued pursuant to paragraph (1) take are talking about automotive, whether The amendment is as follows: effect. you are talking about health care, (Purpose: To establish a transitional pro- (B) APPLICABILITY.—Notwithstanding sub- whether you are talking about soft- gram for covered business method patents) paragraph (A), this subsection and the regu- ware, whether you are talking about On page 119, strike line 21 and all that fol- lations implemented pursuant to this sub- communications, whether you are talk- lows through page 125, line 11, and insert the section shall continue to apply to any peti- ing about space travel, whether you are following: tion for a transitional proceeding that is talking about aviation, we live in an filed prior to the date that this subsection is SEC. 18. TRANSITIONAL PROGRAM FOR COVERED information age where innovation is BUSINESS-METHOD PATENTS. repealed pursuant to subparagraph (A). (c) REQUEST FOR STAY.— created every single day. In fact, we (a) REFERENCES.—Except as otherwise ex- pressly provided, wherever in this section (1) IN GENERAL.—If a party seeks a stay of are transforming our lives at a much language is expressed in terms of a section or a civil action alleging infringement of a pat- more rapid pace than any other genera- chapter, the reference shall be considered to ent under section 281 in relation to a transi- tion because of all that trans- be made to that section or chapter in title tional proceeding for that patent, the court formation. 35, United States Code. shall decide whether to enter a stay based I love the fact that the United States on— (b) TRANSITIONAL PROGRAM.— has been an innovative leader. I love (1) ESTABLISHMENT.—Not later than 1 year (A) whether a stay, or the denial thereof, will simplify the issues in question and the fact that the State of Washington after the date of enactment of this Act, the has been an innovative leader. If there Director shall issue regulations establishing streamline the trial; and implementing a transitional post-grant (B) whether discovery is complete and is one thing I pride myself on, it is rep- review proceeding for review of the validity whether a trial date has been set; resenting a State that has continued to of covered business-method patents. The (C) whether a stay, or the denial thereof, pioneer new technology and innova- transitional proceeding implemented pursu- would unduly prejudice the nonmoving party tions. So when I look at this patent ant to this subsection shall be regarded as, or present a clear tactical advantage for the bill, I look at whether we are going to and shall employ the standards and proce- moving party; and help the process of making innovation dures of, a post-grant review under chapter (D) whether a stay, or the denial thereof, will reduce the burden of litigation on the happen at a faster rate or more prod- 32, subject to the following exceptions and ucts and services to help us in all of qualifications: parties and on the court. (A) Section 321(c) and subsections (e)(2), (f), (2) REVIEW.—A party may take an imme- those industries I just mentioned or and (g) of section 325 shall not apply to a diate interlocutory appeal from a district whether we are going to gum up the transitional proceeding. court’s decision under paragraph (1). The wheels of the patent process. So, yes, I (B) A person may not file a petition for a United States Court of Appeals for the Fed- joined my colleagues who have been transitional proceeding with respect to a eral Circuit shall review the district court’s out here on the Senate floor, such as decision to ensure consistent application of covered business-method patent unless the Senator FEINSTEIN and others who de- established precedent, and such review may person or his real party in interest has been bated this issue of changing our patent sued for infringement of the patent or has be de novo. (d) DEFINITION.—For purposes of this sec- system to the ‘‘first to file,’’ which will been charged with infringement under that tion, the term ‘‘covered business method pat- patent. disadvantage inventors because ‘‘first ent’’ means a patent that claims a method or (C) A petitioner in a transitional pro- to file’’ will lead to big companies and corresponding apparatus for performing data ceeding who challenges the validity of 1 or organizations getting the ability to processing operations utilized in the prac- have patents and to slow down innova- more claims in a covered business-method tice, administration, or management of a fi- patent on a ground raised under section 102 nancial product or service, except that the tion. or 103 as in effect on the day prior to the term shall not include patents for techno- If you look at what Canada and Eu- date of enactment of this Act may support logical inventions. Solely for the purpose of rope have done, I don’t think anybody such ground only on the basis of— implementing the transitional proceeding in the world market today says: Oh, (i) prior art that is described by section authorized by this subsection, the Director my gosh, let’s change to the Canadian 102(a) (as in effect on the day prior to the shall prescribe regulations for determining date of enactment of this Act); or system because they have created in- whether a patent is for a technological in- credible innovation or let’s look to Eu- (ii) prior art that— vention. (I) discloses the invention more than 1 year (e) RULE OF CONSTRUCTION.—Nothing in rope because their ‘‘first to file’’ has prior to the date of the application for pat- this section shall be construed as amending created such innovation. ent in the United States; and or interpreting categories of patent-eligible In fact, when Canada switched to this (II) would be described by section 102(a) (as subject matter set forth under section 101. ‘‘first to file’’ system, that actually in effect on the day prior to the date of en- Ms. CANTWELL. Madam President, slowed down the number of patents actment of this Act) if the disclosure had simply my amendment restores section filed. So I have that concern about this been made by another before the invention 18 of the language that was passed out legislation. thereof by the applicant for patent. But we have had that discussion here (D) The petitioner in a transitional pro- of the Senate. Basically it implements ceeding, or his real party in interest, may the Senate language. on the Senate floor. I know my col- not assert either in a civil action arising in I come to the floor today with much league is going to come to the floor and whole or in part under section 1338 of title 28, respect for my colleague Chairman talk about fee diversion, which reflects United States Code, or in a proceeding before LEAHY, who has worked on this legisla- the fact that the Patent Office actually

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.016 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5408 CONGRESSIONAL RECORD — SENATE September 8, 2011 collects money on patents. That is a there. It was put into the managers’ change in the patent business method very viable way to make the Patent Of- amendment which was brought to the language and the whole process that is fice effective and efficient because it Senate floor with little or no debate going to go on. Instead, we would be can take the money it collects from because people wanted to hurry and get moving forward with predictability and these patents and use it to help speed the managers’ amendment adopted. certainty. up the process of verifying these pat- Now, I objected to that process in I ask my colleagues to just help this ents and awarding them. But the Sen- driving this language because I was process. Help this process move for- ate chose good action on this issue, and concerned about it. I sought colloquy ward by going back to the Senate lan- good measure, and simply said that the at that point in time and was not able guage. I know my colleagues probably money collected by the Patent Office to get one from any of my colleagues, want to hurry and get this process should stay in the Patent Office budg- and I so opposed this legislation. Well, done, but I guarantee this language et. now this legislation has been made with the Senate version could easily go But that is not what the House has even worse in the House of Representa- back to the House of Representatives done. The House has allowed that tives by saying that this language, and be passed. What I ask my col- money to be diverted into other areas which would nullify patents—that is leagues to think about is how many of appropriations, and the consequence right. The Senate would be partici- companies are also going to get caught will be that this patent reform bill will pating in nullifying patents that the in this process by the desire of some to basically be taking the economic en- Patent Office has already given to help the big banks get out from under gine away from the Patent Office and companies, and it can now go on for 8 something the courts have already said spreading it out across government. So years—8 years is what the language they don’t deserve to get out of. the reform that we would seek in pat- says when it comes back from the I hope we can bring closure to this ents, to make it a more expeditious House of Representatives. issue, and I hope we can move forward process, is also going to get down. All I am asking my colleagues to do on something that gives Americans the I could spend my time here today today is go back to the Senate lan- idea that people in Washington, DC, talking about those two things and my guage they passed. Go back to the Sen- are standing up for the little guy. We concerns about them, but that is not ate language that at least says this are standing up for inventors. We are even why I am here this morning. I am earmark they are giving to the big standing up for those kinds of entre- here to talk about how this legislation banks so they can invalidate a patent preneurs, and we are not spending our has a rifleshot earmark in it for a spe- by a company because they don’t like time putting earmark rifle shot lan- cific industry, to try to curtail the val- the fact they have to pay a royalty on guage into legislation to try to assuage idation of a patent by a particular check imaging processing to them—I large entities that are well on their company. That is right, it is an ear- am sorry you don’t like to pay the roy- way to taking care of themselves. mark rifleshot to try to say that banks alty. But when somebody innovates I hope if my colleagues have any no longer have to pay a royalty to a and makes the technology, they have questions on this language as it relates particular company that has been the right to charge a royalty. You have to their individual States, they would awarded a patent and that has been been paying that royalty. I am sorry, contact our office and we would be upheld in court decisions to continue big banks, if you don’t like paying that happy to share information with them. to be paid that royalty. royalty anymore. You are making a lot I yield the floor and suggest the ab- That is why I am here this morning. of money. Trying to come to the Sen- sence of a quorum. You would say she is objecting to that ate with an earmark rifle shot to X out The PRESIDING OFFICER. The earmark, she is objecting to that per- that competition because you don’t clerk will call the roll. sonal approach to that particular in- want to pay for that technology—that The legislative clerk proceeded to dustry giveaway in this bill. Actually, is not the way the Senate should be op- call the roll. I am concerned about that, but what I erating. Mr. SCHUMER. Madam President, I am concerned about is, given the way The fact that the language is so ask unanimous consent that the order they have drafted this language to ben- broad that it will encompass other for the quorum call be rescinded. efit the big banks of America and screw technologies is what has me concerned. The PRESIDING OFFICER. Without a little innovator, this is basically If all my colleagues want to vote for objection, it is so ordered. drafted so broadly that I am worried this special favor for the big banks, go Mr. SCHUMER. Madam President, I that other technology companies are ahead. The fact that my colleagues are rise today to urge this body to com- going to get swept up in the definition going to basically pull us in to having plete the extensive work that has been and their patents are also going to be other companies covered under this is a done on the Leahy-Smith America In- thrown out as invalid. That is right. big concern. vents Act and send this bill to the Every State in the United States could The section I am concerned about is President for signature. have a company that, under this lan- business method patents, and the term The America Invents Act has been guage, could now have someone deter- ‘‘covered business method patent’’ years in the making. The time has mine that their patent is no longer via- means patents or claims or method or come to get this bill done once and for ble even though the Patent Office has corresponding apparatus for per- all. awarded them a patent. Companies forming data processing or other oper- The importance of patent law to our that have revenue streams from royal- ations. What does ‘‘or other oper- Nation has been evidenced since the ties that are operating their companies ations’’ mean? How many companies in founding. The Constitution sets control could now have their bank financing, America will have their patents chal- over patent law as one of the enumer- everything pulled out from under them lenged because we don’t know what ‘‘or ated powers of the Congress. Specifi- because they no longer have royalty other operations’’ means? How many? cally, it gives the Congress the power streams. Businesses could lay off peo- How many inventors will have their ‘‘To promote the Progress of Science ple, businesses could shut down, all be- technology basically found null and and useful Arts, by securing for limited cause we put in broad language in the void by the court process or the Patent Times to Authors and Inventors the ex- House version that exacerbates a prob- Office process because of this confusing clusive Right to their respective lem that was in the Senate version to language? Writings and Discoveries.’’ begin with. I am here to ask my colleagues to do Today we take an important step to- Now I could say this is all a process a simple thing: revert to the Senate ward ensuring that the constitutional and legislation follows a process, but I language. It is not a perfect solution. If mandate of Congress is met as we mod- object to this process. I object to this I had my way, I would strip the lan- ernize our patent system. This bill is language that benefits the big banks guage altogether. If I had my way, I the first major overhaul of our patent but was never debated in the com- would have much more clarity and pre- laws in literally decades. mittee of jurisdiction, the Judiciary dictability to patent lawyers and the My colleagues have spoken at length Committee. It was not debated. It was Patent Office so the next 3 or 4 years about the myriad ways the America In- not voted on. It was not discussed will not be spent in chaos between this vents Act will bring our patent law

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.018 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5409 into the 21st century. What I want to tion 18 from all of these organizations the U.S. Patent and Trademark Office (PTO) focus on, of course, is jobs. be printed in the RECORD. fund the office and its administration of the The America Invents Act is fun- There being no objection, the mate- patent system. PTO faces significant chal- damentally a jobs bill. Innovation and rial was ordered to be printed in the lenges, including a massive backlog of pend- ing applications, and this backlog is stifling RECORD, as follows: intellectual property has always been domestic innovators. The fees that PTO col- and always will be at the heart of the INDEPENDENT COMMUNITY lects to review and approve patent applica- American economy. By rewarding BANKERS OF AMERICA, tion are supposed to be dedicated to PTO op- innovators for inventing newer and Washington, DC, June 14, 2011. eration. However, fee diversion by Congress better products, we keep America’s cre- HOUSE OF REPRESENTATIVES, has hampered PTO’s efforts to hire and re- ative and therefore economic core Washington, DC. tain a sufficient number of qualified exam- DEAR MEMBER OF CONGRESS: On behalf of iners and implement technological improve- healthy. ICBA’s nearly 5,000 community bank mem- Over the last few decades, however, ments necessary to ensure expeditious bers, I write to voice strong support for Sec- issuance of high quality patents. Providing innovation has outpaced our patent tion 18 of the America Invents Act (H.R. PTO with full access to the user fees it col- system. We have an enormous backlog 1249), which addresses the issue of poor-qual- lects is an important first step toward reduc- at the PTO. The result of this backlog ity business-method patents. I strongly urge ing the current backlog of 1.2 million appli- is that it is much harder for creators to you to oppose efforts to strike or weaken the cations waiting for a final determination and obtain the property rights they deserve language in Section 18, which creates a pro- pendency time of 3 years, as well as to im- gram to review business-method patents in their inventions. That challenge in prove patent quality. against he best prior art. In addition, the legislation would help en- turn makes it harder for inventions to Poor-quality business-method patents rep- sure that the U.S. remains at the forefront of be marketed and sold, which reduces resent an extremely problematic aspect of innovation by enhancing the PTO process the incentive to be innovative. Eventu- the current system for granting, reviewing and ensuring that all inventors secure the ally, this vicious cycle becomes poi- and litigating patents. The problems with exclusive right to their inventions and dis- sonous. low-quality patents are well documented and coveries. The bill shifts the U.S. to a first-in- The America Invents Act cuts this beyond dispute. On an escalating basis, fi- ventor-to-file system that we believe is both nancial firms are the target of meritless pat- constitutional and wise, ending expensive in- cycle by making our patent system ent lawsuits brought by non-practicing enti- more efficient and reliable. By pro- terference proceedings. H.R. 1249 also con- ties. Such entities exploit flaws in the cur- tains important legal reforms that would viding the Patent and Trademark Of- rent system by bringing action in friendly help reduce unnecessary litigation against fice the resources it needs to reduce venues, where they wring money from legiti- American businesses and innovators. Among the backlog of nearly 700,000 patent ap- mate businesses by asserting low-quality the bill’s provisions, Section 16 would put an plications, the bill will encourage the business-method patents. end to frivolous false patent marking cases, Section 18 addresses this problem by estab- innovation that will create and protect while still preserving the right of those who lishing an oppositional proceeding at the suffered actual harm to bring actions. Sec- American jobs. In addition, the bill United States Patent and Trademark Office tion 5 would create a prior user right for streamlines review of patents to ensure (PTO), where business-method patents can be those who first commercially use inventions, that the poor-quality patents can be re-examined, using the best prior art, as an protecting the rights of early inventors and alternative to costly litigation. This pro- weeded out through administrative re- giving manufacturers a powerful incentive to gram applies only to business-method pat- view rather than costly litigation. build new factories in the United States, ents, which are defined using suggestions I am especially pleased that H.R. 1249 while at the same time fully protecting uni- contains the Schumer-Kyl provisions proffered by the PTO. Concerns about the scope of the definition have been addressed versities. Section 19 also restricts joinder of that we originally inserted in the Sen- by exclusion of technological innovations. defendants who have tenuous connections to ate to help cut back on the scourge of Additionally, it has been well-settled law for the underlying disputes in patent infringe- business method patents that have over 25 years that post-grant review of pat- ment suits. Section 18 of H.R. 1249 provides been plaguing American businesses. ent validity by the PTO is constitutional. for a tailored pilot program which would Business method patents are anathema The Federal Circuit explained that a defec- allow patent office experts to help the court review the validity of certain business meth- to the protection that the patent sys- tively examined and therefore erroneously granted patent must yield to the reasonable od patents using the best available prior art tem provides because they apply not to as an alternative to costly litigation. novel products or services but to ab- Congressional purpose of facilitating the cor- rection of governmental mistakes. This Con- The Chamber strongly opposes any amend- stract and often very common concepts gressional purpose is presumptively correct ments to H.R. 1249 that would strike or of how to do business. Often business and constitutional. Congress has given the weaken any of the important legal reform method patents are issued for practices PTO a tool to ensure confidence in the valid- measures in this legislation, including those that have been in widespread use for ity of patents. Section 18 furthers this im- found in Sections 16, 5, 19 and 18. The Cham- portant public purpose by restoring con- ber supports H.R. 1249 and urges the House to years, such as check imaging or one- expeditiously approve this necessary legisla- click checkout. Imagine trying to pat- fidence in business-method patents. I urge you to oppose changes to Section 18, tion. ent the one-click checkout long after including changes that would create a loop- Sincerely, people have been using it. hole allowing low-quality business-method R. BRUCE JOSTEN, Because of the nature of the business patent holders to wall off their patents from Executive Vice President, methods, these practices aren’t as eas- review by the PTO. Congress should ensure Government Affairs. ily identifiable by the PTO as prior art, that final patent-reform legislation address- and bad patents are issued. Of course, es the fundamental, and increasingly costly, NATIONAL RETAIL FEDERATION, Washington, DC, June 21, 2011. this problem extends way beyond the problem of poor-quality business-method Hon. LAMAR S. SMITH, financial services industry. It includes patents. Sincerely, Chairman, Committee on the Judiciary, House all businesses that have financial prac- CAMDEN R. FINE, of Representatives, Washington, DC. tices, from community banks to insur- President and CEO. Hon. JOHN CONYERS, Jr., ance companies to high-tech startups. Ranking Member, Committee on the Judiciary, Section 18, the Schumer-Kyl provision, CHAMBER OF COMMERCE House of Representatives, Washington, DC. allows for administrative review of OF THE UNITED STATES OF AMERICA, DEAR CHAIRMAN SMITH AND RANKING MEM- those patents so businesses acting in Washington, DC, June 14, 2011. BER CONYERS: I am writing in support of Sec- tion 18 of H.R. 1249, the American Invents good faith do not have to spend the TO THE MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES: The U.S. Chamber of Act of 2010. This provision would provide the millions of dollars it costs to litigate a Commerce, the world’s largest business fed- Patent and Trademark Office (PTO) the abil- business method patent in court. eration representing the interests of more ity to re-examine qualified business method That is why the provision is sup- than three million businesses and organiza- patents against the best prior art. ported not only by the Financial Serv- tions of every size, sector, and region, sup- As the world’s largest retail trade associa- ices Roundtable and the Community ports H.R. 1249, the ‘‘America Invents Act,’’ tion, the National Retail Federation’s global Bankers, but by the Chamber of Com- which would encourage innovation and bol- membership includes retailers of all sizes, formats and channels of distribution as well merce, the National Retail Foundation, ster the U.S. economy. The Chamber believes this legislation is crucial for American eco- as chain restaurants and industry partners and in my home State by the Partner- nomic growth, jobs, and the future of U.S. from the U.S. In the U.S., NRF represents ship for a Greater New York. competitiveness. the breadth and diversity of an industry with Madam President, I ask unanimous A key component of H.R. 1249 is section 22, more than 1.6 million American companies consent that letters in support of sec- which would ensure that fees collected by that employ nearly 25 million workers and

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.029 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5410 CONGRESSIONAL RECORD — SENATE September 8, 2011 generated 2010 sales of $2.4 trillion. Retailers change was made to accommodate in- monumental legislation. He has have been inundated by spurious claims, dustry concerns that 4 years was short worked hard on this for many years, many of which, after prolonged and expen- enough, that bad actors would just and I wish to pay a personal tribute to sive examination, are subsequently found to be less than meritorious. wait out the program before bringing him. Increasingly, retailers of all types are their business method patent suits. I also wish to recognize the efforts of being sued by non-practicing entities for in- The lying-in-wait strategy would be my colleague from Vermont, Senate fringing low-quality business method patents possible under the Cantwell amend- Judiciary Committee chairman PAT- which touch all aspects of our business: mar- ment because section 18 only allows RICK LEAHY. Over the years, he and I keting, payments, and customer service to transitional review proceedings to be have worked tirelessly to bring about name a few aspects. A vast majority of these initiated by those who are facing law- long overdue reform to our Nation’s cases are brought in the Eastern District of Texas where the statistics are heavily suits. patent system, and I personally appre- weighted against defendants forcing our On a 20-year patent, it is not hard to ciate PAT for his work on this matter. members to settle even the most meritless wait 4 years to file suit and therefore I also wish to recognize the efforts of suits. avoid scrutiny under a section 18 re- Senate Judiciary Committee ranking Section 18 moves us closer to a unified pat- view. It would be much harder, how- member CHUCK GRASSLEY of Iowa, as ent system by putting business method pat- ever, to employ such an invasive ma- well as many other Senate colleagues ents on par with other patents in creating a neuver on a program that lasts 8 years. who have been instrumental in this post-grant, oppositional proceeding that is a Second, the Cantwell amendment legislative process. lower cost alternative to costly patent liti- gation. The proceeding is necessary to help changes the definition of business The Constitution is the supreme law ensure that the revenues go to creating jobs method patents to eliminate the House of the land and the shortest operating and bringing innovations to our customers, clarification that section 18 goes be- Constitution in the world. America’s not paying litigation costs in meritless pat- yond mere class 705 patents. Originally, Founders put only the most essential ent infringement litigation. class 705 was used as the template for provisions in it, listing the most essen- We appreciate the opportunity to support the definition of business method pat- tial rights of individuals and the most this important section and oppose any ef- ents in section 18. However, after the essential powers the Federal Govern- forts to strike or weaken the provision. ment should have. What do we think Please do not hesitate to contact me with bill passed the Senate, it became clear any questions. that some offending business method made it on to that short list? Raising Best regards, patents are issued in other sections. So and supporting the Army and main- DAVID FRENCH, the House bill changes the definition taining the Navy? No question there. Senior Vice President, only slightly so that it does not di- Coining money? That one is no sur- Government Relations. rectly track the class 705 language. prise. But guess what else made the Mr. SCHUMER. A patent holder Finally, the Cantwell amendment list. Here is the language: The Found- whose patent is solid has nothing to limits who can take advantage of sec- ers granted to Congress the power ‘‘To fear from a section 18 review. Indeed, a tion 18 by eliminating access to the promote the Progress of Science and good patent will come out of such a re- program by privies of those who are useful Arts, by securing for . . . Au- view strengthened and validated. The sued. Specifically, H.R. 1249 allows par- thors and Inventors the exclusive only people who have any cause to be ties who have shared interests with a Right to their Respective Writing and concerned about section 18 are those sued party to bring a section 18 pro- Discoveries.’’ who have patents that shouldn’t have ceeding. The Cantwell amendment In other words, the governance of been issued in the first place and who would eliminate that accommodation. patents and copyrights is one of the es- were hoping to make a lot of money All of the House changes to section 18 sential, specifically enumerated powers suing legitimate businesses with these of the Senate bill are positive, and I be- given to the Federal Government by illegitimate patents. To them I say the lieve we should keep them. But to my our Nation’s Founders. In my view, it scams should stop. colleagues I would say this in closing: is also one of the most visionary, for- In fact, 56 percent of business patent The changes Senator CANTWELL has ward-looking provisions in the entire lawsuits come in to one court in the proposed do not get to the core of the U.S. Constitution. Eastern District of Texas. Why do they bill, and the most profound effect they Thomas Jefferson understood that all go to one court? Not just because of would have is to delay passage of the giving people an exclusive right to coincidence. Why do people far and bill by requiring it to be sent back to profit from their inventions would give wide seek this? Because they know the House, which is something, of them ‘‘encouragement . . . to pursue that court will give them favorable course, we are all having to deal with ideas which may produce utility.’’ Yet proceedings, and many of the busi- on all three of the amendments that Jefferson also recognized the impor- nesses that are sued illegitimately are coming up. tance of striking a balance when it spend millions of dollars for discovery I urge my colleagues to remember came to granting patents—a difficult and everything else in a court they be- that this bill and the 200,000 jobs it task. He said: lieve they can’t get a fair trial in, so would create are too important to I know well the difficulty of drawing a line they settle. That shouldn’t happen, and delay it even another day because of between the things which are worth to the that is what our amendment stops. It minor changes to the legislation. I urge public the embarrassment of an exclusive simply provides review before costly my colleagues to vote against the patent and those which are not. litigation goes on and on and on. amendment of my good friend MARIA As both an inventor and a statesman, Now, my good friend and colleague, CANTWELL and move the bill forward. he understood that granting a person Senator CANTWELL, has offered an With that, I yield the floor. an exclusive right to profit from their amendment that would change the sec- The PRESIDING OFFICER. The Sen- invention was not a decision that tion 18 language and return to what the ator from Utah. should be taken lightly. Senate originally passed last March. Mr. HATCH. Madam President, I rise This bill is not perfect, but I am Essentially, Senator CANTWELL is ask- to express my continued support for pleased with the deliberative process ing the Senate to return to the original the America Invents Act. We have been that led to its development, and I am Schumer-Kyl language. Of course, I working on patent reform legislation confident that Congress followed Jef- don’t have an inherent problem with for several years now—in fact, almost ferson’s lead in striking a balanced ap- the original Schumer-Kyl language. the whole time I have been in the Sen- proach to patent reform. However, while I might ordinarily be ate—so it is satisfying to see the Sen- There can be no doubt that patent re- inclined to push my own version of the ate again voting on this bipartisan bill. form is necessary, and it is long over- amendment, I have to acknowledge It is important to note that this bill due. Every State in the country has a that the House made some significant before us is the same one that was vested interest in an updated patent improvements in section 18. passed by the Republican-controlled system. When patents are developed First, H.R. 1249 extends the transi- House of Representatives in June. I commercially they create jobs, both tional review program of section 18 commend House Judiciary chairman for the company marketing products from 4 to 8 years in duration. This LAMAR SMITH for his leadership on this and for their suppliers, distributors,

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.005 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5411 and retailers. One single deployed pat- tronic communications, to bio- agreement about maintaining congres- ent affects almost all sectors of our technology, to computer games. sional oversight—I believe this is one economy. Like my fellow Utahns, citizens area that should be reconsidered. It is Utahns have long understood this re- across the country recognize that tech- just that important. That is why I sup- lationship. Ours is a rich and diverse nological development is integral to port Senator TOM COBURN’s amend- and inventive legacy. In the early the well-being of our economy and the ment. If passed, his amendment will 1900s, a young teenager approached his prosperity of our families and commu- preserve congressional oversight and teacher after class with a sketch he nities. As technology advances, it is give the USPTO the necessary flexi- had been working on. It was a drawing necessary at times to make adjust- bility to operate during these critical inspired by the rows of dirt in a potato ments that will ensure Congress is pro- times. field the teenager had recently plowed. moting the healthy progress of science The House-passed compromise lan- After examining the sketch, the teach- and useful arts. guage is a step in the right direction, er told the young student that he The America Invents Act will im- especially since the chairman of the should pursue his idea, and he did. prove the patent process, giving inven- House Appropriations Committee has That teenager was Philo Farnsworth, a tors in Utah and across the country committed that all fees collected by Utah native who went on to patent the greater incentives to innovate. the USPTO in excess of its annual ap- first all-electronic television. Strengthening of our patent system propriated level will be available to the Farnsworth had to fight for many will not only help lead us out of these USPTO. However, I remain concerned years in court to secure the exclusive tough economic times, but it will help that the budget uncertainties that rights to his patent, but he continued us maintain our competitive edge both exist today may negatively impact the to invent, developing and patenting domestically and abroad. Take, for ex- USPTO and its ability to implement hundreds of other inventions along the ample, the transition to a first-inven- many of the new responsibilities re- way. tor-to-file system and the establish- quired by the America Invents Act. Another Utah native developed a way ment of a post-grant review procedure. I remain concerned about some provi- to amplify sound after he had trouble These changes alone will decrease liti- sions the House either expanded or hearing in the Mormon Tabernacle. His gation costs so that small companies added. On balance, however, the headphones were later ordered by the and individuals will not be dissuaded positives of this legislation far out- Navy for use during World War I. His from protecting their patent rights by weigh the negatives, and I am con- name was Nathaniel Baldwin. companies with greater resources. fident it will contribute to the greater William Clayton, an early Mormon This bill provides the USPTO with innovation and productivity our econ- pioneer, grew tired of manually count- rulemaking authority to set or adjust omy demands. It provides essential im- ing and calculating how far his wagon its own fees for 7 years without requir- provements to our patent system, such company had traveled each day. So, in ing a statutory change every time an as changes to the best mode disclosure the middle of a journey across the adjustment is needed. Providing the requirement; expansion of the prior plains, he and others designed and built USPTO with the ability to adjust its user rights defense to affiliates, with a roadometer, a device that turned own fees will give the agency greater an exemption for university-owned pat- screws and gears at a set rate based on flexibility and control, which, in the ents; incentives for government labora- the rotation of the wagon wheel. It long run, will benefit inventors and tories to commercialize inventions; re- worked based on the same principles businesses. strictions on false marking claims; re- that power modern odometers. The legislation enables patent hold- moval of restrictions on the residency John Browning, the son of a pioneer, ers to request a supplemental examina- of Federal circuit judges; clarification revolutionized the firearm, securing tion of a patent if new information of tax strategy patents; providing as- his inventions through a patent. He is arises after the initial examination. By sistance to small businesses through a known all over the world for the work establishing this new process, the patent ombudsman program and estab- he did. USPTO would be asked to consider, re- lishing additional USPTO satellite of- Robert Jarvik, who worked at the consider, or correct information be- fices. University of Utah—a wonderful doctor lieved to be relevant to the patent. We all know every piece of legisla- whom I know personally—invented the Further, this provision does not limit tion has its shortcomings. That is the first successful permanent artificial the USPTO’s authority to investigate reality of our legislative process. How- heart while at the University of Utah. misconduct or to sanction bad actors. I ever, taken as a whole, the America In- These and countless other stories il- am confident this new provision will vents Act further builds upon our coun- lustrate the type of ingenuity that was remove the uncertainty and confusion try’s rich heritage of intellectual prop- required by the men and women who that defines current patent litigation, erty protections—a cornerstone pro- founded Utah, the type of ingenuity and I believe it will enhance patent vided by article I, section 8 of the Con- that has been exemplified in every gen- quality. eration since. The America Invents Act creates a stitution. Last year, Utah was recognized as mechanism for third parties to submit Passage of the America Invents Act one of the most inventive States in the relevant information during the patent will update our patent system, help Union. Such a distinction did not sur- examination process. This provision strengthen our economy, and provide a prise me, especially since the Univer- will provide the USPTO with better in- springboard for further improvements sity of Utah recently logged the uni- formation about the technology and to our intellectual property laws. I versity’s 5,000th invention disclosure claimed invention by leveraging the urge all of my colleagues to join in this and has over 4,000 patent applications knowledge of the public. This will also monumental undertaking, and I appre- filed to date. This impressive accom- help the agency increase the efficiency ciate those who have worked so hard plishment follows on the heels of news of examination and the quality of pat- on these programs. Again, I mentioned that the University of Utah overtook ents. with particularity the Congressman MIT in 2009 to become America’s No. 1 This bill would create a reserve fund from Texas, LAMAR SMITH, and also my research institution for creating start- for user fees that exceed the amount friend and colleague, Senator LEAHY, up companies based on university tech- appropriated to the USPTO. I prefer and others as well, Senator GRASSLEY nology. the language in the Senate-passed bill, especially. There are others as well A group of students at Brigham which created a new revolving fund for whom I should mention, but I will Young University recently designed a the USPTO separate from annual ap- leave it at that for this particular circuit that was launched with the propriations. Certainty is important time. shuttle Endeavour, and another group for future planning, but the appropria- I suggest the absence of a quorum. developed a prosthetic leg that costs tions process is far from reliable. The PRESIDING OFFICER. The $25 versus the $10,000 a prosthetic leg While conceptually I understand why clerk will call the roll. may typically cost. Utah inventors our House counterparts revised the The legislative clerk proceeded to contribute to everything from elec- Senate-passed language—and I am in call the roll.

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.030 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5412 CONGRESSIONAL RECORD — SENATE September 8, 2011 Mr. HOEVEN. Mr. President, I ask If you look at this next chart, we Let me talk about some of the kinds unanimous consent that the order for talk about unemployment. Here you of laws and legislation we need to pass the quorum call be rescinded. see annual unemployment. Currently to make sure that happens. The PRESIDING OFFICER (Mr. we are at 9.1 percent. We have been Not too long ago, President Obama COONS). Without objection, it is so or- there for an extended period of time. issued an Executive order. I hope it is dered. Again, that represents more than 14 something he talks about this evening THE ECONOMY million people who are unemployed in his address to the joint session of Mr. HOEVEN. Mr. President, I rise that we need to get back to work. Congress. In that Executive order, he today to speak on a matter of great im- The other thing you will notice on said all of the agencies—all of the Fed- portance to our country, and that is this chart is the blue line. This blue eral agencies—need to look at their jobs and our economy. I know the line is the chart for my home State. regulations, at their existing regula- President will be speaking this There you will see our unemployment tions and any regulations they are put- evening. I want to emphasize the im- is about 3.2 to 3.3 percent. For the last ting out, and make sure that if those portance that we focus on a long-term decade in our State, we have focused on regulations are costly, burdensome, if strategy to get our economy going. By a progrowth, pro-jobs economic strat- they do not make sense, if they are that I mean a pro-jobs, progrowth eco- egy. By that I mean building the best outmoded or outdated, they are elimi- nomic strategy for our country. possible business climate, making sure nated, they are stripped away, so we The things that go into that include we live within our means, and building empower people and companies building the best possible business cli- a comprehensive energy approach to throughout this great country to do mate. We have got to have a business develop all of our energy resources. business. He said in that Executive climate that will stimulate private in- There is no reason we cannot do the order make sure all of our agencies vestment, that will stimulate entrepre- same thing at the Federal level. In look at their regulations and eliminate neurship, ingenuity, that will stimu- fact, we need to do exactly that at the those that do not make sense, that are late job creation by businesses small costly, and that are burdensome, so we and large across our economy. We need Federal level. So I am here today to talk about some of the things we need can stimulate economic activity and to build a strong business climate. We job creation in this country. I think we need a long-term, progrowth economic to do to make that happen. The first is that I emphasize by need to do exactly that. In fact, let’s strategy to do that. make it a law. Let’s make it the law We also need to control our spending building a good business climate, I that all of the regulatory agencies need and live within our means. We need a mean a legal, tax, and regulatory cer- to look at their existing regulations comprehensive energy policy. All three tainty so businesses know the rules of and any regulations they are looking of these things go into the right kind the road so they can invest. They can at putting out, to make darn sure they of long-term comprehensive approach invest shareholders’ dollars so entre- are clear, straightforward, understand- this country needs to get our economy preneurs can start new businesses, so growing and get people back to work. existing businesses can expand. But to able, that they are workable, and not I wish to start by taking a minute to do that, they need to know the rules of only that our regulations are clear and look at our current situation, to talk the road. They need to know what our understandable, that the regulators about where we are. If you look at un- tax policy is. Right now we have a tax work with Americans and American employment, unemployment is more policy that expires at the end of the companies to make sure they under- than 9 percent, and it has been more next year. So how do you as a business stand them and they are able to meet than 9 percent for an extended period person go out there and start making them so they can pursue their business of time. Weekly jobless claims: more investments when you do not know plans, their business growth, their than 400,000. We have more than 14 mil- what the tax policy is going to be be- business investment, and that they lion people who are out of work. That yond the end of next year? We need tax hire and put people back to work. That does not include people who are under- reform. is how it is supposed to work. Together, Senator PAT ROBERTS of employed or people who are no longer How about regulation? We have an Kansas, myself, and others have put looking for work because they have incredible regulatory burden. How do forward the Regulatory Responsibility been discouraged and are not included you go out there and make an invest- for Our Economy Act. That is just in the workforce—14 million people we ment, get a business going, hire people, what it says. How much more bipar- need to get back to work. if you do not know what the regulatory tisan can we get than that? The Presi- We also have a tremendous deficit requirements are? We need to reduce dent puts out an Executive order say- problem. If you look at our revenues that regulatory burden. today, we have revenues of about $2.2 ing we need to roll back some of these We need to pass trade agreements so trillion. Our spending is at a rate of regulations that are burdening our our companies can sell not just here in $3.7 trillion. That is a $1.5 trillion def- business base, and we as Republican the United States but they can sell icit. That is adding up to more than a Senators say: Okay, here is an act to globally. If you look at the history of $14 trillion dollar debt—a $14 trillion put that Executive order into law. our country, that is how we have grown debt that weighs on our economy. If we Let’s work together in a bipartisan this economy, how we have become the do not deal with it, it is a debt our way to reduce this regulatory burden most dynamic economic engine in the children will have to pay. That is not that is stifling economic growth and world. It is through that private in- acceptable for us and we have to deal job creation in our country. vestment, that entrepreneurship, that with it at the same time we get this That is what Congress is supposed to economy going. American ingenuity. do. That is what we need to do. That is If you look at our current situation, The role of government is to create a what the people of this country want we are borrowing 40 cents of every dol- business climate that unleashes that us to do on a bipartisan basis. lar we spend, and deficit and our debt potential. We have got to roll back the When the President comes to the is growing at $4 billion a day. I brought regulatory burden. We have got to cre- Capitol this evening and talks about some graphs so we can look at it ate clear, understandable rules and tax how we get business going, let’s get it graphically. Here you see revenues and policy to follow so these companies can going by reducing this regulatory bur- spending. make these investments, get those 14- den so private investment can get peo- Unfortunately, the spending line is plus million people back to work, get a ple back to work in this country. It is the red line along the top here. Spend- growing economy, at the same time not about more government spending, ing is more than $3.7 trillion a year. At that we get a grip on our spending and it is about private investment and ini- the same time, our revenues are $2.2 start living within our means. That is tiative. We have to create the frame- trillion. That gap is a $1.5 trillion how we not only raise our standard of work to make it happen. We can do it, budget deficit we are accumulating on living and our quality of life, but we and we can do it on a bipartisan basis. an annual basis. As I say, it is now make sure we do not pass on a huge Another example is that the United leading to a debt that is more than $14 debt to our children and our grand- States has been the leader in aviation trillion. children. throughout its history. Throughout the

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.032 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5413 history of aviation, since Kitty Hawk, trade agreements have been pending. It a balanced budget amendment, you tell the United States has led the world in is time to take them from pending to us what you think. Again, what a great aviation, in invention, development, being passed. We need the administra- way to get everybody involved, the way and innovation, and all the things that tion to bring those free trade agree- we should get everybody involved in have gone into the development of ments to the Senate and to the House making sure we live within our means aviation. Again, throughout its his- and we will pass them. We have worked not only today but tomorrow and tory, the United States has been the across the aisle in a bipartisan way to throughout future generations. leader. One of the key areas for growth make sure that whatever issues needed At the same time, we need to pass in aviation right now is UAS, un- to be dealt with to bring them to the other tools that can help us get control manned aerial systems or unmanned Congress—whether it is trade adjust- of our spending. For example, the Re- aircraft. They call them remotely pi- ment authority or whatever, we have duce Unnecessary Spending Act. This loted aircraft. Our military uses them worked together in a bipartisan way to is a bipartisan act that I think was to tremendous benefit in Iraq, Afghani- say, look, we have addressed the issues. originally sponsored by Senator TOM stan, and around the world. Now the administration needs to bring CARPER, a former Governor, a Demo- Even though our military flies UAS the free trade agreements to the Sen- crat from Delaware, and Senator JOHN all over the globe, we can’t fly them ate floor. We will pass them. MCCAIN. I am proud to be a cosponsor. here in the United States together with With just one of those free trade One of the key provisions is to give the manned aircraft. Yet if we are going to agreements—for example, if we take President a line-item veto. Reaching continue to lead the world in aviation the South Korea free trade agree- across the aisle, we are giving our innovation, we have to find a way to ment—we are talking about more than President a tool—a line-item veto—to fly both manned and unmanned air- $10 billion in trade every year for our make sure we cut out waste, fraud, and craft together in our airspace in the U.S. companies. abuse, and that we control our spend- United States. These free trade agreements reduce ing. As a Governor, the most effective Others and I have been talking to the tariffs on the order of 85 percent. We tool I had was the line-item veto. We FAA and working with the FAA, say- are talking more than a quarter of a need to make sure our President has it ing that you have to promulgate rules, million jobs that will be created if we as well. set the rules of the road—or, in this pass these agreements. For every 4-per- I think we also need to look at a bi- case, the rules of the air—so we can fly cent increase in trade, we are talking ennial budget, so that we pass a budget both manned and unmanned aircraft about 1 million American jobs that we on a two-year cycle—make sure we get together in the U.S. airspace. The FAA can create. Again, it is about creating it passed and the next year we can has been working on this for I don’t the environment that empowers invest- come back and make the adjustments know how long but a long period of ment, empowers our entrepreneurs in we have to make; but at the same time time. As of yet, they have not come this country, and empowers businesses we have time for oversight and making out with those rules so we can fly both large and small to invest and get our sure spending is going in accordance manned and unmanned aircraft in our economy going. with the directive of the Congress, and airspace. But we need to, because if we At the same time we get this econ- whether it is waste, fraud, abuse, or du- don’t, other countries will, and they omy growing, we have to start living plication, that we cut it out. Again, will move ahead of us—maybe not in within our means. Right now, as I indi- this is absolutely what the American military aviation, where we are flying cated, we have a $1.5 trillion deficit and people want us to do. unmanned aircraft all over the world, a debt that is closing in on $14.5 tril- The third area I will touch on for a but how about in commercial and gen- lion. So at the same time we get the minute—and I will go to the next eral aviation and all the other applica- economy growing, which will grow our chart—is building the right kind of en- tions it will have for unmanned air- revenues—not higher taxes, but grow ergy plan, a comprehensive energy pol- craft. revenues from a growing economy, and icy that will help this country develop The FAA bill, which we are now with tax reform that empowers that all of its energy resources. We did it in working to complete—a version was economic growth, at the same time, we North Dakota. I know we can do it at passed in the House and a version was have to get control of our spending and the Federal level. passed in the Senate, and we are trying live within our means. If you think about it, energy develop- to reconcile the two versions. Again, Along with some fellow Senators, we ment in this country is an incredible we need to do this in a bipartisan way. have sponsored a number of pieces of opportunity. It is an opportunity to I have included language that author- legislation that I believe we can pass in produce more energy more cost effec- izes—in fact requires—that the FAA a bipartisan way to make sure we get tively, with better environmental stew- set up airspace in the United States so spending under control. The first is a ardship that will enable all of our in- that manned and unmanned aircraft balanced budget amendment. I come dustries to compete in a global high- can be flown concurrently. Again, it is from a State where I was Governor for tech economy. In addition, what a about making sure that we not only 10 years. We have a balanced budget great opportunity it is to create high- maintain our lead in aviation but cre- amendment. Every year, we are re- paying jobs. Again, I go back to what I ate those exciting, good-paying jobs of quired by our Constitution to balance said before. For our energy companies the future. If the agency isn’t going to the budget. States have a balanced looking to invest hundreds of millions take that step, we as the Congress have budget requirement, and businesses and billions of dollars, they need to to make sure we take that step and and families and communities all have know the rules of the road. It comes move the aviation industry forward. to live within their means. Our Federal back to creating a comprehensive en- Another example is how we have to Government has to live within its ergy policy that sets up those rules of create the environment, the forum that means. the road so they know what their tax encourages that type of innovation, en- If you think about it, a balanced situation is and what the regulation trepreneurship, and investment in job budget amendment gets everybody in- and regulatory requirements are. When creation. That is our role, our responsi- volved. We not only have to pass it in they make those investments to bility, in this most important of all the Senate and in the House with a produce more energy more cost effec- issues, which is getting the economy two-thirds majority, but then it goes tively, with good environmental stew- going and getting people back to work. out to the States for ratification. What ardship, they have to know they are On the free trade agreements, we better way to get everybody through- going to be able to get a return. They have three of them pending—one with out the country directly involved in have to know they can meet the regu- South Korea, the U.S.-South Korea making sure that we control our spend- latory requirements. Those invest- Free Trade Agreement, another is the ing. Every State has to deal with a bal- ments may last 40 and 50 years, and Panama Free Trade Agreement, and anced budget amendment. So it is all of they know they are going to have to be the other is with Colombia. Those us working together as Americans, and able to recoup those investments. trade agreements have been negotiated it is the Congress going to the people of This first chart gives an example of for some time. For three years those this great country and saying: Here is some of the energy development in our

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.033 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5414 CONGRESSIONAL RECORD — SENATE September 8, 2011 State. Out West, there is oil and gas. to be done in a bipartisan way to get it and House western caucuses have pro- North Dakota is now the fourth largest through this Congress and signed by posed a wide range of proposals to in- oil-producing State in the country. We the President. But it is that kind of vi- crease the number of red, white, and have passed Oklahoma and Louisiana, sion we need for our country. blue jobs all across the country. and people don’t realize it. Every State I yield the floor. Encouraging the development of all- has some kind of energy. If you look at The PRESIDING OFFICER. The Sen- of-the-above energy resources will cre- this map, we have oil, gas, coal, and ator from Montana is recognized. ate thousands of jobs in the West and wind. We are in the top 10 wind pro- Mr. BARRASSO. Mr. President, U.S. make our country less dependent on ducers. We have biofuels, biomass, job creation in this country, as you foreign energy. This administration solar—we have all of them. Different know, has come to a halt. The Labor has consistently shut down offshore en- States have different strengths. A lot Department reported last Friday that ergy exploration. It has arbitrarily of States have oil, gas, coal, or cer- zero jobs were created in August. The canceled existing leases, and it con- tainly wind, or they can develop the economic recovery that was hoped for tinues to try to impose additional hur- biofuels. failed to materialize, and unemploy- dles to onshore production, such as re- It comes down to creating that envi- ment remains at 9.1 percent. dundant environmental reviews, bur- ronment that stimulates private in- Hope is not enough. Our economy is densome permitting review require- vestment so companies will come in stagnant. The President’s latest pivot ments, and delays in processing of ap- and do exactly what I am talking to jobs is anchored on blaming the pre- plications. about—at the Federal level, as well as vious administration, which is now Our bills—the ones in this report— at the State level. nearly 3 years past. Yet, despite re- will streamline the permitting process This next chart shows what is actu- peated assurances of improvement, and break down the barriers imposed ally happening at the Federal level. President Obama’s own economic poli- by President Obama. This will make it This chart is the cost of major new reg- cies have failed. The President’s stim- cheaper and easier—cheaper and easi- ulations. What it shows over the last ulus plan failed to produce the 3.5 mil- er—for the private sector to create three decades is the cost of regulation lion jobs he promised. His ‘‘green jobs’’ jobs. by year, over the last 30 years. When initiative gave us more red ink but Westerners recognize we cannot pick the cost of regulation is high, if you go never came close to the 5 million new and choose which forms of energy to back and check, you will see our econ- jobs he predicted it would. All the support. When it comes to energy, we omy wasn’t doing very well. When the while the Federal bureaucracy he con- need it all, and we need it now. That is cost of regulation was low, you will see trols churns out expansive and expen- why we need a bill that will let energy that it was doing much better. Look at sive new regulations that amount to an producers tap existing resources of the cost of regulation today. It was assault on private sector job creation. American oil and natural gas. Our plan $26.5 billion in 2010, the cost of meeting The facts are inescapable. Since has a bill that will do that. It is called the regulatory requirements. That is President Obama took office, America the Domestic Jobs, Domestic Energy, what I am talking about. That is what has lost approximately 2.3 million jobs. and Deficit Reduction Act. It has been is impeding job growth and economic We are in an economic crisis—a crisis introduced by both Representative ROB growth and business investment. We that extends to America’s confidence BISHOP of Utah and Senator DAVID VIT- have to address that. We have to roll in the President to do anything that TER of Louisiana. back the regulatory burdens our com- will change the current course. What This bill would force the Department panies and entrepreneurs face today. the American people want is a plan, a of the Interior to stop blocking off- This last chart gives one example of plan that will yield results. They want shore energy exploration. That depart- some of the new regulations EPA is leadership, and they have rejected the ment’s stall tactics have gone so far putting out that somebody who wants President’s insistence that the only that even President Bill Clinton has to develop energy has to meet. If you way forward is through more spending. called them ridiculous. The Domestic are an energy company or a young per- Today, western Members of the Sen- Jobs, Domestic Energy, and Deficit Re- son with a good idea to develop a new ate and House are calling on the Presi- duction Act would force the Obama ad- type of energy, or existing type of en- dent to accept a new way—a progrowth ministration to quit stalling. ergy with a new technology, can you plan to create jobs in the West that The barrage of new regulations com- meet all of these requirements? Can will lead to broader economic recovery ing out of Washington continues to be you even begin to understand them? Do all across the country. The western a big wet blanket—a big wet blanket— you have a big enough legal team and caucus Jobs Frontier report was pro- thrown over the job creators in our scientific team, or a deep enough wal- duced by Members of the Senate and country. In July of 2011, this adminis- let to try to figure that all out before congressional western caucuses. It con- tration issued 229 rules, and it finalized you put your money or your share- tains legislative proposals already in- 379 additional rules that are going to holders’ money at risk? That is what is troduced in both Houses of Congress, cost our job creators over $9.5 billion. impeding economic growth in our coun- and these are proposals that create That is in July alone. try, and we have to deal with it. Con- jobs now. Our plan includes a bill I have intro- gress has to deal with it. The proposals we support speak duced, called the Employment Impact Again, this is not rocket science, and largely to the economic challenges Act. This bill forces Washington regu- it is not about spending more Federal faced by Western States. They are also lators to look before they leap when it dollars. We have to create an environ- aimed at ruinous regulations and reli- comes to regulations that could hurt ment that will encourage, stimulate, ance on foreign energy and lawsuit American jobs. Under the bill I have in- and empower private investment. It is abuse that continues to stifle our en- troduced, every regulatory agency that private investment throughout tire economy. These bills are ready to would be required to prepare a jobs im- this land that will get our economy pass. They are ready to create jobs pact statement. They would have to do going and get people back to work. We today. it with every new rule they propose. can do it. It has to be a long-term Any serious job creation proposal has That statement would include a de- strategy. It can’t be a few stopgap to start with serious steps to increase tailed assessment of the jobs that measures that we put into place now affordable American energy. For dec- would be lost or gained or sent over- for the next 90 days or for 1 year at a ades, westerners have worked in high- seas by any given rule. It would con- time. It has to be on a long-term sus- paying energy jobs, and these jobs have sider whether new rules would have a tained basis. I believe that is what the good benefits. Since taking office, the bad impact on our job market in gen- people want to hear this evening. I Obama administration has consistently eral. think they want to hear that kind of pushed extreme policies and heavy- The administration has also at- commitment to a long-term strategy, a handed regulations that make it harder tempted to drastically increase wilder- progrowth, pro-jobs economic strategy to develop American energy. Very sim- ness areas, to expand Washington’s ju- that will get this economy going now, ply: Fewer energy projects mean fewer risdiction on private waters, and to tomorrow, and for the long term. It has American jobs. Members of the Senate misuse the Endangered Species Act.

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.033 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5415 Western lawmakers are proposing to Recent jobless numbers confirm the Sitting in our commander’s briefs for reassert congressional authority to en- current approach from Washington has 2 weeks and talking to our head- sure a proper balance between job cre- failed. If the President is serious about quarters’ leaders and spending a few ation and conservation. Our bills in incorporating the ideas of every Amer- days in the field, it became clear to me this report will increase transparency ican in every part of the country, then if we were working in Afghanistan and stop any administration from he needs to look beyond Washington. alone we would have had a much better issuing regulations without consid- I thank every Member of the Senate chance to turn that country around ering the local economic impact. and congressional western caucuses for more quickly, restoring it to its status Throughout our Nation’s history, their work and their expertise on this as an agricultural economy with a American farmers and ranchers have report. I look forward to turning these loose government and a high degree of provided an affordable, abundant, and ideas into policies and in that way put- autonomy given to each tribe or re- safe domestic supply of food and en- ting all of America back to work. gion. But we are not alone. ergy. In recent years, America’s agri- Mr. President, I yield the floor. While our military reduced al-Qaida cultural and forestry industries have The PRESIDING OFFICER. The Sen- in Afghanistan to a shadow of its been increasingly threatened by the ator from Illinois. former self, a new force is emerging. On surge of regulations coming from AFGHANISTAN AND AID TO PAKISTAN the 10th anniversary of 9/11, al-Qaida, I Washington—especially those from the Mr. KIRK. Mr. President, I want to must report, is still armed and dan- Environmental Protection Agency. Our take some time today to talk about my gerous, but it is far less numerous or plan is going to push back. We will views on Afghanistan and why we capable than it once was. But al-Qaida strengthen these industries and their should rethink aid to Pakistan. is not the most potent force that is ability to meet the world’s growing I just completed my third 2-week re- arrayed against us. food and energy needs. serve assignment in Afghanistan. While The new face of terror is called the Westerners also recognize the mining many Members of Congress get a first- Haqqani network. Built around its sector is vital to our economic recov- hand look at the situation on fact- founder Jalaluddin Haqqani and his son ery. We know manufacturing jobs can- finding missions, my time provided me Siraj, it has become the most dan- not be created without the raw mate- a more indepth view, with a focus on gerous, lethal, and cancerous force in rials needed to produce goods. Since the counternarcotics objectives of Afghanistan. the Obama administration will not NATO’s ISAF mission. One other thing. As much as Paki- Now, first, the good news. The work break down barriers to American min- stani officials claim otherwise, the of our soldiers, marines, sailors and erals, our Nation is growing increas- Haqqanis are backed and protected by airmen is nothing short of amazing. ingly dependent on foreign minerals— Pakistan’s own intelligence service. Serving in one of the poorest, roughest, countries such as China and Russia. Statements by Pakistani Government and most remote parts of the globe, This inaction is unacceptable and it is officials to the contrary are direct lies. they have crushed al-Qaida’s training inexcusable. The Haqqani network kills Americans, bases, they have driven the Taliban Our plan includes Senator MUR- it attacks the elected Government of from government, they have fostered a KOWSKI’s bill, the Critical Minerals Pol- Afghanistan, and remains protected in new elected government, and welded 47 icy Act, which will ensure long-term its Pakistani headquarters of Miriam allies into a force for human rights, de- viability of American mineral produc- Shah. Without that Pakistani safe velopment, and education—especially tion. Her bill requires the U.S. Geologi- haven, the Haqqani network would suf- for girls. cal Survey to establish a list of min- Now, 42 percent of Afghans live on fer the same fate as al-Qaida. Afghan erals critical to the U.S. economy and just $1 a day. Only one in four can read. and U.S. special operations teams take then provide a comprehensive set of Malnutrition is a serious problem, and out many Taliban and al-Qaida com- policies to address each economic sec- infant mortality is the third highest of manders, and these operators operate tor that relies upon those critical min- any country. According to the United each night also against numerous erals. It also creates a high-level inter- Nations, nearly 40 percent of Afghan Haqqani leaders. But the Haqqanis are agency working group to optimize the children under 3 are moderately or se- able to spend all day planning attacks efficiency of permitting in order to fa- verely underweight, and more than 50 on Afghans and Americans and then cilitate increased exploration and pro- percent of children under 3 experience sleeping soundly in their beds in Paki- duction of domestic critical minerals. stunted growth. Afghanistan has more stan. These are just some of the ideas in- than twice the population of Illinois, In such an environment, with our cluded in our jobs frontier plan. As it but its electricity generation for the deficits and debt, military aid to Paki- says: ‘‘Breaking Down Washington’s entire year is less than 2 percent of the stan seems naive at best and counter- Barriers to America’s Red, White and electricity generated in Illinois just for productive at worst. I am seriously Blue Jobs.’’ We eliminate back-door the month of May. thinking we should reconsider assist- cap-and-tax regulations. Finally, we The nearly 30 million people of Af- ance to the Pakistani military. will take on excessive lawsuits against ghanistan are victimized by a number Recently, our President chose to Federal agencies that have increased of terrorist groups beyond just the withdraw 33,000 American troops from dramatically and destroyed jobs in the Taliban, such as the HIG, the ETIM, the Afghan battle. General Petraeus West. and a new threat called the Haqqani and Admiral Mullen did not choose this Every single one of the bills in the network, which I will go into detail option. Nevertheless, I think our new Republican jobs plan has been written about. But the Afghans are mostly vic- commander, General Allen, can with- and introduced in one or both Houses timized by their neighbors, the Paki- draw the first 10,000 American troops of Congress. This is a plan that can be stanis. by Christmas without suffering a mili- implemented now. This is a plan that I served as a reservist in Afghanistan tary reversal in Afghanistan. Afghani- will work to create jobs. This is a plan for the first time in 2008, and I believed stan’s Army and police are growing in that will reduce the cost of energy and then that Pakistan was complicated; size—now numbering over 300,000—and restart the economy. that we have many issues there and capability. Despite recent reports of There is a lot that needs to be done that we should advance our own inter- desertions, Afghan security forces will to fix our ailing economy. These are ests diplomatically. I no longer agree soon reach a level where some of our some ideas—western ideas—that come with that. troops may safely leave the country. from the lawmakers that know best Pakistan has now become the main As we withdraw, we should consider how our rural communities are suf- threat to Afghanistan. Pakistan’s in- enablements, such as a pay raise for fering and how we can get folks back to telligence service is the biggest danger Afghan troops, to improve their reten- work. Many of these proposals come to the Afghan Government. Pakistan tion and morale. from the States. They have the support also poses a tremendous threat to the I spoke with General Allen about a of our western Governors and legisla- lives of American troops. Let me be commander’s assessment that should tors. These are ideas not born in Wash- clear: Many Americans died in Afghan- be delivered at the end of the year. ington. istan because of Pakistan’s ISI. After withdrawing 10,000 troops, I hope

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.035 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5416 CONGRESSIONAL RECORD — SENATE September 8, 2011 he will clearly define when the next help. Without regular U.S. combat per year, not $115 million. It was $115 23,000 can come out. troops, we risk a Taliban-Haqqani-ISI million over 10 years. So I wish to In the United States, politically alliance winning unless we do help that stand to put that in the RECORD that I there is little difference between with- Afghan military. was in error and Senator WHITEHOUSE drawing at the end of the year and On the 10th anniversary of 9/11, we as a cordial colleague questioned me on withdrawing at the end of the fiscal should all agree that Afghanistan it and I thank him for his account- year, but militarily there is a world of should never become a major threat to ability. difference. The fighting season in Af- American families again. Should Paki- We have before the Senate now a pat- ghanistan runs through October. If stan not change its ways, we can do ent bill. There is no question there is a General Allen is ordered to withdraw one other thing: an American tilt to- lot of work we need to do on patents. I his troops by September 30, then many ward India, to encourage the world’s know the President pro tempore sits on of his forces will disappear during the largest democracy to bankroll an Af- the committee that I do and we have Taliban’s key offensive months. But if ghan Government that fights terror spent a lot of time on this. But I am the troops leave in November-Decem- and the ISI. Given the outright lying very concerned, I have to say, about ber, we will guarantee another bad and duplicity of Pakistan, it appears a what we are hearing in the Senate military year for the Taliban and the tilt toward India will allow us to re- about why we wouldn’t do the right Haqqanis and an even stronger Afghan duce our forces in Afghanistan, know- thing that everybody agrees we should Army in the long term. ing India will help bankroll an Afghan be doing because somebody doesn’t I hope the President sets an end-of- Government. This would allow us to re- want us to do that in the House, and I year deadline rather than an end-of-fis- duce our troops while also reducing the think it is the worst answer we could cal-year deadline. It is right to do mili- possibility of Afghanistan once again ever give the American people. tarily and politically. If he does this, becoming a terrorist safe haven. When we have a 12-percent approval he reduces the chance of a radical Is- Pakistanis would object to this pro- rating, and the Republicans have worse lamic extremist victory on the Afghan Indian outcome, but they will only than that, why would we tell the Amer- battlefield in 2012. have their own ISI to blame. Sep- ican people we are not going to do the While in Afghanistan, I worked to tember 11 teaches us that neither the right thing for the right reason at the help update and rewrite ISAF’s coun- United States nor India can tolerate a right time because somebody in the ternarcotics plan. Afghanistan is the new formal Afghan terror state. It is House doesn’t want us to and that we source of over 80 percent of the world’s too bad Pakistan has chosen to back are going to say we are not going to heroin and opium. The drug economy the losing side—the terrorists—against put these corrections into a patent bill fuels the insurgency and corruption of the Afghan people and the two largest that are obviously important and we the Afghan Government itself. From democracies on Earth. are going to say it is going to kill the 2001–09, Secretary Rumsfeld and then- Finally, a word about our troops. bill when, in fact, it is not going to kill Ambassador Holbrooke blocked ISAF Each night they combat the most dan- the bill? But that is what we use as a from doing much about narcotics. This gerous narco-insurgents on Earth, and rationalization. So let me describe for left a huge funding source for the in- many 19- and 20-year-old Americans a minute what has gone on over the surgency untouched. volunteer to serve over 7,000 miles from years and what has not happened. ISAF was able to change direction home. Their generation is named after The first point I would make is there slightly in 2009 and 2010 by supporting September 11, but these Americans in has not been one oversight hearing of interdiction and eradication and alter- uniform not only carry their genera- the Patent Office by the Appropria- native livelihoods for Afghan farmers. tion’s label, they are personally em- tions Committee in either the House or While commendable, these programs ployed in risking their lives to ensure the Senate for 10 years. So they didn’t work and the size of the Afghan that all Americans will never again haven’t even looked at it. Yet the ob- poppy crop is likely to go up. witness another September 11. jection to, and what we are seeing from The plan I worked on advocates a They are America’s best hope, and I an appropriations objection is—and shift in ISAF to apply its military hope to God when I am older some of even our chairman of our Committee strength of intelligence, helicopters, them run for President. From my own on the Judiciary, who is an appropri- and special operations to support Af- nursing home, I know the country ator, supports this amendment but ghan decisions to arrest the top drug would be in good hands if one of these isn’t going to vote for it because some- lords of Afghanistan, starting with the young Americans were to guide our Na- body in the House is going to object to ones who heavily financially back the tion’s destiny. it. insurgency. We joined in 2005 to arrest I am lucky to know many of their But the point is, we have money that bin Laden’s banker Haji Bashir names. MAJ Fred Tanner, U.S. Army; people pay every day. From univer- Noorzai, and we should do it again. LT Doug McCobb, Air Force; MG Mick sities to businesses to individual small I strongly back the Afghan Counter- Nicholson, Army; and our allies, Wg inventors, they pay significant dollars narcotics Ministry idea to announce a Cdr Howard Marsh, Royal Air Force; into the Patent Office. Do you know top 10 drug lord list to emulate the GEN Renee Martin, French Army; what has happened with that money early success of J. Edgar Hoover when RADM Tony Johnstone-Brute, Royal this year? Eighty-five million dollars he established the reputation of the Navy; and COL Robin Vickers, British that was paid for by American tax- FBI. In our remaining 2 years in Af- Army. I honor them and their younger payers for a patent examination and ghanistan, we can do a lot to cripple comrades, wishing all the military per- first looks didn’t go to the Patent Of- the insurgency and help the 2014 elec- sonnel of ISAF’s 47 nations a very good fice. Yet we have over 1 million patents tions by removing a number of key bad day as they awake in Afghanistan to- in process at the Patent Office, and actors from the battlefield. morrow morning for another hard day’s over 700,000 of those haven’t ever had What about the future? The Presi- work on one of the toughest battle- their first look. dent says our formal current mission fields in the world. So when we talk about our economy will end in 2014. Much of his vision will I yield back. and we talk about the fact that we be approved at the Chicago NATO sum- The PRESIDING OFFICER. The Sen- want to do what enhances intellectual mit in May of 2012. By 2014, I believe ator from Oklahoma. property in our country—which is one Afghans will be able to do nearly all of Mr. COBURN. Mr. President, I wish of our greatest assets—and then we the conventional fighting, with some to talk about an amendment, but also don’t allow the money that people ac- U.S. special operations support remain- I had one of my colleagues who was sit- tually pay for that process to go for ing. ting in your position as President pro that process and we have backlogged But remember, while the Afghan tempore notice an error I made on July for years now patent applications, we Army is likely to win, its budget for 27. Senator WHITEHOUSE questioned my have done two things. One is we have this year is $11 billion. The Afghan numbers and, in fact, he was right. I limited the intellectual property we Government collected only $1 billion in said $115 million in regard to the sav- can capture. No. 2 is we have allowed tax revenue in 2010. We will have to ings on limousines. It was $11.5 million people to take those same patents,

VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.036 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5417 when we have limited ability, espe- clearly, since the work for which these fees agency is not planning to continue growing cially some of our smaller organiza- were paid remains pending at USPTO, at indefinitely. An important part of our multi- tions, and patent them elsewhere. So some point in the future we will have to col- year plan is an eventual moderation of our the lack of a timely approach on that lect more money in order to actually per- workforce requirements, once we have form the already-paid-for services. If USPTO achieved a sustainable steady state. is lacking. had received the authority to expend these At the same time that USPTO is working The process is broken. Since 1992, al- funds, we would have paid for activities such to achieve these goals, we will also be work- most $1 billion has been taken out of as overtime to accelerate agency efforts to ing to restructure our fees to ensure that the the Patent Office. So we wonder, why reduce the backlog of nearly 700,000 patent agency is recovering adequate costs to sus- in the world is the Patent Office be- applications, as well as activities to improve tain the organization. Once our fees have hind? our decaying IT systems, which are a con- been set, we will continually monitor our The Patent Office is behind because stant drag on efficiency. As history has dem- collections over the next several years to en- we will not allow them to have the onstrated, withholding user fees from sure that our operating reserve does not USPTO is a recipe for failure. Effecting real funds the American taxpayers who are grow to unacceptably high levels at the ex- reforms at the USPTO requires first and pense of USPTO’s stakeholders. trying to get ideas and innovations, foremost financial sustainability. Ensuring Thank you again for your support and your copyrights, trademarks, and patents that the agency has consistent access to ade- superb leadership on this important issue. done—we will not allow the Patent Of- quate funding is a key component of achiev- With the continued commitment of the fice to have the money. ing this. House and Senate Committees on Appropria- The amendment I am going to be of- Further, the unpredictability of the annual tions to ensuring the USPTO’s ongoing abil- fering—and I have a modification on it appropriations cycle severely hinders ity to utilize its fee collections, we can put USPTO’s ability to engage in the kind of the agency on a path to financial sustain- that is trying to be cleared on the multi-year, business-like planning that is other side, and I will not actually call ability, and enable it to deliver the services needed to effectively manage a demand-driv- paid for and deserved by American up the amendment at this time until I en, production-based organization. The only innovators. hear whether that has been accepted. way we will be able to effectively implement Sincerely, The amendment I have says we will no our multi-year strategic plan, and achieve DAVID J. KAPPOS, longer divert the money that American our goals of reducing the patent backlog and Under Secretary and Director. businesses, American inventors, Amer- pendency to acceptable levels, is through an Mr. COBURN. I must tell you that we ican universities pay to the Patent Of- ongoing commitment to ensuring the USPTO has full access to its fee collections—not just are so fortunate that we have Director fice to be spent somewhere else; that it in fiscal year 2012, but for each and every Kappos. We have a true expert in pat- has to be spent on clearing their pat- year beyond FY 2012. Only this assurance ents, with great knowledge, who has ents. will enable the agency to move forward with made tremendous strides in making I ask unanimous consent to have the confidence that we are basing critical great changes at our Patent Office. But printed in the RECORD—and I will sub- multi-year decisions about staffing levels, IT he requires a steady stream of money, mit a copy at this time—a letter I re- investment, production, and overtime on an and he requires the ability to manage ceived August 1 from the head of the accurate and reliable funding scenario. Along these lines, if America is to main- the organization in a way where he can Patent Office. actually accomplish what we have There being no objection, the mate- tain its position as the global leader in inno- vation, it is essential that American busi- asked him to do. rial was ordered to be printed in the nesses and inventors not suffer the adverse Frankly, I have spent a lot of time RECORD, as follows: effects of drawn-out continuing resolutions working with the Patent Office—not UNITED STATES (CR), which have become common in recent with everybody else who wants an ad- PATENT AND TRADEMARK OFFICE, years. The constant stops and starts associ- vantage in the patent system but with Alexandria, VA, Aug. 1, 2011. ated with the CR cycle can have disastrous the Patent Office—and I am convinced Hon. TOM COBURN, consequences, especially for a fee-based we have great leadership there. U.S. Senate, agency with a growing workload, as is the In his letter, he talks about their in- Washington, DC. case for USPTO. The challenges presented by DEAR SENATOR COBURN: Per your request, I the pending patent reform legislation will be ability to update their IT because the am writing today to follow up on our discus- particularly difficult to undertake if the money is not there because we will not sion last week regarding United States Pat- agency is not allowed to grow along a steady let him have the money—their money, ent and Trademark Office (USPTO) funding. path to address our increasing requirements. the money from the American tax- As you know, the House-passed version of As such, we must be assured that the USPTO payers. the America Invents Act (H.R. 1249) replaces will have full access to its fees throughout Let me give a corollary. If, in fact, a key funding provision that would have cre- the year—not just after a full year appro- you drive your car into the gas station, ated the USPTO Public Enterprise Fund—ef- priations act is enacted. Therefore, a com- fectively sheltering the USPTO from the un- you give them $100 for 25 or 28 gallons mitment to include language in future con- of gas, and they only give you 12 gal- certainties of the appropriations process and tinuing resolutions that will address the ensuring the agency’s ability to access and USPTO’s unique resource needs is para- lons of gas and they say: Sorry, the Ap- spend all of the fees it collects—with a provi- mount. propriations Committee said you sion creating the Patent and Trademark Re- As outlined in our Strategic Plan and in couldn’t have all the gas for the money serve Fund. This provision keeps the USPTO our FY 2012 budget submission, USPTO has a you paid, you would be outraged. If you in the current appropriations process, but re- multi-year plan in place to reduce patent go to the movie, you pay the fee to go quires that all fees collected in excess of the pendency to 10 months first action and 20 to the movie and you buy a ticket, you annual appropriated amount be deposited months final action pendency, and to reduce walk in, and halfway through the into the Reserve Fund, where they will be the patent application backlog to 350,000. available to the extent provided for in appro- During the next three to four years, we will movie they stop the projection and say: priations acts. In a June 22, 2011 letter to continue and accelerate implementation of a Sorry, we are not going to give you the Speaker Boehner, House Appropriations series of initiatives to streamline the exam- second half of the movie even though Committee Chairman Rogers committed to ination process, including efforts to improve you paid for it—inventors in this coun- ensuring that the Committee on Appropria- examination efficiency and provide a new, try have paid the fees to have their tions carry language providing that all fees state-of-the-art end-to-end IT system, which patents examined and evaluated and collected in excess of the annual appro- will support each examiner’s ability to proc- reviewed. Yet we, because of the power priated amount would be available until ex- ess applications efficiently and effectively. pended only to the USPTO for services in While efficiency gains are essential, we struggle, have decided we are not going support of fee-paying patent and trademark will not reach our goals without also in- to let that money go to the Patent Of- applicants. I was pleased to see that the fis- creasing the capacity of our examination fice. The amendment I have says we cal year 2012 appropriations bill reported by core. As outlined in the FY 2012 budget, we are going to allow that to happen. If the Committee did in fact carry this lan- plan to hire an additional 1,000 patent exam- money is paid and it goes into a proper guage. iners in FY 2012, with another 1,000 examiner fund that is allocatable only to the I would like to reiterate how crucial it is hires planned for FY 2013. This added capac- Patent Office, it cannot be spent any- for the USPTO to have access to all of the ity, combined with full overtime, will allow where else and has to go to the Patent fees it collects. This year alone, we antici- us to bring the backlog and pendency down pate that the agency will collect approxi- to an acceptable level. Office. mately $80 million in fees paid for USPTO Let me also be clear that while these en- Some of the objections, especially services that will not be available for ex- hancements are necessary to allow the from the House Appropriations Com- penditure in performing those services. Quite USPTO to tackle the current backlog, the mittee, are that there is no oversight.

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.036 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5418 CONGRESSIONAL RECORD — SENATE September 8, 2011 The reason there is no oversight is be- CONGRESSIONAL RECORD, she asked would not have access to the fees, how- cause they have not done any oversight Chairman ROGERS if 100 percent of the ever, should it collect more than its ap- and neither have we, so you cannot user fees would go to the PTO, and Mr. propriation. claim that as an excuse as to why you ROGERS stated that the fees would not In the Dodd-Frank bill, Congress are afraid. This patent bill will give an be siphoned off for any other agency or again changed the treatment of the authorization for 7 years for the fees. purpose and remain in the account for fees and required some of the fees to go We can change that if we want, but the future years. But according to the to the General Treasury and others to fact is that we are never going to know PTO, in fiscal year 2000, $121 million the reserve fund. As a result, lots of if we need to change it if we never do was, in fact, diverted. So when we have complaints with the SEC, and they oversight, which we have not done. No- the chairman of the committee say we still do not have access to their funds. body has done oversight on patents. I should not doubt the word of the Ap- Thus, like the PTO, if Congress chooses am talking aggressive oversight: What propriations Committee, yet we have not to provide all the funds in the ini- did you start? What was your end? How in the RECORD the exact opposite of tial appropriation, they will not have much did you spend? Where did you what the Appropriations Committee them. spend the money? What is your em- said was going to happen, we should be In the 2012 budget justification from ployee turnover? What is your em- concerned and we should fix it to where the Securities and Exchange Commis- ployee productivity? What should we the money for patent examination goes sion, they noted it had significant chal- expect? for patent examination. So we have a lenges maintaining a staffing level suf- None of that has been asked. I believe clear record of a statement that says it ficient to carry out its core mission. it is probably pretty good based on the was not going to happen, and, in fact, From 2005 to 2077, SEC had frozen or re- fact that I have a lot of confidence in $121 million was diverted from the Pat- duced budgets that forced reduction of the management at the Patent Office, ent Office. 10 percent of their staff and 50 percent especially what I have seen in terms of Finally, from 1992 to 2007, $750 mil- of technology investment. What hap- performance for the last couple of lion more in patent and trademark fees pened in 2007 in this country? What years versus before that, but the fact is was collected than was allowed to be were the problems? So the diversion of that oversight has not been done. spent by the Patent and Trademark Of- the money from the SEC actually con- It is not just the Patent Office. It fice. Had they had that money, we tributed to the problems we had in this hasn’t been done anywhere. Very little would have a backlog of about 100,000 country. So it does not work. Finally, one that is my favorite and oversight has been done by the Senate, patents right now, not 750,000. We that I have fought against every year and it is one of the biggest legitimate would have intellectual property as a that I have been here is the Crime Vic- criticisms that can be made of us as a greater value in our country, with tims Fund, and that is a fund where body, that we are lazy in our oversight greater advantage over our trading people who are criminals actually have function. Of the $3.7 trillion that is partners because that money would to pay into a fund to do restitution for going to be spent, we are going to have have been effectively used. criminal victims, and we have stolen oversight of about $100 billion of the On July 12, former CBO Director billions of dollars from that fund. They total. Douglas Holtz-Eakin wrote to Senators are not taxes, they are actually res- The amendment does a couple of REID and MCCONNELL noting: things. Let me kind of detail that for a titution moneys, but the Congress has The establishment of the Patent and stolen it and spent it on other areas. moment. One of the things is that by Trademark reserve fund in H.R. 1249 would returning the money to the Patent Of- be ineffective in stopping the diversion of The morality of that I don’t think fice, the Director thinks he can actu- the fees from the U.S. Patent Office. leads anybody to question that that is ally cut the backlog in half. In other In other words, what is in this bill wrong. words, we have over 700,000 patents now will not stop the diversion of the AMENDMENT NO. 599, AS MODIFIED that have never been looked at sitting fees. Now, if I may, let me call up amend- at the Patent Office now, and he be- Just so people think I am not just ment 599. I ask that the pending lieves that in a very short period of picking on one area, this is a bad habit amendment be set aside and ask that time they could cut that to 350,000. of Congress. It is not just in the Patent the amendment be modified with the From 1992 through 2011, $900 million and Trademark Office that we tell peo- changes at the desk. The PRESIDING OFFICER (Mr. has been taken from the PTO. In 2004 ple to pay a fee to get something done SANDERS). Is there objection? Congress diverted $100 million, in 2007 and we steal the money and use it Mr. LEAHY. Mr. President, I suggest it diverted $12 million, last year it di- somewhere else. For example, in the the absence of a quorum. verted $53 million, and it is $80 million Nuclear Waste Fund at the Department The PRESIDING OFFICER. The Sen- to $85 million that is going to be di- of Energy, utility payments by indi- ator from Oklahoma has the floor. verted this year. In 4 years out of the vidual consumers pay for a nuclear Is there objection? last 10, Congress gave the Patent Office waste fee. That money has been spent Mr. LEAHY. Reserving the right to all the money because it was so slow, on tons of other things through the object, the Senator from Oklahoma so lethargic in terms of meeting the years rather than on the collection and knows that the basic thing he is trying needs of inventors. The only thing we management of nuclear waste. To the to do is something I had supported. As have in the current bill is the promise tune of $25 billion has been spent on he knows, I put it in the managers’ of a Speaker and the promise of a other things. package. He also is aware that my be- chairman that they will do that. There The Securities and Exchange Com- lief is—obviously we disagree—my be- is nothing in law that forces them to mission is a fee-based agency. Since lief is that the acceptance of his do it. There is nothing that will make the SEC was established, it has col- amendment will effectively kill the sure the money is there. No matter lected money via user fees, charged for bill. Even today the leadership in the how good we fix the patent system in various transactions in order to cover House told me they would not accept this country, if there is not the money the cost of its regulation. The primary that bill with it. I say this only be- to implement it, we will not have fees are for sales of stock, registration cause tactically it would be to my ad- solved the problems. of a new stock, mergers, tender offers. vantage to object to the amendment. In June of 2000, the House debated It also collects fees for penalty fines, But the distinguished Senator is one of the PTO funding, and an interesting for bad behavior. They go into the the hardest working members of the exchange took place between Rep- Treasury’s general fund, and amounts Judiciary Committee. He is always resentative ROYBAL-ALLARD and Rep- collected above the SEC budget were there when I need a quorum. Out of re- resentative ROGERS, who was a car- diverted to other government pro- spect for him, I will not object. dinal at the time. Representative grams. Mr. COBURN. I thank the Senator for ALLARD discussed the problem of PTO In 2002, Congress changed the treat- this. This is a minor technical correc- fee diversion and the need for user fees ment of the fees of the SEC so they tion. to pay for the work of the agency. She would only go to a special appropria- The PRESIDING OFFICER. Without asked—in the documentation of the tion account solely for the SEC. SEC objection, the clerk will report.

VerDate Mar 15 2010 01:50 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.038 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5419 The bill clerk read as follows: (3) EXPENSES.—Amounts deposited into the Let me spend a moment talking Fund under paragraph (2) shall be available, The Senator from Oklahoma [Mr. COBURN], about the chairman and his belief that without fiscal year limitation, to cover— for himself, Mr. DEMINT, Mrs. FEINSTEIN, this will not go anywhere. This is a (A) all expenses to the extent consistent Mrs. BOXER, Mr. UDALL of Colorado, Mr. critical juncture for our country, when with the limitation on the use of fees set ENZI, and Mr. BURR, proposes an amendment forth in section 42(c) of title 35, United we are going to make a decision to not (No. 599), as modified. States Code, including all administrative do what is right because somebody is The amendment is as follows: and operating expenses, determined in the threatening that they do not agree (Purpose: To amend the provision relating to discretion of the Under Secretary to be ordi- with doing what is right and that they funding the Patent and Trademark Office nary and reasonable, incurred by the Under will not receive it. In my life of 63 by establishing a United States Patent and Secretary and the Director for the continued years, that is how bullies operate, and Trademark Office Public Enterprise Fund, operation of all services, programs, activi- the way you break a bully is you chal- and for other purposes) ties, and duties of the Office relating to pat- lenge a bully. ents and trademarks, as such services, pro- The fact is, I have just recorded into On page 137, line 1, strike all through page grams, activities, and duties are described 138, line 9, and insert the following: under— the history of the House the state- SEC. 22. PATENT AND TRADEMARK OFFICE FUND- (i) title 35, United States Code; and ments by the chairman of the Appro- ING. (ii) the Trademark Act of 1946; and priations Committee in the House in (a) DEFINITIONS.—In this section, the fol- (B) all expenses incurred pursuant to any terms of his guarantee for protecting lowing definitions shall apply: obligation, representation, or other commit- the funds for PTO, which he turned (1) DIRECTOR.—The term ‘‘Director’’ means ment of the Office. around and took $121 million out of the the Director of the United States Patent and (d) ANNUAL REPORT.—Not later than 60 funds that very same year that he days after the end of each fiscal year, the Trademark Office. guaranteed on the floor that he (2) FUND.—The term ‘‘Fund’’ means the Under Secretary and the Director shall sub- public enterprise revolving fund established mit a report to Congress which shall— wouldn’t do. So what I would say is we under subsection (c). (1) summarize the operations of the Office ought not worry about idle threats. (3) OFFICE.—The term ‘‘Office’’ means the for the preceding fiscal year, including finan- What we ought to be worried about is United States Patent and Trademark Office. cial details and staff levels broken down by doing what is best and right for our (4) TRADEMARK ACT OF 1946.—The term each major activity of the Office; country. What is best and right is to ‘‘Trademark Act of 1946’’ means an Act enti- (2) detail the operating plan of the Office, give the money to the Patent Office tled ‘‘Act to provide for the registration and including specific expense and staff needs for that people are paying for so the pat- the upcoming fiscal year; protection of trademarks used in commerce, ents will get approved and our techno- to carry out the provisions of certain inter- (3) describe the long term modernization national conventions, and for other pur- plans of the Office; logical innovations will be protected. I poses’’, approved July 5, 1946 (15 U.S.C. 1051 (4) set forth details of any progress towards don’t buy the idea the House is not et seq.) (commonly referred to as the ‘‘Trade- such modernization plans made in the pre- going to take this if we modify it. mark Act of 1946’’ or the ‘‘Lanham Act’’). vious fiscal year; and Actually, what 95 percent of the peo- (5) UNDER SECRETARY.—The term ‘‘Under (5) include the results of the most recent ple in this country would agree to is Secretary’’ means the Under Secretary of audit carried out under subsection (f). that the Patent Office ought to get the Commerce for Intellectual Property. (e) ANNUAL SPENDING PLAN.— money we are paying for patent fees, (b) FUNDING.— (1) IN GENERAL.—Not later than 30 days after the beginning of each fiscal year, the just as the FDA should get the money (1) IN GENERAL.—Section 42 of title 35, paid by drug companies for new appli- United States Code, is amended— Director shall notify the Committees on Ap- (A) in subsection (b), by striking ‘‘Patent propriations of both Houses of Congress of cations, just as the Park Service and Trademark Office Appropriation Ac- the plan for the obligation and expenditure should put the money for the camping count’’ and inserting ‘‘United States Patent of the total amount of the funds for that fis- sites—the paid-for camping sites—back and Trademark Office Public Enterprise cal year in accordance with section 605 of the into the camping sites. Why would we Fund’’; and Science, State, Justice, Commerce, and Re- run away from doing the right thing? (B) in subsection (c), in the first sentence— lated Agencies Appropriations Act, 2006 I find it very difficult when we ra- (i) by striking ‘‘To the extent’’ and all that (Public Law 109–108; 119 Stat. 2334). tionalize down doing the correct thing follows through ‘‘fees’’ and inserting ‘‘Fees’’; (2) CONTENTS.—Each plan under paragraph (1) shall— that everybody agrees should be done and but we will not do it for the right rea- (ii) by striking ‘‘shall be collected by and (A) summarize the operations of the Office shall be available to the Director’’ and in- for the current fiscal year, including finan- sons. That is why we have a 12-percent serting ‘‘shall be collected by the Director cial details and staff levels with respect to approval rating. That is why people and shall be available until expended’’. major activities; and don’t have confidence in Congress—be- (2) EFFECTIVE DATE.—The amendments (B) detail the operating plan of the Office, cause we walk away from the tough made by paragraph (1) shall take effect on including specific expense and staff needs, challenges of bullies who say they the later of— for the current fiscal year. won’t do something if we do what is (A) October 1, 2011; or (f) AUDIT.—The Under Secretary shall, on an annual basis, provide for an independent right. I am not going to live that way. (B) the first day of the first fiscal year that I am not going to be a Senator that begins after the date of the enactment of audit of the financial statements of the Of- this Act. fice. Such audit shall be conducted in ac- way. I am going to stand on the posi- cordance with generally acceptable account- (c) USPTO REVOLVING FUND.— tion of principle. ing procedures. (1) ESTABLISHMENT.—There is established This is a principle with which 95 Sen- in the Treasury of the United States a re- (g) BUDGET.—The Fund shall prepare and ators in this body agree. We are going volving fund to be known as the ‘‘United submit each year to the President a busi- to have several of our leaders try to get States Patent and Trademark Office Public ness-type budget in a manner, and before a them not to do that on the basis of ra- date, as the President prescribes by regula- Enterprise Fund’’. Any amounts in the Fund tionalization to a bully system that shall be available for use by the Director tion for the budget program. (h) SURCHARGE.—Notwithstanding section says: We will not do the oversight, but without fiscal year limitation. 11(i)(1)(B), amounts collected pursuant to the we still want to be in control. (2) DERIVATION OF RESOURCES.—There shall surcharge imposed under section 11(i)(1)(A) In fact, in the process of that, Amer- be deposited into the Fund [and recorded as shall be credited to the United States Patent offsetting recipts] on or after the effective ica loses because we have 750,000 pat- and Trademark Office Public Enterprise date of subsection (b)(1)— ents that are pending right now, and Fund. (A) any fees collected under sections 41, 42, there should only be about 100,000. and 376 of title 35, United States Code, pro- Mr. COBURN. I thank the chairman The bullies have won in the past, and vided that notwithstanding any other provi- of the Judiciary Committee. I noted I am not going to take it anymore. I sion of law, if such fees are collected by, and earlier, before I came to the floor, he am going to stand up and challenge it payable to, the Director, the Director shall supported it in principle and we have a every time. I am going to make the ar- transfer such amounts to the Fund, provided, difference in principle about what gument that if a person pays a fee for however, that no funds collected pursuant to would happen to the bill. This is a something in this country for the gov- section 9(h) of this Act or section 1(a)(2) of Public Law 111–45 shall be deposited in the minimal technical correction that was ernment to do, that money ought to be Fund; and recommended to us, and I appreciate spent doing what it was paid to the (B) any fees collected under section 31 of the Senator for allowing that to be government to do. It is outside of a the Trademark Act of 1946 (15 U.S.C. 1113). considered. tax; it is a fee. It is immoral and close

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.038 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5420 CONGRESSIONAL RECORD — SENATE September 8, 2011 to being criminal to not correctly the expense of everybody else. They Angiomax might have been able to hit phar- spend that money from that fee. have access. Those who are lowly, macies since 2010, costing the Medicines Co. If our body decides today we are those who are minimal in terms of between $500 million and $1 billion in profits. If only the story ended there. going to table this amendment, the their material assets do not. It is the Instead, the Medicines Co. has mounted a question the American people have to type of thing that undermines the con- lobbying offensive to get Congress to end run ask is, Where is the courage in the Sen- fidence we need to have. the judicial system. Since 2006, the Medi- ate to do what is best for our country? I just wanted to say I am a cosponsor cines Co. has wrangled bill after bill onto the Why are the Senators here if they are of Senator SESSIONS’ amendment. I be- floor of Congress that would change the rules not going to do what is best for the lieve he is accurate. I think they have retroactively or give the Patent Office direc- country? Why are they going to play won this in court. It is on appeal. They tor discretion to accept late filings. One the game of rationalization and extor- will probably win it on appeal. This version was so overtly drawn as an earmark that it specified a $65 million penalty for late tion on principles that matter so much will end up being necessary, and there filing for ‘‘a patent term extension . . . for a to our future? I will not do that any- is a way for us to fix it if, in fact, they drug intended for use in humans that is in more. Everybody knows this is the lose, if it is appropriate to do that. I the anticoagulant class of drugs.’’ right thing to do. We are babysitting believe it is inappropriate at this time. . . . no one would pretend the impetus for some spoiled Members of Congress who I yield the floor and reserve the re- this measure isn’t an insider favor to save don’t want to carry out their respon- mainder of my time. $214 million for a Washington law firm and sibilities in an honorable way and do Mr. MCCAIN. Mr. President, I rise in perhaps more for the Medicines Co. There the oversight that is necessary. What support of the Sessions amendment was never a problem to fix here. In a 2006 which seeks to remove an egregious ex- House Judiciary hearing, the Patent Office they want to do is complain that they noted that of 700 patent applications since do not have control. ample of corporate welfare and blatant 1984, only four had missed the 60-day dead- Well, this bill authorizes funds for 7 earmarking, to benefit a single inter- line. No wonder critics are calling it the Dog years. We can change that number of est, in the otherwise worthwhile patent Ate My Homework Act. years. We can actually change the ac- reform bill before the Senate. Needed The stakes are also high for patients tual amount of fees if, in fact, they are reform of our patent laws should not be in our health care system. Let me read not doing a good job. But right now, as diminished nor impaired by inclusion an excerpt from the Generic Pharma- already put in the RECORD, there is no of the shameless special interest provi- ceutical Association letter dated July history of significant oversight to the sion, dubbed ‘‘The Dog Ate My Home- 20, 2011: Patent Office, so they would not know work Act’’ that benefits a single drug The Medicines Company amendment in the first place. So what we are ask- manufacturer, Medicines & Company, adopted during House consideration of H.R. ing is to do what is right, what is to excuse their failure to follow the 1249 modifies the calculation of the 60-day transparent, what is morally correct drug patent laws on the books for over period to apply for a patent term extension and give the Patent Office the oppor- 20 years. and applies that new definition to ongoing tunity to do for America what it can do The President tonight will deliver litigation. We are deeply concerned about for them instead of handcuffing us and another speech to tell us that unem- the precedent of changing the rules of the ployment is too high and that we need patent extension process retroactively, handicapping us where we cannot com- which appears to benefit only one company— pete on intellectual property in our to get America back to work to turn The Medicines Company, which missed the country. around our near stagnant economy. filing deadline for a patent extension for its I have said enough. I will reserve the While it may end up being more of the patent on the drug Angiomax. remainder of my time when I finish same policies that have not worked for If enacted into law, this provision would talking about one other item. the last 21⁄2 years, I look forward to change the rules to benefit one company There is an earmark in this patent hearing what he has to say. But, look that, by choice, waited until the last minute bill for The Medicines Company. It at what is going on here today, just a to file a simple form that hundreds of other ought not be there. This is something companies have filed in a timely manner couple hours before the President tells since the enactment of the Hatch-Waxman that is being adjudicated in the courts us how he proposes to fix the economy, Act in 1984. In doing so, the amendment right now. Senator SESSIONS has an there are 14 million Americans out of would ultimately cost consumers and the amendment that would change it. I be- work and a full day of the Senate’s government hundreds of millions of dollars lieve it is inappropriate to specify one time is being spent debating a bailout by delaying the entry of safe, affordable ge- company, one situation on a drug that of a prominent law firm and a drug neric medications. . . . is significant to this country, and we manufacturer. I think the American The rules and regulations that govern pat- are fixing the wrong problem. We prob- people would be justified in wondering ents and exclusivity pertaining to both ge- neric and brand drugs are important public ably would not win that amendment. I if they were in some parallel universe. policy. While it is Congress’s prerogative to think it is something the American Patent holders who wish to file an change or clarify statutory filing deadlines, people ought to look at and say: Why is extension of their patent have a 60-day we strongly urge you to do so in a manner this here? Why is something in this big window to make the routine applica- that does not benefit one company’s liti- bill that is so important to our coun- tion. There is no ambiguity in this gating position. GPhA urges you to strike try? timeframe. In fact, there is no reason section 37 from H.R. 1249. I agree with our chairman. He has to wait until the last day. A patent Passing the Sessions amendment and worked months, if not years, over the holder can file an extension application removing the provision from the bill is last 6 years trying to get to this proc- any time within the 60-day period. In- not detrimental to passing the patent ess, and now we have this put in. We deed, hundreds and hundreds of drug reform bill. The bailout provision was did not have it in ours. The chairman patent extension applications have not included in the Senate-passed pat- did not have it in ours. It came from been filed since the law was enacted. ent bill earlier this year. It was added the House. Four have been late. Four! in the House. The provision can and We ought to ask the question Why is Why is this provision in the patent should be stripped in this vote today. it there? Why are we interfering in reform bill? One reason: special inter- The House can easily re-pass the bill something that is at the appellate est lobbying to convince Congress to without the bailout provision and send court level right now? Why are we relieve the company and its law firm it to the President. doing that? None of us can feel good from their mistakes. Millions of dollars Support the Sessions amendment and about that. None of us can say it is the in branded drug profits are at stake for send a loud signal to the American right thing to do. Why would we tol- a single company who will face generic public, who are watching what we do, erate it? competition much earlier than if a pat- that laws matter and that this kind of It is this lack of confidence in Amer- ent extension would have been filed on business has no place in Congress. ica; it is about a lack of confidence in time. Mr. LEAHY. Mr. President, this is an us. When people know and find out Let me read from the Wall Street amendment that can derail and even what has happened here, they are going Journal Editorial page today: kill this bill—a bill that would other- to ask the question. The powerful and As blunders go, this was big. The loss of wise help our recovering economy, un- the wealthy advantage themselves at patent rights means that generic versions of leash innovation and create the jobs

VerDate Mar 15 2010 01:50 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.041 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5421 that are so desperately needed. I have cluded the Great Compromise. Ideolog- with both the Republican and Demo- worked for years against Patent Office ical purity does not lead to legislative cratic leaders over there. There is no fee diversion, but oppose this amend- enactments. This House compromise reason to believe their position will ment at this time. Its formulation was can make a difference and make real change, but we insist on ideological pu- rejected by the House of Representa- progress against fee diversion. It is rities—including something I would tives, and there is no reason to believe something we can support and there like. The amendment would take years that the House’s position will change. are many, many companies and organi- of effort, destroy the job prospects rep- Instead, for ideological purity, this zations that do support this final work- resented by this bill. While I oppose the amendment can sink years of effort out in order to get the bill enacted fee diversion, I also oppose this amend- and destroy the job prospects rep- without further delay, as do I. ment. resented by this bill. So while I oppose The America Invents Act, as passed Does this bill have every single thing fee diversion, I also oppose the Coburn by the House, creates a new Patent and in it I want? No. We could write 100 amendment. Trademark Fee Reserve Fund (the ‘‘Re- patent reform legislations in this body I kept my commitment to Senator serve Fund’’) into which all fees col- where each one of us has every single COBURN and included his preferred lan- lected by the USPTO in excess of the thing we want, and we would have 100 guage in the managers’ amendment amount appropriated in a fiscal year different bills. We only have one. It which the Senate considered last are to be deposited. Fees in the Reserve does not have all the things I like, but March. The difference between then Fund may only be used for the oper- that is part of getting legislation and now is that the Republican leader- ations of the Patent and Trademark passed. ship of the House of Representatives Office. Through the creation of the Re- I did keep my commitment to Sen- rejected Senator COBURN’s formulation. serve Fund, as well as the commitment ator COBURN. I kept his language in the They preserved the principle against by House appropriators, H.R. 1249 managers’ amendment, and I caught a fee diversion but changed the language. makes important improvements in en- lot for doing that—I am a member of The language in the bill is that which suring that user fees collected for serv- the Appropriations Committee—but I the House devised and a bipartisan ma- ices are used by the Patent and Trade- kept it in there. The difference between jority voted to include. It was worked mark Office for those services. then and now is that the Republican out by the House Republican leadership Voting for the Coburn amendment is leadership of the House of Representa- to satisfy House rules. The provision a vote to kill this bill. It could kill the tives rejected Senator COBURN’s formu- bill over a formality—the difference be- Senator COBURN had drafted and offers lation. They preserved the principle again with his amendment today ap- tween a revolving fund and a reserve against fee diversion but changed the parently violates House Rule 21, which fund. It would require the House to re- language. In doing that, however, it is prohibits converting discretionary consider the whole bill again. They not a total rejection. They actually spent days and weeks working out spending into mandatory spending. So tried to work out a compromise. The their compromise in good faith. And it instead of a revolving fund, the House language of the bill, which the House was worked out by the House Repub- established a reserve fund. That was devised—a bipartisan majority voted to lican leadership. There is no reason to the compromise that the Republican include—was worked out by the House think they will reconsider and allow House leadership devised between Republican leadership to satisfy the the original Coburn language to violate Chairmen SMITH, ROGERS and RYAN. House rules. their rules and avoid oversight. They Yesterday I inserted in the RECORD the The provision that Senator COBURN have already rejected that language, June letter for Congressmen ROGERS has drafted and offers, again, with his the very language proposed by the and RYAN to Chairman SMITH of the amendment today apparently violates Coburn amendment. House Judiciary Committee. Today I House rule 21 which prohibits con- We should not kill this bill over this verting discretionary spending into ask consent to insert into the RECORD amendment. We should reject the the commitment letter from Chairman mandatory spending. amendment and pass the bill. The time What the House did—and actually ac- ROGERS to Speaker BOEHNER. to put aside individual preferences and The America Invents Act, as passed complished what both Senator COBURN ideological purity is upon us and we and I and others want—instead of a re- by the House, continues to make im- need to legislate. That is what the portant improvements to ensure that volving fund was to establish the re- American people elected us to do and serve fund. That was the compromise fees collected by the U.S. Patent and expect us to do. The time to enact this Trademark Office (USPTO) are used for that the Republican House leadership bill is now. Vote no on the Coburn devised between Chairman SMITH, Patent and Trademark Office activi- amendment. Chairman ROGERS, and Chairman ties. That office is entirely fee-funded I have listened to the Senator from RYAN. and does not rely on taxpayer dollars. Oklahoma, and no matter what we say Yesterday, I inserted into the RECORD It has been and continues to be subject about it, his is an amendment that can the June letter from Congressmen ROG- to annual appropriations bills. That al- derail and even kill this bill. He ex- ERS and RYAN to Chairman SMITH to lows Congress greater opportunity for presses concern as to why the bill oversight. the House Judiciary Committee. should be sought because somebody ob- I ask unanimous consent to have The legislation that passed the Sen- jects to the bill. I sometimes ask my- ate in March would have taken the printed in the RECORD the commitment self that question. Of course, the dis- letter from Chairman ROGERS to Patent and Trademark Office out of tinguished Senator from Oklahoma has the appropriations process, by setting Speaker BOEHNER. objected to many items going forward There being no objection, the mate- up a revolving fund that would have al- on his own behalf, but this is an rial was ordered to be printed in the lowed the office to set fees and collect amendment that could derail or even RECORD, as follows: and spend money without appropria- kill the bill. This is a bill that would COMMITTEE ON APPROPRIATIONS, tions legislation and congressional otherwise help our recovering economy oversight. Instead of a revolving fund, Washington, DC, June 22, 2011. to unleash innovation, create the jobs Hon. JOHN BOEHNER, the House formulation against fee di- so desperately needed. Speaker of the House, House of Representatives, version establishes a separate account I probably worked longer in this body Washington, DC. for the funds and directs that they be than anybody against Patent Office fee Hon. ERIC CANTOR, used for U.S. Patent and Trademark diversion. As the Senator from Okla- Majority Leader, House of Representatives, Office. The House Appropriations homa knows, I put a provision in the Washington, DC. Chairman has committed to abide by managers’ package to allow the fees to DEAR SPEAKER BOEHNER AND LEADER CAN- that legal framework. go to the Patent Office. Now it is a TOR: I write regarding provisions in H.R. The House forged a compromise. De- 1249, The America Invents Act, affecting lobby to keep that in in the other body. funding of the Patent Trademark Office spite what some around here think, Its formulation was rejected by the (PTO). Following constructive discussions that is the essence of the legislative House of Representatives. with Chairman Smith of the Judiciary Com- process. The Founders knew that when There is no reason to believe the mittee, this legislation now includes lan- they wrote the Constitution and in- House position will change. I checked guage that will preserve Congress’ ‘‘power of

VerDate Mar 15 2010 01:50 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.022 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5422 CONGRESSIONAL RECORD — SENATE September 8, 2011 the purse,’’ under Article I, Section 9, Clause rects that account be used only by the ent system. It will make the Patent and 7 of the Constitution. The language ensures: U.S. Patent and Trademark Office. The Trademark Office more accessible and useful the PTO budget remains part of the annual House Appropriations chairman is com- to all inventors, large and small. In addition, appropriations process; all PTO collected mitted to abide by that legal frame- the provisions of H.R. 1249 on Patent and fees will be available only for PTO services Trademark Office funding will ensure that and activities in support of the fee paying work. The Speaker is committed to the user fees paid to the USPTO will be community; and finally, this important that. The House forged a compromise. available to the Office for processing patent agency will continue to be subject to over- That is the essence of the legislative applications and other important functions sight and accountability by the Congress on process. of the Office. an annual basis. The Founders knew when they wrote H.R. 1249 and S. 23 are the products of To assure that all fees collected for PTO the Constitution to include the Great many years of skillful and difficult legisla- remain available for PTO services, H.R. 1249 Compromise. Ideological purity does tive work in both the House and the Senate. H.R. 1249 represents a thoughtful and bal- provides that if the actual fees collected by not lead to legislative enactments. Ide- the PTO exceed its appropriation for that fis- anced compromise that is endorsed by vir- cal year, the amount would continue to be ological purity does not lead to legisla- tually all stakeholders. We urge the Senate reserved only for use by the PTO and will be tive enactments. to adopt H.R. 1249 as acted upon by the held in a ‘‘Patent Trademark Fee Reserve The House compromise can make a House and pass it without amendment as Fund’’. difference. It made real progress soon as possible. At the same time, consistent with the lan- against fee diversion, which is some- Sincerely, guage included in H.R. 1249, the Committee thing we can support. There are many ROBERT W. HOLLEYMAN, on Appropriations will also carry language companies and organizations that do President and CEO. that will ensure that all fees collected by support this in order to get the bill en- SBE COUNCIL, PTO in excess of its annual appropriated 1 level will be available until expended only to acted without delay. After 6 ⁄2 years, Oakton, VA, June 29, 2011. PTO for support services and activities in let’s not delay any more. DEAR CHAIRMAN LEAHY AND RANKING MEM- support of the fee paying community, sub- This is going to create jobs. We have BER GRASSLEY: The Small Business & Entre- ject to normal Appropriations Committee 600,000 to 700,000 patents sitting there preneurship Council (SBE Council) has been oversight and review. waiting to be processed. Let’s get on a leading advocate for patent reform within I look forward to working with the rel- with it. For all of these fees and the re- the small business community, and we urge evant stakeholders in efficiently imple- you to work with the leadership of the Sen- serve fund can only be used for the op- ate to bring the America Invents Act (H.R. menting this new process. erations of the Patent and Trademark I believe this approach will help U.S. 1249) to the Senate floor for approval. innovators remain competitive in today’s Office. I don’t know what more we can H.R. 1249 would improve the patent system global economy and this in turn will con- do. But I would say I am perfectly will- in key ways. For example, the U.S. patent tribute to significant job creation here in the ing to accept what the House did be- system would be brought in step with the United States, while holding firm to the cause it assures that the fees go to the rest of the world. The U.S. grants patents on funding principles outlined in the Constitu- Patent Office. a first-to-invent basis, rather than the first- tion. I am also well aware that voting for inventor-to-file system that the rest of the Sincerely, world follows. First-to-invent is inherently this amendment kills the bill. It could ambiguous and costly, and that’s bad news HAROLD ROGERS, kill the bill over a formality—the dif- Chairman, House Committee on for small businesses and individual inven- Appropriations. ference between a reserve fund and a tors. revolving fund. A shift to a ‘‘first-inventor-to-file’’ system Mr. LEAHY. I would note that it has I think the House Republican leader- creates greater certainty for patents, and been suggested somehow the Appro- ship worked out their compromise in amounts to a far simpler and more trans- priations chairman is not going to keep good conscience, and I agree with it. parent system that would reduce costs in the rare cases when conflict exists over who has his word. Well, Chairman ROGERS is a The U.S. Patent and Trademark Of- Republican. I have worked with him a the right to a patent. By moving to a first- fice is funded entirely by user fees, and inventor-to-file system, small firms will in lot. He has always kept his word to me, the Leahy-Smith America Invents Act just as we have the most decorated vet- no way be disadvantaged, as some claim, will ensure the PTO has access to the while opportunities in international markets eran of our military serving in either fees it collects. We have heard from a will expand. body as chairman of the Senate Appro- number of organizations which agree In addition, an Associated Press report, for priations Committee, the only Medal of with that, and I ask unanimous con- example, noted ‘‘that it takes an average of Honor recipient now serving, Senator sent that a sample of these letters from three years to get a patent approved and INOUYE. Both he and the ranking Re- that the agency has a backlog of 1.2 million the Business Software Alliance, the pending patents, including more than 700,000 publican, Senator COCHRAN, have al- Small Business and Entrepreneurship ways kept their word to me certainly that haven’t reached an examiner’s desk.’’ Council, DuPont, and other financial Part of the problem here is that revenues in more than the third of a century I organizations be printed in the from patent fees can be drained off by Con- have served on that committee. RECORD. gress to be spent elsewhere. The America Invents Act, as passed There being no objection, the mate- The agreement reached in the House on by the House, continues to make im- rial was ordered to be printed in the USPTO funding will assure that the fees paid to the USPTO by inventors will not be di- portant improvements. It ensures the RECORD, as follows: fees collected by the U.S. Patent and verted elsewhere, but instead be made avail- BUSINESS SOFTWARE ALLIANCE, able for processing patent applications. Trademark Office are used for Patent June 29, 2011. and Trademark Office activities. The While the Senate’s approach in S. 23 to pre- Hon. HARRY REID, vent diversion of USPTO funds would have one thing in there is that we in the Majority Leader, been a better choice, the House bill still pro- Congress at least have a chance to Washington, DC. vides an effective option. make sure they are using it the way Hon. MITCH MCCONNELL, Patent reform is needed to clarify and sim- they are supposed to. Minority Leader, plify the system; to properly protect legiti- The office is entirely fee funded. It Washington, DC. mate patents; and to reduce costs in the sys- does not rely on taxpayer dollars. It DEAR SENATOR REID AND SENATOR MCCON- tem, including when it comes to litigation NELL: We urge you to bring H.R. 1249 to the has been and continues to be subject to and the international marketplace. All of Senate floor as soon as the Senate’s schedule this, of course, would aid small businesses the annual appropriations bill which permits. and the overall economy. allows the oversight that we are elect- The Business Software Alliance (BSA) H.R. 1249, like S. 23, is a solid bill, and the ed and paid for by the American people strongly supports modernizing our patent opportunity for long overdue and much-need- to do. system. An efficient and well-operating pat- ed patent reform should not be lost. The legislation we passed in March ent system is necessary to promote healthy Thank you for considering the views of the would have taken the Patent Trade- and dynamic innovation. Innovation is criti- small business community. Please feel free mark Office out of the appropriations cally important to software and computer to contact SBE Council with questions or if companies’ ability to provide new and better we can be of assistance on this important process by setting up a revolving fund. tools and technologies to consumers and cus- issue for small businesses. Instead of a revolving fund, the House tomers. Sincerely, formulation against fee diversion es- BSA member companies believe H.R. 1249 KAREN KERRIGAN. tablished a separate account and di- establishes a transparent and efficient pat- President & CEO.

VerDate Mar 15 2010 01:50 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.023 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5423 DUPONT, and ensure that the Patent and Trademark this bill through, and I understand that Wilmington, DE, July 6, 2011. Office (PTO) has the tools necessary to main- he sees this as a compromise. I don’t. I Hon. PATRICK J. LEAHY, tain our patent system as the best in the understand we are going to differ on world. We strongly support the improved re- Chairman, Committee on the Judiciary, Wash- that and agree to disagree. ington, DC. examination procedures in H.R. 1249, which With that, I yield the floor to allow Hon. CHARLES E. GRASSLEY, will allow the experts at PTO to review low- Ranking Member, Committee on the Judiciary, quality business-method patents against the the chairman to speak, and I reserve Washington, DC. best prior art. Equally important, the bill the remainder of my time. DEAR CHAIRMAN LEAHY AND RANKING MEM- provides the PTO with increased and predict- Mr. LEAHY. I thank the Senator. I BER GRASSLEY: As a world leader in science able funding. This certainty is absolutely reserve the remainder of my time and and innovation, including agriculture and in- critical if the PTO is to properly allocate re- suggest the absence of a quorum. dustrial biotechnology, chemistry, biology, sources and hire and retain the expertise The PRESIDING OFFICER. The materials science and manufacturing, Du- necessary to benefit the entire user-commu- nity. clerk will call the roll. Pont recognizes the nation’s patent system The assistant bill clerk proceeded to is a cornerstone in fostering innovation and This bill has been nearly a decade in the creating jobs. Patents continue to be one of making and is supported by a vast cross-sec- call the roll. the engines for innovation and a process for tion of all types of inventors and businesses. Mr. SANDERS. Mr. President, I ask discovery that leads to rich, new offerings It is time to send patent reform to the Presi- unanimous consent that the order for for our customers and gives our company the dent for signature, and we strongly encour- the quorum call be rescinded. edge to continue transforming markets and age the Senate to take up and pass H.R. 1249 The PRESIDING OFFICER (Mr. without delay. society. Our stake in the patent system is LEAHY). Without objection, it is so or- Sincerely, significant—in 2010, DuPont filed over 2,000 dered. patent applications and was awarded almost American Bankers Association, Amer- FLOODING IN VERMONT 700 U.S. patents. Given the importance of its ican Council of Life Insurers, American patents, DuPont has been a strong supporter Financial Services Association, Amer- Mr. SANDERS. Mr. President, I wish of efforts to implement patent reform legis- ican Insurance Association, The Clear- to pick up on a point the senior Sen- lation that will improve patent quality and ing House Association, Consumer ator from Vermont made earlier today. give the U.S. Patent and Trademark Office Bankers Association, Credit Union Na- Both he and I have had the opportunity the resources it needs to examine and grant tional Association, The Financial Serv- to travel throughout the State of patents in a timely manner. ices Roundtable, The Independent Com- munity Bankers of America, Mortgage Vermont to visit many of our towns We believe that any changes to the patent which have been devastated by one of system need to be made in a way that Bankers Association, National Associa- strengthens patents and supports the impor- tion of Mutual Insurance Companies, the worst natural disasters in our tant goals of fostering innovation and cre- Property Casualty Insurers Association State’s history. ating jobs. In our view, the Leahy-Smith of America, Securities Industry and Fi- We have seen in the southern part of America Invents Act, H.R. 1249, achieves nancial Markets Association. the State—in Wilmington, for exam- these objectives, and we urge you to consider Mr. LEAHY. Mr. President, I ask ple—the entire business district se- adoption of this bill. unanimous consent that I be allowed to verely damaged. I have seen in central The agreement reached in the House on reserve the remainder of my time, and Vermont a mobile home park almost USPTO funding will assure that the fees paid I suggest the absence of a quorum. completely wiped out, with people who to the USPTO by inventors will not be di- The PRESIDING OFFICER. The verted and will be made available to the Of- are in their eighties and are now hav- fice for processing patent applications and clerk will call the roll. ing to look to find new places in which other important functions of the Office. The assistant bill clerk proceeded to to live. I have seen a public housing While we would have preferred the Senate’s call the roll. project for seniors in Brattleboro se- approach in S. 23 to prevent diversion of Mr. COBURN. Mr. President, I ask verely damaged. A lot of seniors there USPTO funds, we believe that acceptance of unanimous consent that the order for are now having to find new places to the House bill provides an effective and the the quorum call be rescinded. live. We have seen the State office most immediate path forward to address The PRESIDING OFFICER. Without complex in Waterbury—the largest problems of the patent office. H.R. 1249, like objection, it is so ordered. State office building in the State, S. 23, is an excellent bill. These bills are the Mr. COBURN. Mr. President, I wish housing 1,700 Vermont workers, the product of many years of skillful and dif- to respond to my chairman’s com- nerve center of the State—devastated. ficult legislative work in both the House and ments. First of all, what we have pro- the Senate. We believe the time has now Nobody is at work there today. posed came out of the Judiciary Com- come for the Senate to take the final legisla- We have seen hundreds of bridges and mittee in the House 32 to 3. In other tive act required for enactment of these his- roads destroyed, and right now, as we words, only three people on the Judici- toric reforms. speak, there are rains coming in the We look forward to patent reform becom- ary Committee in the House objected southern part of the State, causing ing a reality in the 112th Congress, due in to this. significant measure to your leadership, and The other point I wish to make is the more flooding, more damage. We have we thank you for your efforts in this critical letter from Chairman ROGERS does not seen a wonderful gentleman from Rut- policy area. bind the next Appropriations Com- land lose his life because he was doing Very truly yours, mittee chairman. I think everybody his job to make sure the people of that P. MICHAEL WALKER, would agree with that. It only binds area were protected. So we have seen Vice President, Assist- damage the likes of which we have ant General Counsel him and it only binds him as long as he honors his commitment. I have no never seen in our lifetime. and Chief Intellec- What I would say—and I know I tual Property Coun- doubt he will honor his commitment as sel. long as he is chairman. speak for the senior Senator from The third point I wish to make is Vermont as well—is that our country is JUNE 29, 2011. what the House has set up doesn’t the United States of America—the Hon. HARRY REID, make sure the funds go to the PTO, it United States of America. What that Majority Leader, U.S. Senate, just means they can’t go somewhere means is we are a nation such that Washington, DC. else. That is what they have set up. when disaster strikes in Louisiana or Hon. MITCH MCCONNELL, Mississippi in terms of Hurricane Republican Leader, U.S. Senate, They do not have to allow all the funds Washington, DC. collected to go to the PTO. So they can Katrina—I know the Presiding Officer DEAR LEADERS REID AND MCCONNELL: We reserve $200 million or $300 million a remembers the outpouring of support are writing to encourage you to bring H.R. year and put it over there in a reserve from Vermont for the people in that re- 1249, the ‘‘Leahy-Smith America Invents fund and send it to the Treasury which gion. All of our hearts went out to the Act,’’ to the Senate floor at your earliest will cause us to borrow less, but the people in Joplin, MO, when that com- possible convenience and send the bill to the money won’t necessarily go to the munity suffered an incredible tornado President’s desk to be signed into law. H.R. PTO. There is nothing that mandates that took 150 or so lives and devastated 1249 closely mirrors the Senate bill that that city. What America is about and passed earlier this year by an overwhelming the fees collected go to the Patent and 95–5 vote. Trademark Office. what a nation is about is that when Patent reform is essential legislation: en- I understand my chairman. I under- disaster hits one part of the country, actment will spur innovation creating jobs stand his frustration with trying to get we unite as a nation to give support to

VerDate Mar 15 2010 02:44 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.026 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5424 CONGRESSIONAL RECORD — SENATE September 8, 2011 help those communities, those busi- lyst that spurred these inventors to nesses and organizations, large and nesses, those homeowners who have take the risks necessary to bring these small, active in all 50 States. been hurt get back on their feet. ideas to the marketplace. The America Invents Act is the prod- I know the senior Senator from The story of innovation in Vermont uct of more than 6 years of debate and Vermont has made this point many is truly the American story. It has compromise. The stakeholders have times: Right now we are spending bil- been driven by independent inventors crossed the spectrum—from small busi- lions of dollars rebuilding communities and small businesses taking chances on nesses to high-tech companies; finan- in Afghanistan and Iraq. Well, I think new ideas. A strong patent system al- cial institutions to labor organizations; I speak for the vast majority of the lowed these ideas to flourish and life sciences to bar associations. people in this country and in my State brought our country unprecedented More than 180 companies, associa- of Vermont that if we can spend bil- economic growth. These same kinds of tions, and organizations have endorsed lions rebuilding communities in Iraq inventors exist in Vermont today, as the Leahy-Smith America Invents Act. and Afghanistan, we surely can rebuild they do throughout our great country. I ask unanimous consent that a list of communities in Vermont, New Jersey, But these inventors need to be as- these supporters be printed in the North Carolina, and other parts of the sured that the patent system that RECORD. United States of America that have served those who came before them so There being no objection, the mate- been devastated by Hurricane Irene. well can do the same today. The Amer- rial was ordered to be printed in the I think as a body, as a Congress, the ica Invents Act will provide that assur- RECORD, as follows: House and Senate have to work as ex- ance for years to come. LIST OF SUPPORTERS OF THE AMERICA INVENTS peditiously as we can to come up with My distinguished colleague from ACT the funds to help rebuild all of the Vermont and I have both spoken sev- 3M; Abbott Adobe Systems Incorporated; communities that have been so se- eral times on the Senate floor since the Advanced Micro Devices; Air Liquide; Air verely damaged by this terrible flood. I Senate came back in session about the Products; American Bar Association; Amer- look forward to working with my col- devastation in Vermont. I cannot help ican Bankers Association; American Council leagues to make that happen. but think of the devastation that Irene of Life Insurers; American Council on Edu- cation; American Financial Services Asso- With that, I yield the floor and note has caused in so many of our commu- ciation; American Institute of Certified Pub- the absence of a quorum. nities at home. Just as Senator SAND- lic Accountants; American Insurance Asso- The PRESIDING OFFICER. The ERS and Congressman WELCH and Gov- ciation; American Intellectual Property Law clerk will call the roll. ernor Shumlin, I have seen the damage Association; American Trucking Associa- The assistant bill clerk proceeded to and heartbreak firsthand. But I also tion; Apple, Inc.; Applied Materials, Inc.; call the roll. saw the fruits of innovation that will Aruba Networks, Inc.; Assoc. for Competitive Mr. LEAHY. Mr. President, I ask help bring recovery to communities Technology; Assoc. of American Medical Col- unanimous consent that the order for throughout Vermont: the heavy ma- leges. the quorum call be rescinded. Association of American Universities; As- chinery that helped to clear debris and sociation of Public and Land-grant Univer- The PRESIDING OFFICER (Mr. that will build our roads and our sities; Association of University Technology SANDERS). Without objection, it is so bridges and our homes; the helicopters Managers; AstraZeneca; Atheros Commu- ordered. that brought food and water to strand- nications, Inc.; Autodesk, Inc.; Avaya Inc.; Mr. LEAHY. Mr. President, when the ed residents; and the bottles that al- Avid Technology, Inc.; Bank of America; America Invents Act was first consid- lowed safe drinking water to reach Baxter Healthcare Corporation; Beckman ered by the Senate last March, I spoke them. Coulter; Biotechnology Industry Organiza- about the contributions Vermonters The American patent system has tion; Borealis Ventures; Boston Scientific; BP; Bridgestone American Holdings, Inc.; have made to innovation in America helped to develop and refine countless since the founding of our Nation. The Bristol-Meyers Squibb; Business Software technologies that drive our country in Alliance; CA, Inc.; Cadence Design Systems, distinguished Presiding Officer and I times of prosperity but also in times of Inc.; California Healthcare Institute. know about what Vermont has done. I tragedy. It is critical we ensure that Capital One; Cardinal Intellectual Prop- wish to remind everybody that from this system remains the best in the erty; Cargill, Inc.; Caterpillar; Charter Com- the first patent ever issued by our gov- world. munications; CheckFree; Cisco Systems ernment to cutting-edge research and Vermont and the rest of the country Citigroup; The Clearing House Association; inventions produced today Vermonters deserve the world’s best patent system. Coalition for Patent and Trademark Infor- have been at the forefront of innova- The innovators of the past had exactly mation Distribution; Collexis Holdings, Inc.; Computer & Communications Ind. Assoc.; tion since the Nation’s birth. that, but we can ensure that the Computing Technology Industry Associa- Many may think of our Green Moun- innovators who are among us today tion; Consumer Bankers Association; Cor- tain State as being an unlikely hotbed and those who will come in succeeding ning; Council on Government Relations; of innovation, but we have actually generations will have it as well by Courion; Credit Union National Association; over the last few years issued the most passing the America Invents Act. Cummins, Inc.; Dell; The Dow Chemical patents per capita of any State in the I am proud of the inventive contribu- Company. country—actually more patents than a tions that Vermonters have made since DuPont; Eastman Chemical Company; lot of States that are larger than we the founding of this country. I hope to Eastman Kodak; eBay Inc.; Electronics for Imaging; Eli Lilly and Company; EMC Cor- are. It is a small State, to be sure, but honor their legacy. I hope to inspire poration; EnerNOC; ExxonMobil; Facebook; it is one that is bursting with cre- the next generation by securing the Fidelity Investments; Financial Planning ativity. passage of this legislation. Association; FotoTime; General Electric; The rich history of the inventive I have been here for a number of General Mills; Genzyme; GlaxoSmithKline; spirit of Vermont is long and diverse. years, but this is one of those historic Google Inc.; Hampton Roads Technology Vermonters throughout have pursued moments. The patent system is one of Council; Henkel Corporation. innovations from the time of the Indus- the few things enshrined in our Con- Hoffman-LaRoche; HSBC North America; trial Revolution to the computer age. stitution, but it is also something that Huntington National Bank; IAC; IBM; Illi- nois Technology Association; Illinois Tool Vermont inventors discovered new has not been updated for over half a Works; Independent Community Bankers of ways to weigh large objects as well as century. We can do that. We can do America; Independent Inventors; Infineon ways to enjoy the outdoors. They have that today with our vote. We can com- Technologies; Information Technology Coun- perfected new ways to traverse rivers plete this bill. We can send it to the cil; Integrated DNA Technologies; Intel; In- and more environmentally friendly President. The President has assured tellectual Property Owners Association; ways to live in our homes. Over the me he will sign it. We will make Amer- International Trademark Association; Inter- years, as America has grown and pros- ica stronger. We will create jobs. We national Intellectual Property Institute; In- pered, Vermont’s innovative and cre- will have a better system. And it will tuit, Inc.; Iron Mountain; Johnson & John- son; Kalido. ative spirit has made the lives of all not cost American taxpayers anything. Lexmark International, Inc. Logitech, Inc.; Americans better and possibly made That is something we ought to do. Massachusetts Technology Leadership Coun- them more productive. The patent sys- Mr. President, the America Invents cil; Medtronic; Merck & Co, Inc.; Micron tem in this country has been the cata- Act is supported by dozens of busi- Technology, Inc.; Microsoft; Millennium

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.045 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5425 Pharmaceuticals; Milliken and Company; The only thing section 37 does—the So my colleagues should not come to Molecular; Monster.com; Motorola; Mort- only thing—is it codifies what a Fed- the floor and take away from entities gage Bankers Association; National Associa- eral district court has already said and that are trying to compete and be in tion of Federal Credit Unions; National Asso- implements what the U.S. Patent and the marketplace over some techni- ciation of Manufacturers; National Assoc. of Trademark Office is already doing. Mutual Insurance Cos.; National Association cality: the suggestion that because of Realtors; National Semiconductor Cor- There is no breaking of new ground something was filed electronically on a poration; National Retail Federation; Na- here. This is codifying a Federal dis- particular given day at 5 o’clock in the tional Treasury Employees Union; Native trict court, codifying what the Patent afternoon when people had gone American IP Enterprise Council; Net Coali- Office has done, and, in fact, codifying home—they weren’t open—that some- tion; Netflix, Inc.; Network Appliance, Inc.; common sense. It is putting into effect how they deem that not to have been Newegg Inc.; News Corporation; Northrop what is the right decision with respect appropriately filed. Grumman; Novartis; Numenta, Inc.; Nvidia to how we treat patents in our country. But rather than accept that common- OpenAir, Inc.; Oracle; Overstock.com; Part- Section 37 is, in fact, a very impor- nership for New York City; Patent Cafe.com, sense interpretation, the Patent and tant clarification of a currently con- Trademark Office told the Medicines Inc.; PepsiCo, Inc.; Pfizer; PhRMA; Procter & fusing deadline for filing patent term Gamble Company; Property Casualty Insur- Company it was late. They just decided extension applications under the ers Association of America; Red Hat. that. They said: You are late, despite Hatch-Waxman Act. Frankly, this is a Reed Elsevier Inc.; RIM; Salesforce.com, the fact that interpretation contra- clarification, I would say to the Sen- Inc.; SanDisk Corporation; San Jose Silicon dicted the same-business-day rule the ator from Alabama, that benefits ev- Valley Chamber of Commerce; SAP America, FDA uses when interpreting the very Inc.; SAS Institute; Seagate Technology, erybody in the country. In fact, this is LLC; Sebit, LLC; Securities Industry & Fi- a clarification which has already been same statute. So as a result, the issue nancial Markets Association; SkillSoft; put into effect for other types of pat- went to court, and guess what. The Small Business and Entrepreneurship Coun- ents that were once upon a time treat- court told the PTO it was wrong. A cil; Software Information and Industry Asso- ed with the same anomaly. They rec- Federal judge found that the Patent ciation; Sun Microsystems, Inc.; Symantec tified that. They haven’t rectified it Office and FDA had been applying in- Corporation; Tax Justice Network USA; consistent interpretations of the exact TECHQuest Pennsylvania; Teradata Corpora- with respect to this particular section of patent law. same statutory language in the Hatch- tion; Texas Instruments; Texas Society of Waxman Act. The FDA uses one inter- CPAs. So all we are doing is conforming to The Financial Services Roundtable; Toy- appropriate law, conforming to the pretation that has the effect of extend- ota Trimble Navigation Limited; The United standards the Patent Office applies, ing its own internal deadlines, but the Inventors Association of America; United and conforming for all companies in PTO insisted on using a different inter- Steelworkers; United Technologies; U.S. the country, for any company that pretation. The result was a ‘‘heads I Chamber of Commerce; USG Corporation; might be affected similarly. If this win, tails you lose.’’ VeriSign Inc.; Verizon; Visa Inc.; Visi-Trak were a bailout for a single firm or a The PRESIDING OFFICER. The Sen- Worldwide, LLC; VMware, Inc.; Vuze, Inc.; ator’s time has expired. Western Digital Technologies, Inc.; pharmaceutical company, as some have Weyerhaeuser; Yahoo! Inc.; Ze-gen; Zimmer; tried to suggest it might be, why in the Mr. KERRY. Madam President, I ask ZSL, Inc. world did a similar provision pre- unanimous consent to speak for 1 addi- Mr. LEAHY. I yield the floor. viously get reported out of the Senate tional minute. I suggest the absence of a quorum. Judiciary Committee by a vote of 14 to The PRESIDING OFFICER. Without The PRESIDING OFFICER (Mrs. 2? How in the world could this provi- objection, it is so ordered. MCCASKILL). The clerk will call the sion have then passed the House of Mr. KERRY. For companies investing roll. Representatives as it did? And why in innovative medicines, the court The assistant bill clerk proceeded to would many House Republicans have found that the PTO failed to provide call the roll. supported it as they did? The answer is any plausible explanation for this in- Mr. KERRY. Madam President, I ask very simple: Because it is the right consistent approach. It further found unanimous consent that the order for thing to do under the law and under that the PTO’s interpretation had the the quorum call be rescinded. the common sense of how we want pat- effect of depriving applicants of a por- The PRESIDING OFFICER. Without ents treated in the filing process. tion of their time for filing an applica- objection, it is so ordered. The law as currently written, frank- tion. Mr. KERRY. Madam President, re- ly, was being wrongly applied by the After considering all the relevant garding the parliamentary situation, Patent and Trademark Office. And you factors, the court adopted the FDA’s how much time remains for Senator don’t have to take my word for that; interpretation. So the court told the that is what a Federal court has said CANTWELL? PTO that they were wrong and it was The PRESIDING OFFICER. Thirteen on more than one occasion. Each time, they, and not the Medicines Company, the court has ruled that it was the Pat- minutes remains. who made a mistake. ent and Trademark Office, not an indi- Mr. KERRY. It is my understanding So this is not an earmark. It isn’t, as vidual firm called WilmerHale or Medi- that Senator CANTWELL wants to pre- Senator SESSIONS contends, a single- cines Company—not those two—that serve a component of that, so I would, company bailout. It is a codification of made a mistake. on behalf of Senator CANTWELL, yield Let me make that very clear so the a court ruling. It is a clarification. It is myself 5 minutes at this time. record is as clear as it can be. The cur- common sense. It puts a sensible court The PRESIDING OFFICER. Without rent law as it is written says that ‘‘to decision into legislative language, and objection, it is so ordered. obtain an extension of the term of a it is legislative language that applies AMENDMENT NO. 600 patent under this section, the owner of to all companies across the country Mr. KERRY. Madam President, I ap- record of the patent or its agent shall equally. It doesn’t single out any par- preciate the comments of our friend submit an application to the Director. ticular company but amends the patent from Alabama, Senator SESSIONS, re- . . . Such an application may be only law for the benefit of all applicants. garding his amendment to strike sec- submitted within the sixty-day period I ask my colleagues to oppose the tion 37 of the patent reform bill, but I beginning on the date the product re- Sessions amendment on the merits. disagree with him on substantive ceived permission’’ under the appro- More importantly, we need to move terms, and I ask our colleagues to look priate provision of law. forward with this important bill on carefully at the substance of this Now, the FDA reasonably interprets which Chairman LEAHY and Senator amendment and the importance of this this language to mean that if some- GRASSLEY have worked so hard. Pass- amendment with respect to precedent thing is received after the close of busi- ing the Sessions amendment would not for one company from Massachu- ness on a given business day, it is stop that. It would require a House- setts or for one entity but for compa- deemed to be received the next busi- Senate conference on the bill, and it nies all over the country and for the ness day. Under this interpretation, would at best seriously delay and at application of patent law as it ought to the filing by the Medicines Company worst make it impossible to exact pat- be applied. was indisputably timely. ent reform during this Congress. So

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I have also talked to some of our commercially used the subject matter Madam President, I ask unanimous other local leaders, our county judges, in the United States, either in connec- consent that at 4 p.m. the Senate pro- such as Grimes County judge Betty tion with an internal commercial use ceed to the votes in relation to the Shiflett, who told me that while they or an actual arm’s length sale or other amendments and passage of H.R. 1249, have no unmet needs right now, they arm’s length commercial transfer of a the America Invents Act, with all are very concerned about the threat to useful end result of such commercial other provisions of the previous order life and property and are working as use; and (2) the commercial use oc- remaining in effect; that the final 10 hard as they can to contain the fires. curred at least one year before the ear- minutes of debate be equally divided I have also talked to our outstanding lier of either the effective filing date of between the chairman and ranking chief of the Texas Department of Emer- the claimed invention or the date on member of the Judiciary Committee or gency Management and the Director of which the claimed invention was dis- their designees, with the chairman con- the Texas Forest Service who tell me closed to the public in a manner that trolling the final 5 minutes; further, that as many as 2,000 Americans from qualified as an exception from prior that there be 4 minutes equally divided places other than Texas have come to art. between proponents and opponents the State to help fight these fires and As the distinguished chairman of the prior to each vote. help protect property and life. Committee on the Judiciary knows, The PRESIDING OFFICER. Is there We have had a good Federal response such prior user rights, if properly craft- objection? to one extent, and that is the U.S. For- ed and understood, can be of great ben- Without objection, it is so ordered. est Service has provided planes, bull- efit to keeping high paying jobs in this Mr. KERRY. Madam President, I re- dozers, and other equipment. Unfortu- country by giving U.S. companies a re- serve the remainder of Senator CANT- nately, we have seen the White House alistic option of keeping internally WELL’s time. so far not extend the disaster declara- used technologies as trade secrets. The PRESIDING OFFICER. The Sen- tion beyond the original 52 counties ap- Mr. LEAHY. Madam President, my ator from Texas. proved for FEMA assistance on May 3. colleague and friend from Missouri is Mr. CORNYN. May I inquire of the I should say that assistance ran out on correct Prior user rights, if properly Chair how much time remains for me May 3, more than 4 months ago. Suffice crafted and asserted, can be of great to speak before getting to the last it to say, the disaster declaration benefit to keeping high-paying jobs order? should be extended to cover the rest of here at home. The PRESIDING OFFICER. There is the State, at least 200 more Texas Mr. BLUNT. I thank my good friend. 41⁄2 minutes remaining. counties that need Federal assistance. A robust prior user right is not needed TEXAS WILDFIRES I am informed from reading the news- in today’s first-to-invent regime. This Mr. CORNYN. Madam President, I paper that President Obama reached is because, if a prior-user was sued for wish to speak for about 41⁄2 minutes on out to Governor Perry yesterday to ex- infringement, the patent could be in- the natural disasters that have been tend his condolences. But, frankly, validated under section 102(g)(2) be- confronting our Nation and in par- more than condolences, what we need cause the prior-user was the first-to-in- ticular Texas, where the State has had are the resources to help fight these vent. However, should H.R. 1249’s first- about 31⁄2 million acres of land burned, fires to deal with the disaster and to to-file system become law, the prior in- with many people now finding them- help get people back into their homes vention bar to patentability under sec- selves literally homeless as a result of as soon as possible. tion 102(g)(2) will be eliminated. This fires that many of my colleagues have I would just say in conclusion, switch to first-to-file then presents the seen on TV or watched on the Internet Madam President, that the majority question of whether a non-patent-filing but which, frankly, do not capture the leader has raised the question of manufacturer should be given some scale of the devastation. whether disaster relief should be paid prior user rights that would continue Just to give you an idea of the scope for or whether it should be borrowed to allow these non-patented internal of this natural disaster, so far, in 2011, money. I come down on the side of be- uses. Section 5 of H.R. 1249 attempts to more than 18,000 wildfires have been re- lieving that we can’t keep borrowing settle the question by granting prior ported in the State. As I mentioned, it money we don’t have. That is what the user rights but only when the prior use has burned an area roughly the size of American people keep telling us. That is for certain ‘‘commercial’’ uses. Connecticut. Nearly 2,900 structures is what the last election was all about. The prior user rights provided under have been lost and, unfortunately, That is what the financial markets are section 5 of H.R. 1249 will allow devel- there has also been a loss of life in telling us, and I believe the American opers of innovative technologies to these fires, as well as 5,000 Texans have people believe we have plenty of money keep internally used technologies in- now been evacuated from their homes. in the Federal Government for Con- house without publication in a patent. Unfortunately, these fires have been a gress to do its job by setting priorities This will help U.S. industry to keep feature of life in parts of Texas for and funding those priorities. jobs at home and provide a basis for re- most of the year because we are in the I believe emergency assistance to the storing and maintaining a technology middle of a historic drought where, be- people who have been hit hardest by competitive edge for the U.S. economy. cause of La Nina, the weather pattern, these natural disasters is one of those For these reasons, I believe the Senate we have had an abnormally dry year, priorities. We should fund it instead of should support this valuable addition and, indeed, it has caused more than $5 funding wasteful spending and duplica- to the America Invents Act and I ap- billion of agricultural losses alone as a tive programs and engaging in failed plaud the leadership of my friend from result of that drought. Keynesian stimulus schemes. Vermont. I have not only seen some of the dev- I yield the floor. Mr. LEAHY. I thank the Senator. astation myself before I left Austin, SECTION 5 Mr. BLUNT. However, as noted a mo- but I have also talked to a number of Mr. BLUNT. Madam President, a sig- ment ago, the utility of the prior user people on the ground who are well in- nificant change contained in H.R. 1249 defense is linked to its clarity sur- formed. from S. 23, the version of the bill de- rounding its scope and its limitations. Representative Tim Kleinschmidt, bated and overwhelmingly passed by Many innovative companies may be who represents the Texas district east the Senate earlier this year, is the in- reticent to opt for the protection of of Austin in sort of the Bastrop area, clusion of the defense of prior commer- prior user rights for fear that the de- told me that as many as 1,000 people cial use against infringement of a later fense may not stand against a charge have been evacuated from their homes granted patent. Specifically, section 5 of infringement by a later patent in that area and have been living in of H.R. 1249 creates a prior user right owner who sues for infringement. Many shelters since Sunday. Water and elec- for processes, or machines, or composi- innovators may feel the need to rush to

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I more than 1 year prior to the effective materials do qualify for the defense of do not need to belabor my colleagues filing date of a subsequent patent or prior user rights when there is evidence with the attendant benefit the publica- publication by a later inventor, the ini- of a commitment to put the innovation tion of patents provides to global com- tiation of continuous internal use in into use followed by a series of diligent petitors who are not respectful of intel- the manufacture of products should events demonstrating that the innova- lectual property rights. guarantee the defense of prior use. tion has been put into continuous— The reason for this detrimental reli- Mr. BLUNT. I thank my colleague. into a business activity with a purpose ance on patents for internal technology Let me illustrate by showing the im- of developing new products for the ben- is that the utility and reliability of pact of the ambivalence of the statu- efit of mankind. section 5 is dependent on the prior use tory language on agricultural research Mr. BLUNT. I thank my colleague. being an ‘‘internal commercial use’’—a which is a major industry not only in SECTION 5 term for which there is no readily Midwestern States like Missouri, Iowa, Mr. KOHL. Madam President, I have available judicial precedent. Should Kansas, Nebraska, Illinois, but in long supported reforming our patent section 5 of H.R. 1249 become law, an States ranging from California to Con- system and was pleased with the bill innovator and his legal counsel need necticut from Texas to Minnesota from the Senate passed in March. It was not some reasonable assurance that an in- North Carolina to Idaho. Virtually what everyone wanted, but it was an ternal use will, in fact, be deemed to be every State in this Union has an in- effective compromise that would spur a commercial use protectable under vestment in agricultural research. The innovation and economic growth. I am the law. These assurances are all the productivity of U.S. farmers provides a disappointed with changes the House more important for U.S. companies in significant positive input to the U.S. made to the bill, specifically the ex- the biotechnology field with extraor- balance of trade due in large part to pansion of the ‘‘prior user rights’’ de- dinarily long lead times for commer- the high technology adopted by U.S. fense a provision which raises serious cialization of its products. Does my farmers. That high technology is pro- concerns for the University of Wiscon- colleague from Vermont understand vided from multiple sources ranging sin’s patent licensing organization which fosters innovative discoveries, the concern I am raising? from research at land grant univer- Mr. LEAHY. Madam President, I will spawning dozens of small businesses sities, the USDA and private for-profit say to my good friend that he is not and spurring economic growth in Wis- companies all of whom have internal the first to raise this issue with me and consin. technology that provides a competitive the other Members of the House and Let me explain why. A patent grants edge for maintaining agricultural com- Senate Judiciary Committees who have an innovator the right to exclude oth- petitive advantage for the U.S. econ- worked on this bill. I have discussed ers from using an invention in ex- omy. section 5 at length with the distin- change for making that invention pub- To specifically illustrate let us con- guished House Judiciary Committee lic. The publication of patents and the sider that U.S. researchers are leading Chairman LAMAR SMITH. Perhaps I can research behind them advance further the world in discovering genetic mark- help provide some of the needed clarity innovation and discovery. Anyone who ers that are associated with important for my colleague concerning what we uses the invention without permission agronomic traits which serves as breed- intend to be within the confines of the is liable for infringement, and someone ing production tools. Instead of teach- definition of ‘‘internal commercial who was using the invention prior to ing foreign competitors these produc- use’’ as it is used in section 5 of the the patent has only a limited defense tion tools, a preferred alternative may bill. for infringement. The purpose of lim- Mr. BLUNT. I thank my colleague for be to rely on prior user rights for such iting this defense to infringement is to his willingness to discuss this matter innovative crop breeding technology encourage publication and disclosure of here on the floor of the Senate. It is which is used in the manufacture of inventions to foster innovation. So by my reading of the bill’s language under new plant varieties although the use expanding the prior user defense we section 5 that prior use rights shall may only occur once a year after each run the real risk of discouraging disclo- vest when innovative technology is growing season and for many years to sure through the patent system. This is first put into continuous internal use selectively manufacture a perfected concerning to the University of Wis- in the business of the enterprise with crop product that is sold. consin because they depend on publica- the objective of developing As another example let us consider tion and disclosure to further research commercializable products. Does the an innovation in making potential new and innovation. chairman of the Judiciary Committee genetically modified products all of I appreciate the inclusion of a carve- share this understanding? which need years of testing to verify out to the prior user rights defense pro- Mr. LEAHY. Yes. My colleague and I their viability, repeatabilty and com- vision so that it does not apply to pat- are in agreement that it is our inten- mercial value. Of the thousands of new ents owned by a university ‘‘or a tech- tion, as the sponsors of this com- potential prototype products made, nology transfer organization whose pri- prehensive measure, that the prior use only a few may survive initial screen- mary purpose is to facilitate the com- right set forth in section 5 of H.R. 1249 ing to begin years of field trials. We mercialization of technologies devel- shall vest when innovative technology should agree that a continuously used oped by one or more such institutions is first put into continuous internal process qualifies as internal commer- of higher education.’’ However, I have use in the business of an innovator’s cial use despite the fact that many pro- some concerns about how the carve out enterprise with the objective of mak- totypes will fail to have commercial will work in practice and I would like ing a commercializable product. merit. to clarify its application. Mr. BLUNT. I thank my colleague As my examples illustrate, for sec- It is my understanding that the term from Vermont. If he would permit me tion 5 to have its intended benefit, in- ‘‘primary purpose’’ in this exception is to clarify this matter further. Am I ternal commercial use must vest when intended to be consistent with and correct in understanding that, so long an innovator reduces technology to have a similar scope as the ‘‘primary as that use begins more than 1 year practice and takes diligent steps to functions’’ language in the Bayh-Dole prior to the effective filing date of a maintain continuous, regular commer- Act. In particular, if a nonprofit entity subsequent patent or publication by a cial use of the technology in manufac- is entitled to receive assignment of in- later inventor, the initiation of contin- turing operations of the enterprise. ventions pursuant to section 207(c)(7) of uous internal use by an original inno- Mr. LEAHY. My colleague is correct title 35 because one of its primary func- vator in a manufacturing of a product in his reasoning and his understanding tions is the management of inventions, should guarantee the defense of prior of what is intended by section 5. The presumably it falls under the primary use regardless of whether the product methods used by Edison in producing purpose prong of the prior user rights is a prototype with a need for quality multiple failures for electric light exception. Is that the Senator’s under- improvements? bulbs were no less commercial uses be- standing of the provision? Mr. LEAHY. I thank my colleague fore the ultimate production of a com- Mr LEAHY. The senior Senator from for the question. His understanding is mercially successful light bulb. Let us Wisconsin is correct. That is also my

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I would like to ask my shielded from abuse than the reexam- count, sort, and authenticate currency colleague from Vermont, the Chairman ination proceedings have been. In fact, and paper instruments. Are these the of the Judiciary Committee and lead the new higher standard for post types of patents that are the target of sponsor of the America Invents Act be- issuance review was created to make it Section 18? fore us today, to further clarify an even more difficult for these proce- Mr. SCHUMER. No. Patent holders issue relating to Section 18 of that leg- dures to be used as tools for harass- who have generated productive inven- islation. Ideally, I would have liked to ment. Therefore, the rule that bars the tions and have provided large numbers modify the Section 18 process in ac- PTO from reconsidering issues pre- of American workers with good jobs cordance with the Cantwell amend- viously considered during examination through the development and commer- ment. It is of crucial importance to me or in an earlier reexamination still ap- cialization of those patents are not the that we clarify the intent of the proc- plies. While a prior district court deci- ones that have created the business ess and implement it as narrowly as sion upholding the validity of a patent method patent problem. While merely possible. may not preclude the PTO from consid- having employees and conducting busi- As I understand it, Section 18 is in- ering the same issues resolved in that ness would not disqualify a patent- tended to enable the PTO to weed out proceeding, PTO officials must still holder from Section 18 review, gen- improperly issued patents for abstract consider the court’s decision and devi- erally speaking, it is not the under- methods of doing business. Conversely, ate from its findings only to the extent standing of Congress that such patents I understand that Section 18 is not in- reasonable. As a result, I expect the would be reviewed and invalidated tended to allow owners of valid patents USPTO would not initiate proceedings under Section 18. to be harassed or subjected to the sub- where the petition does not raise a sub- Mr. COBURN. Madam President, stantial cost and uncertainty of the stantial new question of patentability today, I rise to discuss section 18 of untested review process established than those that had already been con- H.R. 1249, the Leahy-Smith America therein. Yet I have heard concerns that sidered by the USPTO in earlier pro- Invents Act. Consistent with the state- Section 18 would allow just such har- ceedings. Does that answer my col- ment in the RECORD by Chairman assment because it enables review of league’s question?’’ LAMAR SMITH on June 23, 2011, I under- patents whose claims have been found Mr. PRYOR. I thank my colleague stand that section 18 will not make all valid both through previous reexamina- for that explanation. business method patents subject to re- tions by the PTO and jury trials. In my SECTION 18 view by the U.S. Patent and Trade- mind, patent claims that have with- Mr. DURBIN. I would like to clarify mark Office. Rather, section 18 is de- stood multiple administrative and judi- an issue with my colleague from New signed to address the problem of low- ciary reviews should be considered pre- York, who is the author of Section 18. quality business method patents that sumptively valid. It would not only be Legislative history created during ear- are commonly associated with the Fed- unfair to the patent holder but would lier consideration of this legislation eral circuit’s 1998 State Street deci- be a waste of both PTO’s time and re- makes clear that the business method sion. I further understand that section sources to subject such presumptively patent problem that Section 18 is in- 18 of the bill specifically exempts ‘‘pat- valid patent claims to yet another ad- tended to address is fundamentally an ents for technological inventions’’ from ministrative review. It would be par- issue of patent quality. Does the Sen- this new review at USPTO. ticularly wasteful and injurious to le- ator agree that poor quality business Patents for technological inventions gitimate patent holders if the ‘‘transi- method patents generally do not arise are those patents whose novelty turns tional review’’ only considered prior from the operation of American compa- on a technological innovation over the art that was already considered in the nies who use business method patents prior art and are concerned with a previous administrative or judicial pro- to develop and sell products and em- technical problem which is solved with ceedings. Can the Chairman enlighten ploy American workers in doing so? a technical solution. The technological me as to how the PTO will ensure that Mr. SCHUMER. My friend from Illi- innovation exception does not exclude the ‘‘transitional process’’ does not be- nois is correct. I have previously in- a patent from section 18 simply be- come a tool to harass owners of valid serted into the RECORD a March 3 letter cause it recites technology. Inventions patents that have survived multiple ad- from the Independent Community related to manufacturing and machines ministrative and judicial reviews’’? Bankers of America which stated that that do not simply use known tech- Mr. LEAHY. The proceeding created ‘‘Under the current system, business nology to accomplish a novel business by Section 18 is modeled on the pro- method patents of questionable quality process would be excluded from review posed post-grant review proceeding are used to force community banks to under section 18. under Section 6 of the Act. As in other pay meritless settlements to entities For example, section 18 would not post-grant proceedings, the claims that may have patents assigned to cover patents related to the manufac- should typically be evaluated to deter- them, but who have invented nothing, ture and distribution of machinery to mine whether they, among other offer no product or service and employ count, sort, and authenticate currency. things, meet the enablement and writ- no one. . . . The Schumer-Kyl amend- It is the intention of section 18 to not ten description requirements of the ment is critical to stopping this eco- review mechanical inventions related act, and contain patentable subject nomic harm.’’ to the manufacture and distribution of matter under the standards defined in Mr. DURBIN. I thank the Senator. I machinery to count, sort, and authen- the statutes, case law, and as explained want to point out that there are a ticate currency like change sorters and in relevant USPTO guidance. While the number of examples of companies that machines that scan paper instruments, program will generally otherwise func- employ hundreds or thousands of including currency, whose novelty tion on the same terms as other post- American workers in developing and turns on a technological innovation grant proceedings, the USPTO should commercializing financial sector prod- over the prior art. These types of pat- implement Section 18 in a manner that ucts that are based on business method ents would not be eligible for review avoids attempts to use the transitional patents. For example, some companies under this program. program against patent owners in a that possess patents categorized by the American innovation is an important harassing way. Specifically, to initiate PTO as class 705 business method pat- engine for job growth and our economic a post issuance review under the new ents have used the patents to develop revitalization. To this end, the timely post grant or transitional proceedings, novel software tools and graphical user consideration of patent applications it is not enough that the request show interfaces that have been widely com- and the issuance of quality patents are a substantial new question of patent- mercialized and used within the elec- critical components and should remain

VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.040 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5429 the primary goal of the U.S. Patent court subsequently found, however, partes reexamination. And in light of and Trademark Office. that a common question existed and the present bill’s enhanced estoppels, it Mr. KYL. Madam President, I rise ordered the defendants’ cases consoli- is important that the section 315(b) today to say a few words about aspects dated for trial. deadline afford defendants a reasonable of the present bill that differ from the That these cases are not just outliers opportunity to identify and understand bill that passed the Senate in March. I is confirmed by Federal Practice and the patent claims that are relevant to commented at length on the Senate Procedure, which comments as follows the litigation. It is thus appropriate to bill when that bill was before this at § 2382: extend the section 315(b) deadline to body. Since the present bill and the Although as a general proposition it is true one year. Senate bill are largely identical, I will that Rule 42(a) should be construed in har- The final bill also extends inter- not repeat what I said previously, but mony with the other civil rules, it would be vening rights to inter partes and post- will simply refer to my previous re- a mistake to assume that the standard for grant review. The bill does not allow marks, at 157 Cong. Rec. 1368–80, daily consolidation is the same as that governing new matter to be introduced to support the original joinder of parties or claims. . . . claims in IPR and PGR and does not ed. March 8, 2011, which obviously [M]ore than one party can be joined on a side apply to the present bill as well. under Rule 20(a) only if there is asserted on allow broadening of claims in those As I mentioned earlier, Mr. SMITH ne- behalf of or against all of them one or more proceedings. The aspect of intervening gotiated his bill with Senators LEAHY, claims for relief arising out of the same rights that is relevant to IPR and PGR GRASSLEY, and me as he moved the bill transaction or occurrence or series of trans- is section 252, first paragraph, which through the House of Representatives. actions or occurrences. This is in addition to provides that damages accrue only The final House bill thus represents a the requirement that there be some question from the date of the conclusion of re- compromise, one which the Senate sup- of law or fact common to all the parties. But view if claim scope has been sub- the existence of a common question by itself porters of patent reform have agreed to stantively altered in the proceeding. is enough to permit consolidation under Rule This restriction applies even if the support in the Senate. The provisions 42(a), even if the claims arise out of inde- that Mr. SMITH has added to the bill pendent transactions. amendment only narrowed the scope of the claims. See Engineered Data Prod- are ones that we have all had an oppor- If a court that was barred from join- ucts, Inc. v. GBS Corp., 506 F.Supp.2d tunity to consider and discuss, and ing defendants in one action could in- which I fully support. 461, 467 (D. Colo. 2007), which notes that stead simply consolidate their cases for ‘‘the Federal Circuit has routinely ap- Section 19(d) of the present bill adds trial under rule 42, section 299’s pur- a new section 299 to title 35. This new plied the intervening rights defense to pose of allowing unrelated patent de- narrowing amendments.’’ When patent- section bars joinder of accused infring- fendants to insist on being tried sepa- ers as codefendants, or consolidation of defeating prior art is discovered, it is rately would be undermined. Section often impossible to predict whether their cases for trial, if the only com- 299 thus adopts a common standard for mon fact and transaction among the that prior art will be found to render both joinder of defendants and consoli- the entire invention obvious, or will defendants is that they are alleged to dation of their cases for trial. only require a narrowing amendment. have infringed the same patent. This Another set of changes made by the When a challenger has discovered such provision effectively codifies current House bill concerns the coordination of prior art, and wants to practice the in- law as it has been applied everywhere inter partes and postgrant review with vention, intervening rights protect him outside of the Eastern District of civil litigation. The Senate bill, at pro- against the risk of gong forward—pro- Texas. See Rudd v. Lux Products Corp., posed sections 315(a) and 325(a), would vided, of course, that he is correct in 2011 WL 148052. (N.D. Ill. January 12, have barred a party or his real party in his judgment that the prior art at least 2011), and the committee report for this interest from seeking or maintaining requires a substantive narrowing of bill at pages 54 through 55. an inter partes or postgrant review claims. H.R. 1249 as introduced applied only after he has filed a declaratory-judg- The final bill also adds a new sub- to joinder of defendants in one action. ment action challenging the validity of section to proposed section 257, which As amended in the mark up and in the the patent. The final bill will still bar authorizes supplemental examination floor managers’ amendment, the bill seeking IPR or PGR after a declara- of patents. The new subsection pro- extends the limit on joinder to also bar tory-judgment action has been filed, vides that the Director shall refer to consolidation of trials of separate ac- but will allow a declaratory-judgment the U.S. Attorney General any ‘‘mate- tions. When this change was first pro- action to be filed on the same day or rial fraud’’ on the Office that is discov- posed, I was skeptical that it was nec- after the petition for IPR or PGR was ered during the course of a essary. A review of legal authority, filed. Such a declaratory-judgment ac- Supplemental Examination. Chairman however, reveals that under current tion, however, will be automatically Smith’s explanation of this addition, at law, even if parties cannot be joined as stayed by the court unless the patent 157 Cong. Rec. E1182–83 (daily ed. June defendants under rule 20, their cases owner countersues for infringement. 23, 2011), clarifies the purpose and ef- can still be consolidated for trial under The purpose of allowing the declara- fect of this new provision. In light of rule 42. For example, as the district tory-judgment action to be filed is to his remarks, I find the addition court held in Ohio v. Louis Trauth allow the accused infringer to file the unobjectionable. I would simply add to Dairy, Inc., 163 F.R.D. 500, 503 (S.D. first action and thus be presumptively the Chairman’s remarks that, in evalu- Ohio 1995), ‘‘[e]ven when actions are entitled to his choice of venue. ating whether a fraud is ‘‘material’’ for improperly joined, it is sometimes The House bill also extends the dead- purpose of referral, the Director should proper to consolidate them for trial.’’ line for allowing an accused infringer look to the Federal Circuit’s decision The same conclusion was reached by to seek inter partes review after he has in Therasense, Inc. v. Becton, Dickinson the court in Kenvin v. Newburger, Loeb been sued for infringement. The Senate and Co., llF.3dll, 2011 WL 2028255 & Co., 37 F.R.D. 473 (S.D.N.Y. 1965), bill imposed a 6-month deadline on (May 25, 2011). That case holds, in rel- which ordered severance because of seeking IPR after the patent owner has evant part, that: misjoinder of parties, concluding that filed an action for infringement. The [T]he materiality required to establish in- the claims against the defendants did final bill extends this deadline, at pro- equitable conduct is but-for materiality. not arise out of single transaction or posed section 315(b), to 1 year. High- When an applicant fails to disclose prior art occurrence, but then suggested the de- technology companies, in particular, to the PTO, that prior art is but-for material sirability of a joint trial, and expressly have noted that they are often sued by if the PTO would not have allowed a claim had it been aware of the undisclosed prior made its severance order without prej- defendants asserting multiple patents art. Hence, in assessing the materiality of a udice to a subsequent motion for con- with large numbers of vague claims, withheld reference, the court must deter- solidation under rule 42(a). Similarly, making it difficult to determine in the mine whether the PTO would have allowed in Stanford v. TVA, 18 F.R.D. 152 (M.D. first few months of the litigation which the claim if it had been aware of the undis- Tenn. 1955), a court found that the de- claims will be relevant and how those closed reference. fendants had been misjoined, since the claims are alleged to read on the de- Finally, perhaps the most important claims arose out of independent trans- fendant’s products. Current law im- change that the House of Representa- actions, and ordered them severed. The poses no deadline on seeking inter tives has made to the America Invents

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.002 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5430 CONGRESSIONAL RECORD — SENATE September 8, 2011 Act is the addition of a prior-commer- The prior-commercial-use defense ties to later recharacterize their past cial-use defense. Current law, at sec- provides relief to U.S. manufacturers efforts as capturing or diligently im- tion 273, creates a defense of prior-user from this Catch-22, allowing them to plementing the successful researcher’s rights that applies only with respect to make long-term use of a manufac- invention. Questions have also arisen business-method patents. The final bill turing process without having to give as to how tentative preparations may rewrites section 273, creating a PCU de- it away to competitors or run the risk be and still qualify as ‘‘substantial fense that applies to all utility patents. that it will be patented out from under preparations.’’ For example, if a com- University researchers and their them. pany had not broken ground for its fac- technology-transfer offices had earlier Subsection (a) expands the defense tory, but had commissioned an archi- objected to the creation of such a de- beyond just processes to also cover tect to draw up plans for it, would that fense. Their principal concern was that products that are used in a manufac- qualify? Would taking out a loan to the defense would lead to a morass of turing or other commercial process. build the factory qualify as substantial litigation over whether an infringer Generally, products that are sold to preparations? was entitled to assert it, and the ex- consumers will not need a PCU defense On the other hand, proof of concep- pense and burden of this litigation over the long term. As soon as the tion and diligent commercialization would ultimately prevent universities product is sold to the public, any in- are currently used to apply section and small companies from enforcing vention that is embodied or otherwise 102(g)(2), and I have not heard com- valid patents. The compromise reached inherent in that product becomes prior plaints that the current defense has re- in the House of Representatives ad- art and cannot be patented by another sulted in overly burdensome litigation. dresses university concerns by requir- party, or even by the maker of the In the end, however, a substantial- ing a defendant to show that he com- product after the grace period has ex- preparations predicate is not included mercially used the subject matter that pired. Some products, however, consist in this bill simply because that was the infringes the patent at least 1 year be- of tools or other devices that are used agreement that was struck between fore the patent owner either filed an only by the inventor inside his closed universities and industry in the House application or disclosed the invention factory. Others consist of substances of Representatives last summer, and to the public. The House compromise that are exhausted in a manufacturing we are now effectively limited to that also precludes assertion of the defense process and never become accessible to agreement. Perhaps this issue can be against most university-owned patents. the public. Such products will not be- further explored and revisited in a fu- The PCU defense is similar to the come prior art. Revised section 273 ture Congress, though I suspect that prior-user right that exists in the therefore allows the defense to be as- many members will want a respite United Kingdom and Germany. The de- serted with respect to such products. from patent issues after this bill is fense is a relatively narrow one. It does The defense can also be asserted for completed. not create a general license with re- products that are not used to make a The final bill also drops the require- spect to the patented invention, but useful end result that is sold to others, ment of a showing of a reduction to rather only allows the defendant to but that are used in an internal com- practice that previously appeared in keep making the infringing commer- mercial process. This would include, subsection (b)(1). This is because the cial use that he establishes that he for example, customized software that use of a process, or the use of product made 1 year before the patentee’s filing is used to run a company’s human-re- in a commercial process, will always or disclosure. The words ‘‘subject mat- sources system. So long as use of the constitute a reduction to practice. ter,’’ as used in subsection (a), refer to product is integrated into an ongoing One change made by the original the infringing acts of the defendant, commercial process, and not merely House bill that proved contentious is not to the entire patented invention. fleeting or experimental or incidental the expansion of the personal nature of An exception to this limit, which ex- to the enterprise’s operations, the PCU the defense, now at subsection (e)(1)(A), pands the defense beyond what would defense can be asserted with respect to to also include uses of the invention be allowed in the United Kingdom, ap- that product. made by contractors and vendors of the pears in subsection (e)(3), which allows The present bill requires the defend- person asserting the defense. The the defendant to increase the quantity ant to commercially use the invention House bill originally allowed the de- or volume of the use that he estab- in order to be able to assert the de- fendant to assert the defense if he per- lishes that he made of the invention. fense. Chairman SMITH has suggested, formed the commercial use or Subsection (e)(3) also confirms that the at 157 Cong. Rec. E1219 (daily ed. June ‘‘caused’’ its performance. The word defendant may improve or otherwise 28, 2011), that in the future Congress ‘‘caused,’’ however, could be read to in- modify his activities in ways that do should expand the defense so that it clude even those uses that a vendor not further infringe the patent, al- also applies when a company has made made without instructions or even the though one would think that this substantial preparations to commer- contemporaneous knowledge of the would go without saying. cially use an invention. Some have also person asserting the defense. The final The PCU defense is principally de- suggested that the defense should be bill uses the word ‘‘directed,’’ which signed to protect the use of manufac- expanded to cover not just using, but limits the provision only to those turing processes. For many manufac- also making and selling an invention if third-party commercial uses that the turing processes, the patent system substantial preparations have been defendant actually instructed the ven- presents a catch-22: if the manufac- made to manufacture the invention. dor or contactor to use. In analogous turer patents the process, he effec- This would expand the defense to more contexts, the word ‘‘directed’’ has been tively discloses it to the world. But fully compensate for the repeal of cur- understood to require evidence that the patents for processes that are used in rent section 102(g), which allows a defendant affirmatively directed the closed factories are difficult to police. party to invalidate a patent asserted vendor or contractor in the manner of It is all but impossible to know if against it if the party can show that it the work or use of the product. See, for someone in a factory in China is in- had conceived of the invention earlier example, Ortega v. Puccia, 75 A.D. 54, 59, fringing such a patent. As a result, un- and diligently proceeded to commer- 866 N.Y.S.2d 323, 328 (N.Y. App. 2008). scrupulous foreign and domestic manu- cialize it. Subsection (e)(1)(A)’s reference to en- facturers will simply use the invention On the one hand, universities and tities that ‘‘control, are controlled by, in secret without paying licensing fees. others have expressed concern that a or under common control with’’ the de- Patenting such manufacturing proc- ‘‘substantial preparations’’ predicate fendant borrows a term that is used in esses effectively amounts to giving for asserting the PCU defense would several federal statutes. See 12 U.S.C. away the invention to competitors. On lead to expensive and burdensome liti- 1841(k), involving bank holding compa- the other hand, if the U.S. manufac- gation over whether a company’s ac- nies, 15 U.S.C. 78c(a)(4)(B)(vi), involv- turer does not patent the process, a tivities reflect conception and diligent ing securities regulation, 15 U.S.C. subsequent party may obtain a patent commercialization of the invention. 6809(6), involving financial privacy, and for it, and the U.S. manufacture will be Some argue that it is often the case 49 U.S.C. 30106(d)(1), involving motor forced to stop using a process that he that different companies and research- vehicle safety. Black’s Law Dictionary was the first to invent and which he ers are working on the same problem, 378 (9th ed. 2009) defines ‘‘control’’ as has been using for years. and it is easy for the unsuccessful par- the ‘‘direct or indirect power to govern

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.033 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5431 the management and policies of a per- 9, 2011), and 157 Cong. Rec. H4429 (daily tion filed under the first-to-file system son or entity, whether through owner- ed. June 22, 2011). These two chairmen will be vulnerable to an attack that ship of securities, by contract, or oth- are the lead sponsors and authorizing the inventor failed to disclose the best erwise; the power or authority to man- chairmen of this year’s bills, which are mode of the invention. This is incor- age, direct, or oversee.’’ identical with respect to section 102. As rect. Section 15 of this bill precludes A few other aspects of the PCU de- Chairman SMITH most recently ex- the use of the best-mode requirement fense merit brief mention. Subsection plained in his June 22 remarks, ‘‘con- as a basis for cancelling a claim or (e)(5)(A), the university exception, was trary to current precedent, in order to holding it invalid. It was also sug- extended to also include university trigger the bar in new 102(a) in our leg- gested, at the same place in the record, technology-transfer organizations, islation, an action must make the pat- that discovery would not be allowed in such as the Wisconsin Alumni Research ented subject matter ‘available to the the derivation proceedings created by Foundation. Subparagraph (B), the ex- public’ before the effective filing date.’’ section 3(i) of the bill. That is incor- ception to the university exception, is Therefore, ‘‘[i]f an inventor’s action is rect. Section 24 of title 35 allows dis- only intended to preclude application such that it triggers one of the bars covery in any ‘‘contested case.’’ The of subparagraph (A) when the federal under 102(a), then it inherently triggers Patent Office’s regulations, at 37 CFR government is affirmatively prohib- the grace period in section 102(b).’’ 41.2(2), indicate that contested cases in- ited, whether by statute, regulation, or When the committee included the cluded Board proceedings such as inter- executive order, from funding research words ‘‘or otherwise available to the ferences. It is not apparent to me why in the activities in question. public’’ in section 102(a), the word these laws and regulations would sug- In the course of the recodification of ‘‘otherwise’’ made clear that the pre- gest anything other than that dis- former subsection (a)(2) as new (c)(2), ceding items are things that are of the covery will be allowed in derivation the former’s subparagraph (B) was same quality or nature. As a result, the proceedings. dropped because it is entirely redun- preceding events and things are limited Finally, let me close by commenting dant with subparagraph (A). to those that make the invention on section 18 of the bill. Some legiti- Finally, subsection (e)(4), barring as- ‘‘available to the public.’’ The public mate interests have expressed concern sertion of the defense if use of the sub- use or sale of an invention remains that non-business-method patents will ject matter has been abandoned, should prior art, thus making clear that an in- be subject to challenge in this pro- not be construed to necessarily require vention embodied in a product that has ceeding. I have been asked to, and am continuous use of the subject matter. been sold to the public more than a happy to, reiterate that technological It is in the nature of some subject mat- year before an application was filed, inventions are excluded from the scope ter that it will be used only periodi- for example, can no longer be patented. of the program, and that these techno- cally or seasonally. If such is the case, Once an invention has entered the pub- logical inventions include inventions and the subject has been so used, its lic domain, by any means, it can no in the natural sciences, engineering, use has not been abandoned. longer be withdrawn by anyone. But and computer operations—and that in- I would also like to take a moment public uses and sales are prior art only ventions in computer operations obvi- to once again address the question of if they make the invention available to ously include software inventions. the grace period created by this bill. the public. This does not mean that a patent is During the House and Senate debates In my own remarks last March, I ineligible for review simply because it on the bill, opponents of the first-to- cited judicial opinions that have con- recites software elements or has been file system have occasionally asserted strued comparable legislative language reduced to a software program. If that that they oppose the bill’s move to in the same way. Since that time, no were the case, then very few of even first to file because it weakens the opponent of the first-to-file transition the most notorious business-method grace period. See 157 Cong. Rec. S1094, has identified any caselaw that reads patents could be reviewed under sec- S1096, S1112 (daily ed. March 2, 2011), this legislative language any other tion 18. Rather, in order to fall within and 157 Cong. Rec. H4424, H4430 (daily way, nor am I aware of any such cases. the technological-invention exclusion, ed. June 22, 2011). I would hope that even those opponents the invention must be novel as soft- Some of these arguments are dif- of first to file who believe that sup- ware. If an invention recites software ficult to understand, in part because porters of the bill cannot rely on com- elements, but does not assert that it is opponents of first to file have used the mittee reports and sponsors’ state- novel as software, or does not colorably term ‘‘grace period’’ to mean different ments would at least concede that Con- appear to be so, then it is not ineligible things. Some have used the term to gress is entitled to rely on the con- for review simply because of that soft- mean the period between the time sistent judicial construction of legisla- ware element. But an actual software when the inventor conceives of the in- tive language. invention is a technological invention, vention and the time when he files a Finally, I would note that the inter- and is not subject to review under sec- full or even provisional application. pretation of 102 that some opponents tion 18. Obviously, if the ‘‘grace period’’ is de- appear to advance—that nondisclosing Mr. LEVIN. Madam President, I sup- fined as the first-to-invent system, uses and sales would remain prior art, port the America Invents Act. then the move to first to file elimi- and would fall outside the 102(b) grace Right now, as our economy struggles nates that version of the grace period. period—is utterly irrational. Why to recover, this legislation is needed to Others, however, have suggested that would Congress create a grace period help create jobs and keep our manufac- public uses, sales, or ‘‘trade secrets’’ that allows an invention that has been turers competitive. It will further will bar patenting under new section disclosed to the world in a printed pub- strengthen and expand the ability of 102(b), even if they consist of activities lication, or sold and used around the our universities to conduct research of the inventor during the year before world, for up to a year, to be with- and turn that research into innovative filing. drawn from the public domain and pat- products and processes that benefit This is not the case, and I hope that ented, but not allow an inventor to Michigan and our Nation. courts and executive officials inter- patent an invention that, by definition, Because of this legislation, we will be preting this act will not be misled by has not been made available to the able to see that boost up close in my arguments made by opponents of this public? Such an interpretation of sec- home State of Michigan, where a new part of the bill. The correct interpreta- tion 102 simply makes no sense, and satellite Patent and Trademark Office tion of section 102 and the grace period should be rejected for that reason will be established in Detroit. This of- is that which has been consistently ad- alone. fice will help modernize the patent sys- vanced in the 2007 and 2011 committee Let me also address two other tem and improve the efficiency of pat- reports for this bill, see Senate Report misstatements that have been made ent review and the hiring of patent ex- 110–259, page 9, and House Report 112– about the bill’s first-to-file system. In aminers. 98, page 43, as well as by both Chair- remarks appearing at 157 Cong. Rec. In addition, in an important victory man SMITH and Chairman LEAHY, see S1095 (daily ed. March 2, 2011), it was after years of effort to address the 157 Cong. Rec. S1496–97 (daily ed. March suggested that a provisional applica- problem, section 14 of the act finally

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.035 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5432 CONGRESSIONAL RECORD — SENATE September 8, 2011 bans tax patents, ending the troubling strued to target only those business refer specifically to banks or even to fi- practice of persons seeking patents for method patents that are unique to the nancial transactions. Rather, because tax avoidance strategies. financial services industry.’’ Mr. SHU- the patents apply to administration of Issuing such patents abuses the Tax STER’s interpretation is incorrect. a business transactions, such as finan- Code by granting what some could see Nothing in the America Invents Act cial transactions, they are eligible for as a government imprimatur of ap- limits use of section 18 to banks, insur- review under section. To meet this re- proval for dubious tax strategies, while ance companies or other members of quirement, the patent need not recite a at the same time penalizing taxpayers the financial services industry. Section specific financial product or service. seeking to use legitimate strategies. 18 does not restrict itself to being used Interestingly, Mr. SHUSTER’s own ac- The section makes it clear that patents by petitioners whose primary business tions suggest that his interpretation can still be issued for software that is financial products or services. Rath- does not conform to the plain meaning helps taxpayers prepare their tax re- er, it applies to patents that can apply of the statute. In addition to his state- turns, but that provision is intended to to financial products or services. Ac- ment, Mr. SHUSTER submitted an be narrowly construed and is not in- cordingly, the fact that a patent is amendment to the Rules Committee tended to authorize patents for busi- being used by a company that is not a that would exempt particular types of ness methods or financial management financial services company does not business-method patents from review software. disqualify the patent from section 18 under section 18. That amendment was The bill will put a halt to both new review. Conversely, given the statutory later withdrawn. Mr. SHUSTER’s subse- and pending tax patent applications. and regulatory limitations on the ac- quent statement in the RECORD appears Although it does not apply on its face tivities of financial services companies, to be an attempt to rewrite through to the 130-plus tax patents already if a patent is allegedly being used by a legislative history something that he granted, if someone tries to enforce one financial services company, the patent was unable to change by amendment. of those patents in court by demanding will qualify as a ‘‘covered business Moreover, the text of section 18 fur- that a taxpayer provide a fee before method patent.’’ ther demonstrates that section 18 is using it to reduce their taxes, I hope a The plain meaning of ‘‘financial not limited to patents exclusively uti- court will consider this bill’s language product or service’’ demonstrates that lized by the financial services industry. and policy determination when decid- section 18 is not limited to the finan- As originally adopted in the Senate, ing whether such efforts are consistent cial services industry. At its most subsection (a)(1)(B) only allowed a with public policy. basic, a financial product is an agree- party to file a section 18 petition if ei- This legislation is an important step ment between two parties stipulating ther that party or its real parties in in- forward and I urge my colleagues to movements of money or other consider- terest had been sued or accused of in- support it. ation now or in the future. Types of fi- fringement. In the House, this was ex- Mr. SCHUMER. Madam President, I nancial products include, but are not panded to also cover cases where a would like to clarify the record on a limited to: extending credit, servicing ‘‘privy’’ of the petitioner had been sued few points related to section 18 of the loans, activities related to extending or accused of infringement. A ‘‘privy’’ America Invents Act. Section 18, of and accepting credit, leasing of per- is a party that has a direct relationship which Senator KYL and I were the au- sonal or real property, real estate serv- to the petitioner with respect to the al- thors, relates to business method pat- ices, appraisals of real or personal legedly infringing product or service. ents. As the architect of this provision, property, deposit-taking activities, In this case, it effectively means cus- I would like to make crystal clear the selling, providing, issuing or accepting tomers of the petitioner. With the addi- intent of its language. stored value or payment instruments, tion of the word ‘‘privy,’’ a company It is important that the record re- check cashing, collection or proc- could seek a section 18 proceeding on flect the urgency of this provision. essing, financial data processing, ad- the basis that customers of the peti- Just today, while the Senate has been ministration and processing of bene- tioner had been sued for infringement. considering the America Invents Act, fits, financial fraud detection and pre- Thus, the addition of the ‘‘privy’’ lan- Data Treasury—the company which vention, financial advisory or manage- guage clearly demonstrates that sec- owns the notorious check imaging pat- ment consulting services, issuing, sell- tion 18 applies to patents that may be ents and which has already collected ing and trading financial instruments used by entities other than the finan- over half a billion dollars in settle- and other securities, insurance prod- cial services industry. ments—filed suit in the Eastern Dis- ucts and services, collecting, ana- The fact that a multitude of indus- trict of Texas against 22 additional de- lyzing, maintaining or providing con- tries will be able to make use of sec- fendants, primarily community banks. sumer report information or other ac- tion is evident by the broad based sup- These suits are over exactly the type of count information, asset management, port for the provision, including the patents that section 18 is designed to trust functions, annuities, securities U.S. Chamber of Commerce and the Na- address, and the fact that they con- brokerage, private placement services, tional Retail Federation, among many tinue to be filed highlights the urgency investment transactions, and related others. of signing this bill into law and setting support services. To be eligible for sec- Mr. KIRK. Madam President, I sup- up an administrative review program tion 18 review, the patent claims must port H.R. 1249, the Leahy-Smith Amer- at the PTO. only be broad enough to cover a finan- ica Invents Act, because this long-over- I would like to elucidate the intent cial product or service. due patent reform will spur innovation, behind the definition of business meth- The definition of ‘‘covered business create jobs and strengthen our econ- od patents. Other Members have at- method patent’’ also indicates that the omy. tempted to suggest a narrow reading of patent must relate to ‘‘performing data In particular, I am proud that this the definition, but these interpreta- processing or other operations used in legislation contains a provision I tions do not reflect the intent of Con- the practice, administration, or man- worked to include in the Senate com- gress or the drafters of section 18. For agement’’ of a financial product or panion, S.23, that would establish the example, in connection with the House service. This language makes it clear US Patent and Trademark Office Om- vote on the America Invent Act, H.R. that section 18 is intended to cover not budsman Program to assist small busi- 1249, Congressman SHUSTER submitted only patents claiming the financial nesses with their patent filing issues. a statement in the RECORD regarding product or service itself, but also pat- This Ombudsman Program will help the definition of a ‘‘covered business ents claiming activities that are finan- small firms navigate the bureaucracy method patent’’ in section 18. 157 Cong. cial in nature, incidental to a financial of the patent system. Small businesses Rec. H4497 (daily ed. June 23, 2011). activity or complementary to a finan- are the economic engine of our econ- In the statement, Mr. SHUSTER cial activity. Any business that sells or omy. According to the Small Business states: ‘‘I would like to place in the purchases goods or services ‘‘practices’’ Administration, these companies em- record my understanding that the defi- or ‘‘administers’’ a financial service by ploy just over half of all private sector nition of ‘covered business method pat- conducting such transactions. Even the employees and create over fifty percent ent’ . . . is intended to be narrowly con- notorious ‘‘Ballard patents’’ do not of our nonfarm GDP. Illinois alone is

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.054 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5433 home to over 258,000 small employers by the House. I voted in support of an rency. It is the intention of Section 18 to not and more than 885,000 self-employers. amendment that sought to strike Sec- review mechanical inventions related to the Small businesses are also helping to tion 37, which the House had added to manufacture and distribution of machinery lead the way on American innovation. the bill. This section unnecessarily to count, sort and authenticate currency like change sorters and machines that scan These firms produce thirteen times interferes with a matter that is cur- currency whose novelty turns on a techno- more patents per employee than large rently being considered on appeal in logical innovation over the prior art. These patenting firms, and their patents are the federal courts. I also voted reluc- types of patents would not be eligible for re- twice as likely to be the most cited tantly to table an amendment to re- view under this program. among all patents. Small business store the Senate-passed language re- I agree with Chairman SMITH, and breakthroughs led to the development garding funding of the Patent and would note again that vibrant and job- of airplanes, FM radio and the personal Trademark Office. I supported the ta- creating industries have developed computer. It is vital that these bling motion because of the significant around the types of mechanical inven- innovators spend their time developing risk that the bill would fail if the Sen- tions he describes that deal with the new products and processes that will ate sent it back to the House with that counting, sorting, authentication and build our future, not wading through amendment included. It is unfortunate scanning of currency and paper instru- government red tape. that disagreement between the House ments. I am confident that the PTO However, I vote for this legislation and Senate has prevented the PTO will keep this in mind as it works to with the understanding that Section funding issue from being more clearly craft regulations implementing the 18, which establishes a review process resolved in the current legislation, and technological invention exception to for business-method patents, is not too I believe Congress must work dili- section 18. I also expect the PTO to broadly interpreted to cover patents on gently in the future to ensure PTO has keep in mind as it crafts these regula- tangible products that claim novel and the funding and resources it needs to tions Congress’s understanding that le- non-obvious software tools used to exe- effectively carry out its mission. gitimate and job-creating techno- cute business methods. H.R. 1249 seeks I also voted against an amendment logical patents such as those pro- to strengthen our patent system in relating to section 18 of the bill which tecting the novel electronic trading order to incentivize and protect our in- creates a transitional review process software tools and graphical user inter- ventors so that Americans can grow for certain business method patents. I faces discussed above are not the tar- our economy and bolster our global cast this vote after receiving assur- get of section 18. competiveness. Thus, it would defy the ances from my colleagues that the Overall, I am pleased that the Con- purpose of this bill if its authority scope and application of section 18 gress has passed patent reform legisla- were used to threaten the viable pat- would be appropriately constrained, as tion with strong bipartisan support and ents held by companies that employ it is critically important that this sec- has sent the legislation to the Presi- hundreds of Americans by commer- tion not be applied in a way that would dent’s desk. It has been a long time in cializing software products they de- undermine the legislation’s focus on the making, and I again want to con- velop and engineer. protecting legitimate innovation and gratulate Chairman LEAHY for his lead- Our Founding Fathers recognized the job creation. ership and hard work on this issue. importance of a strong patent system. I want to note specifically that there The PRESIDING OFFICER. The Sen- I am proud to support H.R. 1249, which are companies in many states, includ- ator from Iowa has 5 minutes. will provide strong intellectual prop- ing my state of Illinois, that employ Mr. GRASSLEY. Madam President, I erty rights to further our technological large numbers of American workers in urge my colleagues to oppose all three advancement. bringing to market legitimate, novel amendments to the patent bill so we Mr. DURBIN. Madam President, I and non-obvious products that are can send this important jobs bill to the rise to speak about the Leahy-Smith based on and protected by business President of the United States for his America Invents Act. This is bipartisan method patents. Examples of such pat- signature. legislation that will enhance and pro- ent-protected products include machin- I then urge my colleagues to support tect innovation in our country. I want ery that counts, sorts or authenticates final passage of the Leahy-Smith to commend Senator LEAHY, the chair- currency and paper instruments, and America Invents Act. This is a strong man of the Judiciary Committee, for novel software tools and graphical user bipartisan bill that will enhance Amer- his leadership and tireless work on this interfaces that are used by electronic ica’s innovation and give us economic bill. I also want to commend my Re- trading industry workers to implement growth. It will protect inventors’ publican colleagues on the Judiciary trading or asset allocation strategies. rights and improve transparency and Committee, particularly Senators Vibrant industries have developed third-party participation in the patent GRASSLEY, KYL, and HATCH, who have around the production and sale of these review process. It will strengthen pat- worked diligently with Chairman tangible inventions, and I appreciate ent quality and reduce costs and will LEAHY in this effort to reform our pat- that patents protecting such job-cre- curb litigation abuses and improve cer- ent system. ating products are not understood to be tainty for investors and innovators. In this country, if you have a good the target of section 18. The Leahy-Smith America Invents idea for a new and useful product, you I also note that there is an exemp- Act will also help small entities with can get a patent and turn that idea tion in section 18 for patents for tech- their patent applications and provide into a thriving business. Millions of nological inventions. House Judiciary for reduced fees for micro entities and good American jobs are created in this Chairman SMITH provided useful clari- small businesses. It will help compa- way. The goals of today’s legislation fication with respect to the scope of nies do business more efficiently both are to improve the operations of the that exemption in the June 23, 2011, here and abroad. Patent and Trademark Office and to RECORD, stating that: The bill includes a provision that will help inventors in this country better prevent patents from being issued on Patents for technological inventions are protect their investments in innova- those patents whose novelty turns on a tech- claims of tax strategies. These strate- tion. By protecting innovations, we nological innovation over the prior art and gies can add unwarranted fees on tax- will help grow our economy and help are concerned with a technical problem payers for attempting to comply with businesses create jobs for American which is solved with a technical solution. the Tax Code. workers. The technological innovation exception does Finally, the bill will enhance the op- I regret that after the Senate passed not exclude a patent simply because it re- erations of the Patent and Trademark a version of this legislation in March in cites technology. Inventions related to man- Office with administrative reforms, a broadly bipartisan vote of 95–5, the ufacturing and machines that do not simply give the Patent and Trademark Office House of Representatives modified the use known technology to accomplish a novel fee-setting authority which we hope business process would be excluded from re- Senate-passed legislation. Not all of view under Section 18. will then lead to a reduction of backlog those changes improved the bill. Section 18 would not cover patents related and improve the ability of the Patent Today, we voted on several amend- to the manufacture and distribution of ma- and Trademark Office to manage its af- ments that responded to changes made chinery to count, sort, and authenticate cur- fairs.

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.038 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5434 CONGRESSIONAL RECORD — SENATE September 8, 2011 I thank Chairman LEAHY and Senator In a few moments the Senate is going problems of the patent office. H.R. 1249, like HATCH, the lead sponsors of this legis- to have the opportunity to make sig- S. 23, is an excellent bill. These bills are the lation, for the tremendous amount of nificant reforms to our Nation’s patent product of many years of skillful and dif- ficult legislative work in both the House and work they put into this America In- system for the first time in more than the Senate. We believe the time has now vents Act, not only for this Congress half a century. come for the Senate to take the final legisla- but over the past 3 to 4 years that this The America Invents Act is the prod- tive act required for enactment of these his- bill has been worked on. This has been uct of extensive consideration. We have toric reforms. a long process spanning those several worked on this for four Congresses. We Sincerely, Congresses, and without the leadership have had dozens of hearings, weeks of GARY L. GRISWOLD. of these two Senators on patent reform committee debate, and I have lost we wouldn’t be ready to cross the fin- count of the hundreds of other meet- COALITION FOR PATENT FAIRNESS, June 27, 2011. ish line today. ings we have had. This bill is an oppor- Hon. PATRICK J. LEAHY, In addition, I thank the staff of the tunity to show the American people Chairman, U.S. Senate, Committee on the Judi- Judiciary Committee: Bruce Cohen, that Democrats and Republicans can ciary, Washington, DC. Aaron Cooper, Curtis LeGeyt of Chair- come together to enact meaningful leg- Hon. CHARLES E. GRASSLEY, man LEAHY’s staff, Matt Sandgren of islation for the American people. The Ranking Member, Committee on the Judiciary, Senator HATCH’s staff, and Joe Matal of time to do that is now. Washington, DC. Senator KYL’s staff. I would like to The only remaining issues that stand DEAR CHAIRMAN LEAHY AND RANKING MEM- thank the floor staff for their help in in the way of this long overdue reform BER GRASSLEY: After years of effort, both houses of Congress have now successfully processing this bill in an efficient man- are three amendments. Each of them passed patent reform by impressive margins. ner, and I would like to especially carries some merit. In the past, I might On behalf of the high tech community, we thank Kolan Davis and Rita Lari have supported them. But this is a congratulate you, as well as your House col- Jochum of my staff for their hard work compromise. No one Senator can have leagues, on this achievement. on the bill. everything he or she may want. The Coalition for Patent Fairness supports So for a third time I urge my col- The underlying issues have been de- Senate acceptance of H.R. 1249 as passed by leagues to vote for the Leahy-Smith bated. The bill as written represents a the House. While neither bill is as we would bipartisan, bicameral agreement that have written it, we believe that the House America Invents Act and to oppose the passed bill represents the best opportunity three amendments we are going to be should be passed without changes. Any to improve the patent system at the present voting on so we can keep the bill clean amendment to this bill risks killing it. time. We are also quite aware that House and send it to the President without I would urge all Senators, Repub- leaders worked very hard to take into ac- delay. licans and Democrats alike, to join me count the views of the Senate during their Senator LEAHY has made it very and join Senator GRASSLEY in opposing deliberations. clear to all 100 Senators that, if we sup- these amendments. They are the final H.R. 1249, as passed, offers us a chance of port this bill, it is a gamble to say it hurdles standing in the way of com- consensus and we believe it should be passed and signed into law. We are looking forward will be law if we have to move it be- prehensive patent reform. I ask unanimous consent to have to advancing other policy matters that boost yond the Senate to the House. This bill innovation and growth in this country. will help American inventors create in- printed in the RECORD letters from Sincerely, novative new products and services and businesses and workers representing COALITION FOR PATENT FAIRNESS. stimulate job creation. The bill will the spectrum of American industry and upgrade and strengthen our patent sys- labor urging the Senate to pass the CHAMBER OF COMMERCE OF THE tem and keep America competitive in America Invents Act without amend- UNITED STATES OF AMERICA, Washington, DC, September 6, 2011. an increasingly global economy. This is ment. There being no objection, the mate- TO THE MEMBERS OF THE UNITED STATES a good bill, and I urge all of my col- SENATE: The U.S. Chamber of Commerce, the leagues to support it. rial was ordered to be printed in the world’s largest business federation rep- Madam President, how much time do RECORD, as follows: resenting the interests of more than three I have? THE COALITION FOR 21ST CENTURY million businesses and organizations of every The PRESIDING OFFICER. There is PATENT REFORM. size, sector, and region, strongly supports 1 minute remaining. Hon. PATRICK J. LEAHY, H.R. 1249, the ‘‘America Invents Act,’’ which Mr. GRASSLEY. I would urge my Chairman, Committee on the Judiciary, Wash- would encourage innovation and bolster the colleagues—because I rebut Senator ington, DC. U.S. economy. The Chamber believes this Hon. CHARLES E. ‘‘CHUCK’’ GRASSLEY, legislation is crucial for American economic SESSIONS’ amendment—to keep in mind Ranking Member, Committee on the Judiciary, growth, jobs, and the future of U.S. competi- that when somebody tells us this is to Washington, DC. tiveness. bail out one company, understand that DEAR CHAIRMAN LEAHY AND RANKING MEM- A key component of H.R. 1249 is section 22, one company has gotten justice from BER GRASSLEY: We urge you to work with the which would help ensure that fees collected the judicial branch of our government leadership of the Senate to bring H.R. 1249 to by the U.S. Patent and Trademark Office because a judge has said for that com- the Senate floor as soon the Senate’s sched- (PTO) fund the office and its administration pany that they were denied their rights ule might permit and pass the bill as is. of the patent system. PTO faces significant Our Coalition believes that this legislation challenges, including a massive backlog of under the 60-day rule to file for an ex- will fully modernize our patent laws. Indeed, pending applications, and this backlog is sti- tension of patent. So what that judge it will give the world the first truly 21st cen- fling domestic innovators. The fees that PTO said was bureaucrats in our agencies tury patent law—creating patentability collects to review and approve patent appli- acted in an arbitrary and capricious standards that are transparent, objective, cations should be dedicated to PTO oper- manner by not having the same rules predictable and simple in their application. ation. However, fee diversion by Congress that designate when the 60-day period It will enhance the inventor-friendly and col- has hampered PTO’s efforts to hire and re- of time starts. laboration-friendly features of our existing tain a sufficient number of qualified exam- So we have a judge that says so, so patent law. At the same time, it will in- iners and implement technological improve- crease public participation in the patenting ments necessary to ensure expeditious maybe people can refer to that opinion process, while maintaining strong protec- issuance of high quality patents. Though the and get what they want. But we ought tions for inventors in the provisions that do PTO funding compromise embodied in the to have it in the statute of what is uni- so. House-passed bill could be strengthened to form, and that is what the bill does, The agreement reached in the House on match the fee diversion provision originally and the Sessions amendment would USPTO funding will assure that the fees paid passed by the Senate, as crafted, Section 22 strike that. to the USPTO by inventors will not be di- represents a meaningful step toward ensur- I yield the floor. verted and will be made available to the Of- ing that PTO has better access to the user The PRESIDING OFFICER. The Sen- fice for processing patent applications and fees it collects, and would better allow the other important functions of the Office. ator from Vermont has the remainder agency to address the current backlog of 1.2 While we would have preferred the Senate’s million applications waiting for a final de- of the time until 4 p.m. approach in S. 23 to prevent diversion of termination and pendency time of three Mr. LEAHY. Madam President, I USPTO funds, we believe that acceptance of years, as well as to improve patent quality. thank the distinguished Senator from the House bill provides an effective and the In addition, the legislation would help en- Iowa for his strong support of this bill. most immediate path forward to address sure that the U.S. remains at the forefront of

VerDate Mar 15 2010 05:36 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.052 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5435 innovation by enhancing the PTO process getting the economy moving again and I Over the past few months, my enthusiasm and ensuring that all inventors secure the urge its enactment. and belief in the legislative process has exclusive right to their inventions and dis- Sincerely, grown as I have participated in the debate coveries. The bill shifts the U.S. to a first-in- LEO W. GERARD, over patent reform. I believe that this legis- ventor-to-file system that the Chamber be- International President. lation will fully modernize our patent laws. lieves is both constitutional and wise, ending It will give independent inventors and entre- expensive interference proceedings. H.R. 1249 JUNE 27, 2011. preneurs the speed and certainty necessary also contains important legal reforms that Hon. PATRICK LEAHY, to go out and commercialize their inven- would help reduce unnecessary litigation Chairman, Senate Committee on the Judiciary, tions, start companies, and create jobs. against American businesses and innovators. Washington, DC. There has been a great deal of compromise Among the bill’s provisions, Section 16 would Hon. CHUCK GRASSLEY, amongst industries to balance the unique put an end to frivolous false patent marking Ranking Member, needs of all constituents. The independent cases, while still preserving the right of Senate Committee on the Judiciary, Wash- inventor has been well represented through- those who suffered actual harm to bring ac- ington, DC. out this process and we are in a unique situa- tions. Section 5 would create a prior user DEAR CHAIRMAN LEAHY AND RANKING MEM- tion where there is overwhelming support for right for those who first commercially use BER GRASSLEY: We write on behalf of six uni- this legislation. inventions, protecting the rights of early in- versity, medical college, and higher edu- The fee diversion debate has been impor- ventors and giving manufacturers a powerful cation associations to encourage you to tant, since it has shed light on the fact that incentive to build new factories in the work with the leadership of the Senate to nearly a billion dollars has been diverted United States, while at the same time fully bring H.R. 1249 before the Senate as soon as from the USPTO. These are dollars that in- protecting universities. Section 19 also re- possible for a vote on passage of the bill as ventors have paid to the USPTO expecting stricts joinder of defendants who have ten- is. the funds to be used to examine applications uous connections to the underlying disputes The patent system plays a critical role in as expeditiously as possible. While I would in patent infringement suits. Section 18 of enabling universities to transfer the discov- have preferred the Senate’s approach in S. 23 H.R. 1249 provides for a tailored pilot pro- eries arising from university research into to prevent diversion of USPTO funds, I be- gram which would allow patent office ex- the commercial sector for development into lieve that acceptance of the House bill pro- perts to help the court review the validity of products and processes that benefit society. vides the best way to ensure that the funds certain business method patents using the H.R. 1249 closely resembles S. 23; both bills paid to the patent office will be available to best available prior art as an alternative to contain provisions that will improve patent hire examiners and modernize the tools nec- costly litigation. quality, reduce patent litigation costs, and essary for it to operate effectively. provide increased funding for the USPTO. Al- The Chamber strongly opposes any amend- H.R. 1249 is the catalyst necessary to though we preferred the USPTO revolving ments to H.R. 1249 that would strike or incentivize inventors and entrepreneurs to fund established in S. 23, we believe that the weaken any of the important legal reform create the companies that will get our coun- funding provisions adopted by the House in measures in this legislation, including those try back on the right path and generate the the course of passing H.R. 1249 provide an ef- found in Sections 16, 5, 19 and 18. jobs we sorely need. I hope that you will fective means of preventing fee diversion. The Chamber strongly supports H.R. 1249. take the needs of the ‘‘little guy’’ into con- The Chamber may consider votes on, or in Together with the expanded fee-setting au- thority included in both bills, H.R. 1249 will sideration and move this legislation forward relation to, H.R. 1249—including procedural and enact these historic reforms. votes, and any weakening Pamendments—in provide USPTO with the funding necessary to carry out its critical functions. Sincerely, our annual How They Voted scorecard. We very much appreciate the leadership of LOUIS J. FOREMAN, Sincerely, the Senate Judiciary Committee in crafting CEO. R. BRUCE JOSTEN, S. 23, which brought together the key ele- Executive Vice President, Mr. LEAHY. The bill is important for ments of effective patent reform and formed our economy. It is important for job Government Affairs. the basis for H.R. 1249. These bills represent the successful culmination of a thorough, creation. It is a product of bipartisan UNITED STEELWORKERS, balanced effort to update the U.S. patent and bicameral collaboration. It is the Pittsburgh, PA, July 15, 2011. system, strengthening the nation’s innova- way our system is supposed to work. I Hon. PATRICK J. LEAHY, tive capacity and job creation in the increas- look forward to passing the bill and Chairman, Committee on the Judiciary, ingly competitive global economic environ- sending it directly to the President’s U.S. Senate, Washington, DC. ment of the 21st century. Senate passage of desk for his signature. DEAR CHAIRMAN LEAHY: On behalf of the H.R. 1249 will assure that the nation secures I know my friends both on the Re- these benefits. United Steelworkers, I am writing to urge publican side and Democratic side have you to consider support for the recently Sincerely, passed House bill, H.R. 1249. Over the past HUNTER R. RAWLINGS III, amendments to this bill, but they are several years the USW has been deeply in- President, Association not amendments that should pass. I volved in discussions concerning comprehen- of American Univer- mentioned the one earlier. I talked sive patent reform. We were principally con- sities. about the amendment that would put cerned with issues dealing with how damages MOLLY CORBETT BROAD, all our—well, Madam President, which are calculated for infringed patents, new President, American amendment is the first in order? post-grant review procedures, and publica- Council on Edu- The PRESIDING OFFICER. Sessions tion requirements for pending patents. H.R. cation. amendment No. 600. 1249, as did S. 23 which passed earlier this DARRELL G. KIRCH, year, satisfactorily addresses these issues President and CEO, Mr. LEAHY. Madam President, I and has our support. While we prefer the pro- Association of Amer- yield the floor. I know both Senator vision in the Senate bill dealing with USPTO ican Medical Col- SESSIONS and Senator GRASSLEY wish funding, we nevertheless believe that the leges. to speak to that. House bill moves in the right direction and PETER MCPHERSON, The PRESIDING OFFICER. The Sen- will help insure that the patent office has President, Association ators will have 4 minutes equally di- the appropriate and necessary resources to of Public and Land- vided. do its important work. grant Universities. Certainly, no bill is perfect. But H.R. 1249 ROBIN L. RASOR, The Senator from Alabama. goes a long way toward balancing different President, Association Mr. SESSIONS. Madam President, interests on a very difficult and contentious of University Tech- the oath that judges take is to do equal issue. We believe it warrants your favorable nology Managers. justice, and it says for the poor and the consideration and enactment by the Senate ANTHONY P. DECRAPPEO, rich. so that it can be moved to the President’s President, Council on desk and signed into law without undue Every day statutes of limitations re- Governmental Rela- quire that a litigant file a lawsuit delay. tions. We worked closely with your office, and within so many days and file petitions others in the Senate, in finding a consensus JUNE 25, 2011. in so many days. I see Senator CORNYN, approach that would promote innovation, in- DEAR CHAIRMAN LEAHY AND RANKING MEM- a former justice on the Texas Supreme vestment, production and job creation in the BER GRASSLEY: As an independent inventor Court and attorney general of Texas. U.S. We believe that H.R. 1249, which builds and someone who has personally interacted He fully understands that. I know he on your work in the Senate, strikes a proper with thousands of other independent inven- supports my view of this issue; that is, balance. tors and entrepreneurs, we urge you to work The U. S. economy remains in a very frag- with the leadership of the Senate to bring that the rules have to be equally ap- ile state with high unemployment and stag- H.R. 1249 to the Senate floor as soon the Sen- plied. nant wages. Patent reform can be an impor- ate’s schedule might permit and pass the bill It is just not right to the little widow tant part of a comprehensive approach to as is. lady, it is not right that somebody

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.040 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5436 CONGRESSIONAL RECORD — SENATE September 8, 2011 with a poor lawyer, or whatever, the United States so the courts look at Grassley Leahy Reed Hagan Levin Reid misses a deadline and a judge throws it and the bureaucrats look at it in ex- Harkin Lieberman Roberts the case out. And they do. Big law actly the same way. Inouye Lugar Sanders firms such as WilmerHale file motions If you are a citizen of this country, Johnson (SD) Menendez Schumer every day to dismiss cases based on you ought to know what your rights Kerry Merkley Shaheen Klobuchar Mikulski Udall (NM) delay in filing those cases. Big insur- are. You ought to know that a bureau- Kohl Murray Warner ance companies file lawsuits, file mo- crat treats you the same way they Kyl Nelson (NE) Webb tions to dismiss every day against indi- treat, in like situations, somebody Landrieu Nelson (FL) Whitehouse viduals who file their claims too late— else. You cannot have this sort of arbi- Lautenberg Pryor Wyden and they win. So when this big one has trary and capricious action on the part NOT VOTING—2 a good bit of risk, presumably they of faceless bureaucrats that denies the Coats Rockefeller have a good errors and omissions pol- rights. This puts it in statute and so- The amendment was rejected. icy—that is what they are supposed to lidifies it so everybody knows what the Mr. LEVIN. Madam President, I do. law is, rather than relying upon one move to reconsider the vote. One reason they get paid the big judge or in the future having to rely Mr. KERRY. I move to lay that mo- bucks—and the average partner makes upon the court someplace else. I ask tion on the table. $1 million-plus a year—is because they my colleagues not to support the Ses- The motion to lay on the table was have high responsibilities, and they are sions amendment because it would agreed to. required to meet those responsibilities deny equal rights to some people in AMENDMENT NO. 595 and be responsible. this country, as this judge said those The PRESIDING OFFICER. There So I believe it is improper for us, equal rights were already denied. will now be 4 minutes equally divided while this matter is on appeal and in The PRESIDING OFFICER (Ms. KLO- prior to a vote in relation to the Cant- litigation, to take action driven by this BUCHAR). The time has expired. The well amendment. continual lobbying pressure that would Senator from Vermont. The Senator from Washington. exempt one company. They can say it Mr. LEAHY. Madam President, I ask Ms. CANTWELL. Madam President, I is others involved, but, look, this is al- unanimous consent that after the first encourage my colleagues to support ways about one company. I have been vote—we have several more votes—the the Cantwell amendment. The Cantwell here for 10 years. I know how it is remaining votes be 10-minute votes. amendment is the reinstatement of played out. I have seen it. I have talked The PRESIDING OFFICER. Without section 18 language as it passed the to the advocates on their behalf. I just objection, it is so ordered. Senate. So casting a vote for the Cant- haven’t been able to agree to it because The Senator from Vermont. well amendment will be consistent I see the average person not getting Mr. LEAHY. Have the yeas and nays with language previously supported by the benefit they are due. been ordered? each Member. So I urge my colleagues to join in The PRESIDING OFFICER. They The reason we are trying to reinstate support of this amendment. The Wall have not. the Senate language is because the Street Journal and others have edito- The question is on agreeing to the House language broadens a loophole rialized in favor of it, and I urge my Sessions amendment No. 600. that will allow for more confusion over colleagues to support it. Mr. SESSIONS. I ask for the yeas patents that have already been issued. Mr. GRASSLEY. How much time do I and nays. have? It will allow for the cancellation of The PRESIDING OFFICER. Is there a patents already issued by the Patent The PRESIDING OFFICER. Two sufficient second? minutes in opposition to the amend- Office, throwing into disarray and legal There appears to be a sufficient sec- battling many companies that already ment. ond. Mr. GRASSLEY. I think the Senator believe they have a legitimate patent. The clerk will call the roll. from Alabama has given me a reason to The House language, by adding the The bill clerk called the roll. suggest the importance of the language word ‘‘other,’’ broadens the definition Mr. DURBIN. I announce that the of the bill he wants to strike because of section 18 and extends it for 8 years, Senator from West Virginia (Mr. he said that law ought to be equally so this chaos and disarray that is sup- ROCKEFELLER) is necessarily absent. applied. posedly targeted at a single earmark Mr. KYL. The following Senator is The law for this one company is that for the banking industry to try to get necessarily absent: the Senator from they were not given justice by bureau- out of paying royalties is now so broad- Indiana (Mr. COATS). crats who acted in an arbitrary and ca- ened that many other technology com- The PRESIDING OFFICER. Are there pricious manner and they were denied panies will be affected. any other Senators in the Chamber de- their rights under the law. So that I urge my colleagues to support the siring to vote? company is taken care of because there Cantwell amendment and reinstate the The result was announced—yeas 47, was an impartial judge who believed language that was previously agreed nays 51, as follows: they had been abused in their rights to. under Hatch-Waxman to be able to ex- [Rollcall Vote No. 126 Leg.] The PRESIDING OFFICER. The Sen- tend their patent. YEAS—47 ator from New York. You might be able to argue in other Alexander Enzi Murkowski Mr. SCHUMER. Madam President, I places around the country when you Ayotte Hatch Paul rise in opposition to the amendment of Barrasso Heller are likewise denied your right that you Portman my dear friend, Senator CANTWELL. Baucus Hoeven Risch have this court case to back you up, Boozman Hutchison Rubio Business method patents are a real but we cannot have one agency saying Boxer Inhofe Sessions problem. They never should have been when a 60-day period of time starts for Cantwell Isakson Shelby patented to begin with. Let me give an Casey Johanns Snowe mail going in or mail going out to exer- Chambliss Johnson (WI) example: double click. We double click Stabenow Coburn Kirk on a computer or something such as cise your 60-day period, and for another Tester Conrad Lee agency to do it another way. That is Thune that and after it becomes a practice for Corker Manchin basically what the judge said, that Cornyn McCain Toomey awhile, someone files a patent and says Congress surely could not have meant Crapo McCaskill Udall (CO) they want a patent on double clicking. that. DeMint McConnell Vitter Because of the way the Patent Office The language of this section 37 does Durbin Moran Wicker works, the opponents of that never get exactly what Senator SESSIONS wants, NAYS—51 a chance to weigh in as to whether it which is to guarantee in the future Akaka Brown (MA) Collins should be a patent. The Patent Office that no bureaucrat can act in an arbi- Begich Brown (OH) Coons has gone way overboard in allowing trary and capricious way when they de- Bennet Burr Feinstein these business method patents. Bingaman Cardin Franken cide when does the 60-day period of Blumenthal Carper Gillibrand One might say: Then you get your time start. We put it in the statute of Blunt Cochran Graham day in court. That is true, except 56

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.053 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5437 percent—more than half—of all the Menendez Risch Thune average patent pendency was 18.2 business method patent litigation goes Merkley Roberts Toomey months. By fiscal year 1999, it had in- Mikulski Rubio Udall (NM) to one district, the Eastern District of Moran Sanders Warner creased to 25 months. By fiscal year Texas, which is known to be extremely Murkowski Schumer Webb 2010, average patent pendency had in- favorable to the plaintiffs. It takes Nelson (NE) Shaheen Whitehouse creased all the way to 35.3 months. Nelson (FL) Shelby about 10 years to litigate. It costs tens Wicker These are not just numbers. This is Portman Snowe Wyden of millions of dollars. So the people Reed Stabenow innovation being stifled from being who are sued over and over for things Reid Tester brought to market. The longer it takes such as double clicking or how to pho- ANSWERED ‘‘PRESENT’’—1 to get a patent approved, the longer a tograph a check—common things that Paul new invention, a potential techno- are business methods and not patents— logical breakthrough, sits on the shelf NOT VOTING—1 settle. It is a lucrative business for a gathering dust instead of spurring job small number of people, but it is Rockefeller growth and scientific and economic wrong. The amendment was rejected. progress. What this bill does is very simple. AMENDMENT NO. 599, AS MODIFIED Ultimately, this hurts the competi- What the bill does, in terms of this The PRESIDING OFFICER. There is tiveness of the American economy. amendment, is very simple. It says the now 4 minutes equally divided prior to America has a stunning record of lead- Patent Office will make an administra- the vote in relation to the Coburn ing the world in innovation, which has tive determination before the years of amendment. provided us a competitive edge over litigation as to whether this patent is The Senator from Oklahoma is recog- the decades and even centuries. By sti- a legitimate patent so as not to allow nized. fling the progress of our innovation the kind of abuse we have seen. It ap- Mr. COBURN. Madam President, this within the PTO, we are dulling that plies to all financial transactions, is a straightforward amendment that competitive edge. whether it be a bank or Amazon or a says if you pay into the Patent Trade- Obviously, there is a direct relation- store or anybody else, and it makes mark Office to have a patent evalu- ship between fee diversion and patent eminent sense. ated, that money ought to be spent on pendency. The more fees that are di- So as much respect as I have for my the process. We have now stolen almost verted away from the PTO, the fewer colleague from Washington, I must $900 million from the Patent Office. We patent examiners they can hire, the strongly disagree with her argument have almost a million patents in ar- more patents each examiner has to and urge that the amendment be voted rears. We have fantastic leadership in process, and the longer it takes them down. the Patent Office, and we will not send to get to any individual patent—a I yield back the remainder of my them the money to do their job. It is longer patent pendency. time. unconscionable that we will not do The manager of this bill, the distin- The PRESIDING OFFICER. The this. guished chairman of the Judiciary question is on agreeing to the amend- I understand the arguments against Committee, has argued that ‘‘the bill ment. it, and I reserve the remainder of our will speed the time it takes for applica- time. tions on true inventions to issue as Ms. CANTWELL. I ask for the yeas Mrs. FEINSTEIN. Madam President, high quality patents, which can then and nays. I rise today in support of Senator be commercialized and used to create The PRESIDING OFFICER. Is there a COBURN’s amendment to prevent the di- jobs. . . . The America Invents Act will sufficient second? There appears to be version of patent and trademark fees to ensure that the PTO has the resources a sufficient second. other purposes. it needs to work through its backlog of The clerk will call the roll. I am pleased to be a cosponsor of this applications more quickly. The bill ac- The assistant legislative clerk called amendment. I believe this amendment complishes this objective by author- the roll. is critical for this bill to have the inno- izing the PTO to set its fees . . .’’ Mr. PAUL (when his name was vation-encouraging, job-creating ef- But what this bill gave with the one called). Present. fects that its proponents say it will. hand, in authorizing the PTO to set its The PRESIDING OFFICER. Are there Prior to 1990, taxpayers supported the fees, the House of Representatives took any other Senators in the Chamber de- operations of the Patent and Trade- away with the other hand, by striking siring to vote? mark Office, or PTO. In 1990, this was the strong antifee diversion language Mr. DURBIN. I announce that the changed through a 69 percent user fee that the Senate included in its patent Senator from West Virginia (Mr. ‘‘surcharge,’’ so that the PTO became bill earlier this year. Setting higher fee ROCKEFELLER) is necessarily absent. funded entirely through fees paid by its levels to reduce patent pendency does The result was announced—yeas 13, users, the American inventors who no good if those fees are simply di- nays 85, as follows: seek to protect the genius of their in- verted away from the PTO, and not [Rollcall Vote No. 127 Leg.] ventions from those who would copy used to hire additional patent exam- YEAS—13 these innovations for their own profit. iners. Indeed, requiring the payment of Boxer Johnson (WI) Sessions In short order, Congress began using higher patent fees which are then used Cantwell Lee Udall (CO) the funds that inventors paid to pro- for general government purposes really Coburn McCaskill Vitter tect their inventions for other pur- amounts to a tax on innovation—which DeMint Murray poses. In 1992, $8.1 million in user fees is the last thing we should be bur- Hatch Pryor were diverted. In 1993, $12.3 million was dening in today’s technology-driven NAYS—85 diverted. In 1994, $14.7 million. And so economy. Akaka Cochran Inhofe it continued, escalating every year, The chairman argues that the bill Alexander Collins Inouye until what started as a trickle became ‘‘creates a PTO reserve fund for any Ayotte Conrad Isakson Barrasso Coons Johanns a flood in 1998, with $200.3 million in fees collected above the appropriated Baucus Corker Johnson (SD) PTO user fees diverted. All told, since amounts in a given year—so that only Begich Cornyn Kerry 1992, an estimated $886 million in fees the PTO will have access to these Bennet Crapo Kirk that were paid for the efficient and ef- fees.’’ However, with all due respect, Bingaman Durbin Klobuchar Blumenthal Enzi Kohl fective operation of the Patent and the language that the House put into Blunt Feinstein Kyl Trademark Office have been diverted the bill is not really different from pre- Boozman Franken Landrieu to other uses, according to the Intellec- vious bill language that proved ineffec- Brown (MA) Gillibrand Lautenberg Brown (OH) Graham Leahy tual Property Owners Association. tive to prevent diversion. Burr Grassley Levin Meanwhile, at the same time that The 1990 law that authorized the pat- Cardin Hagan Lieberman these fees were being taken away, the ent user surcharge provided that the Carper Harkin Lugar length of time that it takes to get a surcharges ‘‘shall be credited to a sepa- Casey Heller Manchin Chambliss Hoeven McCain patent out of the Patent Office has rate account established in the Treas- Coats Hutchison McConnell steadily increased. In fiscal year 1991, ury . . .; ’’ and ‘‘shall be available only

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.057 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5438 CONGRESSIONAL RECORD — SENATE September 8, 2011 to the Patent and Trademark Office, to review procedure would cost $758 mil- At the same time, however, the back- the extent provided in appropriation lion to implement over that period; and log of patent applications has climbed Acts. . . .’’ the changes to the inter partes reexam- to more than 700,000. It now takes over However, notwithstanding this lan- ination procedure would cost $251 mil- three years for PTO to make a decision guage, the Congressional Budget Office lion to implement. on a patent application. This is unac- found in 2008 that $230 million had been All told, these changes would impose ceptable. While America’s inventors diverted from the surcharge account. additional duties on the PTO costing are waiting in line, their ideas are Similarly, the House changed the bill over $1 billion to implement over a 10- being stolen by other countries. before us today to ‘‘establish[] in the year period. If the PTO is not per- Through annual appropriations bills, Treasury a Patent and Trademark Fee mitted to keep the fees it needs to the Appropriations Committee has suc- Reserve Fund . . .; ’’ and ‘‘to the extent meet these obligations, patents will ceeded in forcing management reforms and in the amounts provided in appro- take even longer to be issued, and the that have slowed the growth of PTO’s priations Acts, amounts in the Fund promised improvements in patent qual- backlogs and improved employee reten- shall be made available until expended ity may prove to be ephemeral. We tion. While further accountability is only for obligation and expenditure by won’t encourage innovation; we won’t needed, the America Invents Act keeps the Office . . .’’ create new jobs. PTO on budget and on track for contin- The key language is the same—‘‘to Therefore, I urge my colleagues to ued oversight by the Appropriations the extent provided in appropriation support the amendment by the Senator Committee each year. Acts.’’ Calling it a ‘‘fund’’ rather than from Oklahoma, to support the strong Finally, the Senator’s amendment an ‘‘account’’ should not lead anyone antidiversion language that we passed could have unintended consequences. If to expect a different result. this Spring, and to end fee diversion PTO were permitted to operate on Indeed, the Senate bill that we once and for all. autopilot, the agency could face fee passed earlier this year explicitly Ms. MIKULSKI. Madam President, I revenue shortfalls and the Appropria- struck the existing statutory language, rise in opposition to the amendment to tions Committee would not be poised ‘‘To the extent and in the amounts pro- the America Invents Act offered by the to assist. The committee continually vided in advance in appropriations Acts Senator from Oklahoma. monitors the agency’s fee projections . . .’’ And the House specifically re- I, along with my fellow members of to ensure the agency can operate effec- stored that language, omitting only the Appropriations Committee, share tively. It is not widely known, but over the words ‘‘in advance.’’ The Coburn the Senator from Oklahoma’s goal of the past 6 years, PTO has actually col- amendment would restore the changes ensuring that all fees paid by inventors lected nearly $200 million less than the we made earlier this year, eliminating to the U.S. Patent and Trademark Of- appropriated levels. that language again. fice, PTO, are used only for the oper- In fact, I recently received a letter The Coburn amendment, like the ations of the PTO. The PTO fosters from the Director of the PTO inform- Senate bill, contains other key lan- American innovation and job creation ing my Subcommittee that fee esti- guage, providing that amounts in the by providing protections for ideas and mates for fiscal year 2012 have already fund it establishes ‘‘shall be available products developed by our entre- dropped by $88 million. I will ask con- for use by the Director without fiscal preneurs, businesses and academic in- sent to have this letter printed in the year limitation.’’ The bill before us stitutions. RECORD. If PTO was put on autopilot as today provides no such protection As the chairwoman of the Appropria- proposed by the Senator’s amendment, against diversion. tions Subcommittee that funds the the committee would no longer have In short, this bill will permit the con- PTO, I have worked to ensure that PTO the tools to provide the necessary fund- tinued diversion of patent fees, to the receives every dollar it collects from ing to keep our patent and trademark detriment of American inventors and inventors. But, while I share the Sen- system operating should a severe fund- innovation. ator’s goal, I oppose his amendment for ing gap occur. But don’t just take my word for this. three reasons. The PTO’s full access to fee revenue The Intellectual Property Owners As- First, the amendment is unnecessary. is critical to American innovation and sociation, which includes more than 200 It is a solution in search of a problem. job creation. I commend Chairman companies, just yesterday said: The underlying America Invents Act LEAHY for his efforts to improve the The greatest disappointment with the before the Senate today ensures that patent system and ensure that PTO House-passed patent reform bill H.R. 1249 PTO can keep and spend all of the fees funding is spent wisely and effectively. . . . is its failure to stop USPTO fee diver- collected. This legislation establishes a I support the funding provisions of the sion. The House-passed patent reform bill Patent and Trademark Fee Reserve America Invents Act and oppose the creates another USPTO account, a ‘‘reserve Fund. Any fees collected in excess of Coburn amendment. I urge my col- fund,’’ but nothing in the proposed statutory annual appropriations would be depos- language guarantees the USPTO access to leagues to do the same. the funds in this new account. The language ited into the fund, and those fees would Madam President, I ask unanimous of H.R. 1249 defers to future appropriations remain available until expended solely consent to have printed in the RECORD bills to instruct the USPTO on how to access for PTO operations. the letter to which I referred. fees in the new USPTO account. Therefore, The creation of this fund is not a new There being no objection, the mate- despite some claims to the contrary, the cre- idea. Provisions of several bills re- rial was ordered to be printed in the ation of this new account, alone, will not ported out of the Senate Appropria- RECORD, as follows: stop diversion. tions Committee in prior years allowed UNITED STATES PATENT The Innovation Alliance, a major co- PTO to keep and spend fee revenue in AND TRADEMARK OFFICE, alition of innovative companies, and excess of appropriations levels. I can Alexandria, VA, September 1, 2011. CONNECT, an organization dedicated assure my colleagues that the com- Hon. BARBARA A. MIKULSKI, to supporting San Diego technology mittee will continue to support such Chairwoman, Subcommittee on Commerce, Jus- and life science businesses, among oth- language. tice, Science, and Related Agencies, Com- ers, also believe that the House lan- mittee on Appropriations, U.S. Senate, Second, the amendment would sig- Washington, DC. guage is insufficient to prevent fee di- nificantly reduce oversight of the PTO. DEAR MADAM CHAIR: This letter provides version. The Senator from Oklahoma’s amend- you with the United States Patent and Without this protection from fee di- ment would establish a new, off-budget Trademark Office’s (USPTO) current, revised version, this bill could well make our revolving fund for PTO fees. This would fee collection estimates for fiscal year (FY) patent system worse, not better. Many put the PTO on autopilot, without the 2012, as requested in the report accom- of the changes made by this bill will oversight of an annual legislative vehi- panying H.R. 3288 (Pub. L. No. 111–117). impose additional burdens on the PTO. The President’s FY 2012 Budget supports cle to hold the agency accountable for an aggressive approach to improving oper- For example, the CBO found that the progress and wise use of taxpayer fund- ations at the Agency, reducing the patent new post-grant review procedure would ing. backlog and contributing to economic recov- cost $140 million to implement over a Since fiscal year 2004, funding for ery efforts. The fee collection estimate sub- 10-year period; the new supplemental PTO has increased by over 70 percent. mitted with the FY 2012 President’s Budget

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.045 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5439 earlier this year was $2,706.3 million, includ- years of efforts by both Republicans bill, I move to table the amendment ing a 15% interim increase to certain patent and Democrats in this body and the and ask for the yeas and nays. user fee rates. This increase will help fund other body to pass it. Actually, this The PRESIDING OFFICER. Is there a efforts to reduce the backlog of unexamined amendment could kill the bill over a sufficient second? patent applications. Using more recent infor- mation, outcomes of events, and projections mere formality: the difference between There appears to be a sufficient sec- of demand for USPTO services, we now ex- a revolving fund and a reserve fund. ond. pect fee collections for FY 2012 to be in the We have worked out a compromise in The question is on agreeing to the $2,431.9 million to $2,727.6 million range, with good faith. The money, the fees—under motion. a working estimate of $2,618.2 million (a de- the bill as it is here—can only be spent The clerk will call the roll. crease of $88.1 million from the FY 2012 at the PTO, but the only thing is, we The legislative clerk called the roll. President’s Budget estimate). actually have a chance to take a look Mr. DURBIN. I announce that the The projected decrease is attributable to at what they are spending it on, so Senator from West Virginia (Mr. factors both internal and external to the they could not buy everybody a car or USPTO; namely, a change in strategic direc- ROCKEFELLER) is necessarily absent. tion resulting in the Office not pursuing a they could not have a gilded palace. Mr. KYL. The following Senator is cost recovery regulatory increase to Request They actually have to spend it on get- necessarily absent: the Senator from for Continued Examination fee rates (this ting through the backlog of patents. It Florida (Mr. RUBIO). was estimated to generate about $70 million will not go anywhere else. It will only The PRESIDING OFFICER (Mr. in patent application fees), the decision not go to the Patent Office. FRANKEN). Are there any other Sen- to pursue a Consumer Price Index increase to So we should not kill the bill over ators in the Chamber desiring to vote? patent statutory fees, and the decrease in de- this amendment. We should reject the The result was announced—yeas 50, mand for USPTO services as a result of proc- amendment and pass the bill. It is time essing reengineering gains from compact nays 48, as follows: for us to legislate. That is what the [Rollcall Vote No. 128 Leg.] prosecution. The USPTO bases these revi- American people elected us to do. That sions on current demand as well as discus- YEAS—50 sions with our stakeholders about expected is what they expect us to do. Let’s not kill the bill after all this work over Akaka Hagan Mikulski trends. The USPTO also reviews filing trends Baucus Harkin Murkowski in foreign patent offices, which have experi- something that will really make no dif- Bennet Hoeven Murray enced similar difficulties in estimating de- ference in the long run. So I therefore Bingaman Inouye Nelson (NE) mand. will move to table the Coburn amend- Blumenthal Johnson (SD) Nelson (FL) In closing, the USPTO would like to thank Brown (MA) Kerry Pryor ment. Brown (OH) Kohl the subcommittee for their support of the The PRESIDING OFFICER. All time Reed Leahy-Smith America Invents Act. We are Cardin Kyl Reid has not yet expired. Carper Landrieu Sanders especially grateful for the subcommittee’s Casey Lautenberg Mr. COBURN. Madam President, I Schumer support in ensuring all fees collected by the Cochran Leahy think I have reserved my time. Shaheen USPTO will be made available for the Collins Levin USPTO to use in examination and intellec- The PRESIDING OFFICER. The Sen- Coons Lieberman Shelby tual property activities supporting the fee ator from Oklahoma has reserved his Durbin Lugar Stabenow Udall (NM) paying community. time. He has 11⁄2 minutes. Franken Manchin Webb If you or your staff have any questions, Mr. COBURN. Madam President, I Gillibrand Menendez Whitehouse please contact Mr. Anthony Scardino, the will make the following points, and I Grassley Merkley USPTO’s Chief Financial Officer, at (571) 272– would ask for order before I do that. NAYS—48 9200. Thank you for your continued support The PRESIDING OFFICER. Could we Alexander DeMint McConnell of the United States Patent and Trademark please have order so the Senator from Ayotte Enzi Moran Office. Oklahoma can speak. Barrasso Feinstein Paul Sincerely, Mr. COBURN. It is true that the Begich Graham Portman DAVID J. KAPPOS, Blunt Hatch Risch Under Secretary and Director. House bill moves the money to where it Boozman Heller Roberts cannot be spent elsewhere, but there is Boxer Hutchison Sessions Identical Letters sent to: no requirement that the money be Burr Inhofe Snowe The Hon. Kay Bailey Hutchison, Ranking Cantwell Isakson Tester Member, Subcommittee on Commerce, Jus- spent in the Patent Office. There is a Chambliss Johanns Thune tice, Science and Related Agencies, written agreement between an appro- Coats Johnson (WI) Toomey Committee on Appropriations, U.S. ÷Senate, priations chairman and the Speaker Coburn Kirk Udall (CO) Conrad Klobuchar Vitter Washington, DC. that is good as long as both of them are Corker Lee Warner The Hon. Frank R. Wolf, Chairman, Sub- in their positions. This is a 7-year au- Cornyn McCain Wicker committee on Commerce, Justice, Science, thorization. It will not guarantee that Crapo McCaskill Wyden and Related Agencies, Committee on Appro- the money actually goes to the Patent priations, House of Representatives, Wash- NOT VOTING—2 ington, DC. Office. Rockefeller Rubio This bill, with this amendment in it, The Hon. Chaka Fattah, Ranking Member, The motion was agreed to. Subcommittee on Commerce, Justice, went out of the House Judiciary Com- Science and Related Agencies, Committee on mittee 32 to 3 in a strong, bipartisan The PRESIDING OFFICER. The ma- Appropriations, House of Representatives, vote. It was never voted on in the Sen- jority leader. Washington, DC. ate because the appropriators objected Mr. REID. Mr. President, we have The PRESIDING OFFICER. Who because of a technical error, which has one more vote. We will have 4 minutes yields time? been corrected in this amendment. So of debate and then a vote on final pas- The Senator from Vermont is recog- it violates no House rules, it violates sage. This is important legislation. nized. no condition and, in fact, will guar- The President’s speech is at 7 Mr. LEAHY. Madam President, I un- antee that the Patent Office has the o’clock. We will gather here at 6:30 to derstand what the Senator from Okla- funds it needs to have to put us back in proceed to the House Chamber. homa says, but the Coburn amendment the place we need to be. When the President’s speech is over, can derail and even kill this bill. So, as This bill will not be killed because we will come back here, and I will I have told the Senator, I will move to we are going to make sure the money move to proceed to the debt ceiling table in a moment. But this bill would for patents goes to the Patent Office. vote that we know is coming. If that otherwise help our recovering econ- Anybody who wants to claim that, ask motion to proceed fails, then we will be omy. It would unleash innovation and yourself what you are saying. We are through for the week as far as votes go. create jobs. not going to do the right thing because If the vote to proceed is affirmative in I have worked for years against Pat- somebody says they will not do the nature, we will be back tomorrow, and ent Office fee diversion, but I oppose right thing? We ought to do the right there will be 10 hours allowed, but we this amendment. Its formulation was thing. don’t have to use it all. already rejected by the House of Rep- I yield back the remainder of my We will have to finish this matter to- resentatives. They have made it very time. morrow. I think it is clear that I hope clear. There is no reason they will Mr. LEAHY. Madam President, be- we don’t proceed to that, but we will change. This amendment can sink cause this amendment would kill the have to see. I am here tomorrow. That

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\A08SE6.046 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5440 CONGRESSIONAL RECORD — SENATE September 8, 2011 vote will start very quickly tonight, as hours than I even want to think about, a particular need for prior user rights soon as the speech is over. We will be or his family wants to think about, given the transition to a first-inventor- in recess subject to the call of the working with me, other Senators, to-file system. Chair. The vote will start quickly. Members of the House, other staff, and The House-originated bill, the Leahy- Also, I have talked to the Republican stakeholders to preserve the meaning- Smith America Invents Act, which the leader about how we are going to pro- ful reforms included in the America In- Senate is considering today, makes im- ceed next week. We don’t have that de- vents Act, as did Susan Davis before portant improvements to expand prior fined, but I am waiting to hear from him. Ed Pagano, my chief of staff, kept user rights beyond just methods of the Speaker, either tonight or tomor- everybody together. I also thank Bruce doing business. These improvements row, to make more definite what we Cohen, my chief counsel on the Judici- will be good for domestic manufac- need to do next week. ary Committee, who every time I turing and job creation. I agree with Again, we have one more vote after thought maybe we are not going to the chairman of the House Committee the President’s speech tonight. make it would tell me ‘‘You have to on the Judiciary that inclusion of ex- Mr. President, I move to reconsider keep going,’’ and he was right. Erica panded prior user rights is essential to the last vote. Chabot, Curtis LeGeyt, and Scott Wil- ensure that those who have invested in Mr. KERRY. I move to lay that mo- son of my Judiciary Committee staff and used a technology are provided a tion on the table. have also spent many hours working on defense against someone who later pat- The motion to lay on the table was this legislation. ents the technology. agreed to. I also commend the hard-working I understand that there is some con- The PRESIDING OFFICER. There staff of other Senators, including Joe fusion regarding the scope of the de- will now be 4 minutes of debate equally Matal, Rita Lari, Tim Molino, and fense in the bill. The phrase ‘‘commer- divided prior to the vote on passage of Matt Sandgren for their dedication to cially used the subject matter’’ is in- the measure. Who yields time? this legislation. Chairman SMITH’s tended to apply broadly, and to cover a The Senator from Vermont is recog- dedicated staff deserves thanks as well, person’s commercial use of any form of nized. including Richard Hertling, Blaine subject matter, whether embodied in a Mr. LEAHY. Mr. President, 6 months Merritt, Vishal Amin, and Kim Smith. process or embodied in a machine, ago, the Senate approved the America I would also like to thank the major- manufacture, or composition of matter Invents Act to make the first meaning- ity leader for his help in passing this that is used in a manufacturing or ful, comprehensive reforms to the Na- critical piece of legislation. other commercial process. This is im- tion’s patent system in nearly 60 years. The America Invents Act is now portant particularly where businesses Today, the Senate has come together going to be the law of the land. I thank have made substantial investments to once again, this time to send this im- all my colleagues who worked together develop these proprietary technologies. portant, job-creating legislation to the on this. And if the technology is embedded in a President to be signed into law. In March, the Senate passed its product, as soon as that product is Casting aside partisan rhetoric, and version of the America Invents Act, S. available publicly it will constitute working together in a bipartisan and 23, by a 95–5 vote. One of the key provi- prior art against any other patent or bicameral manner, Congress is sending sions of the legislation transitions the application for patent because the to President Obama the most signifi- United States patent system from a technology is inherently disclosed. cant jobs bill of this Congress. The bill first-to-invent system to a first-inven- The legislation we are considering originated 6 years ago in the House of tor-to-file system. The Senate consid- today also retains the PTO study and Representatives, when Chairman SMITH ered and rejected an amendment to report on prior user rights. I again and Mr. BERMAN introduced the first strike this provision, with 87 Senators agree with the chairman of the House patent reform proposals. voting to retain the transition. Committee on the Judiciary, that one After dozens of congressional hear- When this body first considered the important area of focus will be how we ings, markup sessions, and briefings, America Invents Act, some suggested protect those who make substantial in- and countless hours of Member and that along with the first-inventor-to- vestments in the development and staff meetings, through two Presi- file transition, the legislation should preparation of proprietary tech- dential administrations, and three Con- expand the prior user rights defense. nologies. It is my hope and expectation gresses, patent reform is finally a re- The prior user rights defense, in gen- that Congress will act quickly on any ality. eral, is important for American manu- recommendations made by the PTO. The Leahy-Smith America Invents facturers because it protects companies Section 27 of the Leahy-Smith Amer- Act is a bipartisan bill and a bipartisan that invent and use a technology, ica Invents Act requires a study by the accomplishment. This is what we in whether embodied in a process or prod- United States Patent and Trademark Washington can do for our constituents uct, but choose not to disclose the in- Office, USPTO, on effective ways to at home when we come together for the vention through the patenting process, provide independent, confirming ge- benefit of the country, the economy, and instead rely on trade secret protec- netic diagnostic test activity where and all Americans. tion. The use of trade secrets instead of gen patents and exclusive licensing for I especially thank Senator KYL for patenting may be justified in certain primary genetic diagnostic tests exist. his work in bringing this bill to the instances to avoid, for example, the I support this section, which was cham- floor of the Senate—twice—and Sen- misappropriation by third parties pioned by Ms. WASSERMAN SCHULTZ, ator GRASSLEY for his commitment to where detection of that usage may be and look forward to the USPTO’s re- making patent reform the Judiciary difficult. These companies should be port. Committee’s top priority this year. permitted to continue to practice the I want to be clear that one of the rea- Chairman SMITH, in the other body, de- invention, even if another party later sons I support section 27 is that noth- serves credit for leading the House’s invents and patents the same inven- ing in it implies that ‘‘gene patents’’ consideration of this important bill. I tion. are valid or invalid, nor that any par- look forward to working with him on In the United States, unlike in our ticular claim in any particular patent our next intellectual property pri- major trading partners, prior user is valid or invalid. In particular, this ority—combating online infringement. rights are limited to inventions on section has no bearing on the ongoing I thank the members of the Senate methods of doing or conducting busi- litigation in Association for Molecular Judiciary Committee, who worked to- ness. The Senate bill included only a Pathology v. Myriad Genetics, lll F.3d gether to get quorums and get this very limited expansion of this defense, lll, 2011 WL 3211513 (Fed. Cir. July passed. I thank them for their con- and required the Director of the Patent 29, 2011). tribution. and Trademark Office, ‘‘PTO’’, to study In Kappos v. Bilksi, lll U.S. lll, Mr. President, I acknowledge several and report to Congress on the oper- 130 S. Ct. 3218 (2010), the Court found members of my Judiciary Committee ation of prior user rights in other coun- that the fact that a limited defense to staff, specifically Aaron Cooper, who tries in the industrialized world, and business method patents existed in sits here beside me. He spent more include an analysis of whether there is title 35 undermined the argument that

VerDate Mar 15 2010 05:25 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.062 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5441 business method patents were categori- piling reasonably available informa- Finally, empirical estimates of the effects cally exempt from patentability. Spe- tion on the nature and impact of law- of patent litigation on various economic cifically, the Court held that a ‘‘con- suits brought by non-practicing enti- variables would likely be highly tenuous. clusion that business methods are not ties under title 35 on the topics out- Measures of the cost of litigation or other patentable in any circumstances would variables related to quantifying patents or lined in section 34(b). Where it deems litigation would be highly uncertain and any render § 273 [of title 35] meaningless.’’ necessary, GAO may use a smaller relationships derived would likely be highly Bilski, 130 S. Ct. at 3228. But the section sample size of litigation data to fulfill sensitive to small changes in these measures. 27 study is readily distinguishable from this obligation. GAO should simply Such relationships are likely to lead to in- the substantive prior user rights de- note any limitations on data or meth- conclusive results, or results so heavily fense codified in title 35 referenced in odology in its report. qualified that they likely would not be Bilski. A ‘‘gene patent’’ may or may I ask unanimous consent to have meaningful or helpful to the Congress. In that regard, we understand recent regulatory not be valid, and that has no impact on printed in the RECORD a letter from efforts to determine the economic and anti- the USPTO study, which mentions the Gene L. Dodaro, Comptroller General existence of gene patents issued by the competitive effects of such litigation have of the United States, detailing GAO’s not been successful. USPTO (but still subject to a validity possible limitations in complying with We appreciate your consideration of this challenge), but focuses on the effect of section 34. matter and we would be happy to work with patents and exclusive licensing of ge- There being no objection, the mate- your staff regarding potential alternatives. netic diagnostic tests, regardless of rial was ordered to be printed in the GAO could, for example, identify what is cur- whether there are relevant patents. RECORD, as follows: rently known about each of the specific ele- This study will be useful and inform- ments identified in Section 34. Managing As- UNITED STATES sociate General Counsel Susan Sawtelle, at ative for policymakers no matter how GOVERNMENT ACCOUNTABILITY OFFICE section 101 of title 35 is interpreted by (202) 512–6417 or [email protected], or Con- Washington, DC, September 7, 2011. gressional Relations Assistant Director Paul the courts. Hon. PATRICK J. LEAHY, Chairman, There has been some question about Thompson, at (202) 512–9867 or Hon. CHARLES E. GRASSLEY, Ranking Member, [email protected], may be contacted re- the scope of patents that may be sub- Committee on the Judiciary, U.S. Senate. garding these matters. ject to the transitional program for Hon. LAMAR S. SMITH, Chairman, Sincerely yours, Hon. JOHN CONYERS, Jr., Ranking Member, covered business method patents, GENE L. DODARO, which is section 18 of the Leahy-Smith Committee on the Judiciary, House of Rep- Comptroller General of the United States. America Invents Act. This provision is resentatives. Hon. JASON CHAFFETZ, Mr. LEAHY. The America Invents intended to cover only those business House of Representatives. Act is now going to be the law of the method patents intended to be used in I am writing to express our concern regard- land. I thank all my colleagues who the practice, administration, or man- ing a provision relating to GAO in H.R. 1249, worked together on this. agement of financial services or prod- the Leahy-Smith America Invents Act. Sec- The PRESIDING OFFICER. The Sen- ucts, and not to technologies common tion 34 of the bill would require GAO to con- ator from Washington is recognized. in business environments across sec- duct a study of patent litigation brought by Ms. CANTWELL. Mr. President, ris- tors and that have no particular rela- so-called non-practicing entities, that is, ing in opposition, this is not a patent tion to the financial services sector, plaintiffs who file suits for infringement of their patents but who themselves do not reform bill, this is a big corporation such as computers, communications have the capability to design, manufacture, patent giveaway that tramples on the networks, and business software. or distribute products based on those pat- rights of small inventors. It changes A financial product or service is not, ents. As the Supreme Court and Federal ‘‘first to invent’’ to ‘‘first to file,’’ however, intended to be limited solely Trade Commission have noted, an industry which means if you are a big corpora- to the operation of banks. Rather, it is of such firms has developed; the firms obtain tion and have lots of resources, you intended to have a broader industry patents not to produce and sell goods but to will get there and get the patent. definition that includes insur- obtain licensing fees from other companies. Secondly, it doesn’t keep the money The GAO study required by H.R. 1249 would ance,brokerages, mutual funds, annu- where it belongs. It belongs in the Pat- ities, andan array offinancial compa- mandate a review of: (1) the annual volume of such litigation for the last 20 years; (2) the ent Office. Yet, instead of having re- nies outside of traditional banking. number of these cases found to be without forms that will help us expedite pat- Section 34 of the Leahy-Smith Amer- merit after judicial review; (3) the impacts of ents, it is giving away the money that ica Invents Act requires a study by the such litigation on the time required to re- is needed to make this kind of innova- Government Accountability Office, solve patent claims; (4) the estimated costs tion work. GAO, on the consequences of patent in- associated with such litigation; (5) the eco- Third, the bill is full of special give- fringement lawsuits brought by non- nomic impact of such litigation on the econ- aways to particular industry corpora- practicing entities under title 35, omy; and (6) the benefit to commerce, if any, tions, as we have just witnessed with supplied by such non-practicing entities. United States Code. The legislation re- votes on the floor. quires that GAO’s study compile infor- We believe this mandate would require GAO to undertake a study involving several Fourth, by taking away the business mation on (1) the annual volume of questions for which reliable data are not patent method language, you will such litigation, (2) the number of such available and cannot be obtained. In the first make it more complicated and have cases found to be without merit, (3) the instance, the mandate would require identi- years and years of lawsuits on patents impact of such litigation on the time fication of non-practicing entities that bring that have already been issued. If this is to resolve patent claims, (4) the related patent lawsuits. While some information job creation, I have news for my col- costs, (5) the economic impact, and (6) about these entities may be obtainable, a de- leagues; in an innovation economy, it finitive list of such entities does not exist the benefit to commerce. is siding with corporate interests Following the House passage of H.R. and there is no reliable method that would allow us to identify the entire set from court against the little guy. I urge a ‘‘no’’ 1249, the Comptroller General expressed vote. concern that Section 34 may require it documents or other available databases. Moreover, quantifying the cases found to be Mr. LEAHY. Mr. President, I ask for to answer certain questions for which meritless by a court would produce a mis- the yeas and nays. the underlying data either does not leading result, because we understand most The PRESIDING OFFICER. Is there a exist, or is not reasonably available. of these lawsuits are resolved by confidential sufficient second? Where that is the case, I want to make settlement. Similarly, there is no current re- There is a sufficient second. clear my view that GAO is under no ob- liable source of information from which to The yeas and nays were ordered. ligation to include or examine informa- estimate the effects of litigation by such en- The PRESIDING OFFICER. The tion on a subject for which there is ei- tities on patent claims, litigation costs, eco- question is on the third reading and ther no existing data, or that data is nomic impacts, or benefits to commerce. passage of the bill. not reasonably obtainable. Further, Further, because GAO does not have legal The bill (H.R. 1249) was ordered to a access to these private parties, we would GAO is not required to study a quan- have to rely on voluntary production of such third reading and was read the third tity of data that it deems unreason- information, a method we believe would be time. able. unreliable under these circumstances and The PRESIDING OFFICER. The bill In my view, GAO can satisfy its re- would yield information that is not likely to having been read the third time, the quirements under section 34 by com- be comparable from entity to entity. question is, Shall the bill pass?

VerDate Mar 15 2010 04:10 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.064 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE S5442 CONGRESSIONAL RECORD — SENATE September 8, 2011 The clerk will call the roll. and hundreds of drug patent extension would stay within the Office to cover The assistant legislative clerk called applications have been filed since the its operating costs, rather being di- the roll. law was enacted. Four have been late. verted to fund unrelated government Mr. DURBIN. I announce that the Four. programs. I remind my colleagues of what the Senator from West Virginia (Mr. Unfortunately, the House of Rep- Wall Street Journal had to say about ROCKEFELLER) is necessarily absent. resentatives removed these important Mr. KYL. The following Senator is this provision: provisions, which were critical to se- necessarily absent: the Senator from As blunders go, this was big. The loss of curing my support for patent reform. A Florida (Mr. RUBIO). patent rights means that generic versions of modernized patent process that re- The PRESIDING OFFICER. Are there Angiomax might have been able to hit phar- stricted ‘‘fee diversion’’ would have any other Senators in the Chamber de- macies since 2010, costing the Medicines Co. spurred innovation and job creation. siring to vote? between $500 million and $1 billion in profits. If only the story ended there. Small inventors have raised concerns The result was announced—yeas 89, Instead, the Medicines Co. has mounted a about the new patent processes that nays 9, as follows: lobbying offensive to get Congress to end run the judicial system. Since 2006, the Medi- the bill sets forth, and without ade- [Rollcall Vote No. 129 Leg.] quate protections against fee diversion, YEAS—89 cines Co. has wrangled bill after bill onto the floor of Congress that would change the rules I am unable to support this bill. Addi- Akaka Gillibrand Moran retroactively or give the Patent Office direc- tionally, I have concerns about House Alexander Graham Murkowski tor discretion to accept late filings. One language that resolves certain legal Ayotte Grassley Murray version was so overtly drawn as an earmark Barrasso Hagan Nelson (NE) issues for a limited group of patent Baucus Harkin Nelson (FL) that it specified a $65 million penalty for late holders. I support the underlying goals Begich Hatch Portman filing for ‘‘a patent term extension . . . for a of this bill, but for the aforementioned Bennet Heller drug intended for use in humans that is in Pryor reasons, I would have voted ‘‘nay’’ on Bingaman Hoeven Reed the anticoagulant class of drugs.’’ Blumenthal Hutchison Reid . . . no one would pretend the impetus for H.R. 1249 had I been present. Blunt Inhofe Risch this measure isn’t an insider favor to save Boozman Inouye Had I been present for the rollcall Roberts $214 million for a Washington law firm and Brown (MA) Isakson Sanders vote on S.J. Res. 25, I would have voted Brown (OH) Johanns perhaps more for the Medicines Co. There Schumer ‘‘yea.’’ I strongly disapprove of the Burr Johnson (SD) was never a problem to fix here. In a 2006 Sessions Cardin Kerry House Judiciary hearing, the Patent Office surge in Federal spending that has Carper Kirk Shaheen noted that of 700 patent applications since pushed our national debt to $14.7 tril- Shelby Casey Klobuchar 1984, only four had missed the 60-day dead- lion, and firmly believe that Congress Chambliss Kohl Snowe Stabenow line. No wonder critics are calling it the Dog must cut spending immediately and Coats Kyl Ate My Homework Act. Cochran Landrieu Tester send a strict constitutional balanced Collins Lautenberg Thune This bailout provision was not in- budget amendment to the States for Conrad Leahy Toomey cluded in the Senate-passed Patent bill ratification. We must also give job cre- Coons Levin Udall (CO) Corker Lieberman Udall (NM) earlier this year. It was added by the ators the certainty they need to hire Cornyn Lugar Vitter House of Representatives. The provi- new workers and expand operations, Crapo Manchin Warner sion should have been stripped by the growing the economy and increasing Durbin McConnell Webb Senate earlier today. The fact that it revenue in the process. Instead of pre- Enzi Menendez Whitehouse Feinstein Merkley Wicker wasn’t required me to vote against tending that more debt-financed spend- Franken Mikulski Wyden final passage. ing will create prosperity, Congress ∑ Mr. RUBIO. Mr. President, due to NAYS—9 should take job-destroying tax hikes health concerns of my mother, I was off the table, overhaul our burdensome Boxer DeMint McCain Cantwell Johnson (WI) McCaskill absent for the motion to table amend- regulatory system, and immediately Coburn Lee Paul ment No. 599 offered by Senator pass the pending free trade agreements COBURN to H.R. 1249, the America In- NOT VOTING—2 with South Korea, Colombia, and Pan- vents Act, final passage of H.R. 1249, ama.∑ Rockefeller Rubio and on S.J. Res. 25. The bill (H.R. 1249) was passed. Had I been present for the motion to Mr. BENNET. Mr. President, I rise to explain my vote on one amendment Mr. MCCAIN. Mr. President, today I table amendment No. 599 offered by today. But I would first like to com- voted against passage of the patent re- Senator COBURN to H.R. 1249, I would form bill because it contained an egre- have opposed the motion in support of mend Chairman LEAHY for his long gious example of corporate welfare and the underlying amendment, and would years of work on patent reform, which blatant earmarking. Unfortunately, have voted ‘‘nay’’ on final passage of culminated in final passage this this special interest provision was de- the America Invents Act. H.R. 1249 is evening of the America Invents Act. I signed to benefit a single interest and significantly different than the origi- proudly supported this legislation, and was tucked into what was otherwise a nal Senate bill that I supported, and I am sure it’s gratifying for the senior worthwhile patent reform bill. As I will ultimately not accomplish the Senator from Vermont that the Senate noted earlier today when I spoke in goal of modernizing the patent process overwhelmingly voted to send this bill support of the amendment offered by in the United States in the most effec- to the President’s desk. my colleague from Alabama, Senator tive manner. But like most bills that the Senate SESSIONS, needed reform of our patent The patent process in our country is considers, this legislation is not per- laws should not be diminished nor im- painfully slow and inefficient. It takes fect, as I know the chairman himself paired by inclusion of the shameless years from the time an invention is has said. There is one major way that special interest provision, dubbed ‘‘The submitted to the Patent and Trade Of- the bill we approved today could have Dog Ate My Homework Act’’ that bene- fice, PTO, to the time that the patent been improved, and that is if we had re- fits a single drug manufacturer, Medi- is granted and the holder of the patent tained language in the original Senate cines & Company, to excuse their fail- gains legal rights to their invention. bill that guaranteed that the U.S. Pat- ure to follow the drug patent laws on Currently, there are over 700,000 pat- ent and Trademark Office would be the books for over 20 years. ents waiting for their first review by able to maintain an independent fund- Again, as I said earlier today, patent the PTO. I supported the original Sen- ing stream. For that reason, I com- holders who wish to file an extension of ate bill, S.23, which would have ensured mend Senator COBURN for his effort to their patent have a 60-day window to that the PTO was properly funded, re- amend the bill to revert back to that make the routine application. There is ducing the time between the filing of a better funding mechanism. For years, no ambiguity in this timeframe. In patent and the granting of the same. we have asked the PTO to do more fact, there is no reason to wait until This bill, which passed the Senate by a than its funding levels have allowed it the last day. A patent holder can file 95–5 margin on March 8, 2011, included to do well. And while the bill we passed an extension application anytime with- critical provisions that would have en- today takes important steps towards in the 60-day period. Indeed, hundreds sured that user fees paid to the PTO committing more resources to

VerDate Mar 15 2010 05:36 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.067 S08SEPT1 smartinez on DSK6TPTVN1PROD with SENATE September 8, 2011 CONGRESSIONAL RECORD — SENATE S5443 the PTO, I did prefer the independent strangers joined together to fill the privacy and trample on our Constitu- funding stream approach. streets despite their differences. They tion in the name of security and free- Senator COBURN’s amendment may poured out their support. They rede- dom. Measures such as the PATRIOT have been the better approach, but I fined the United States of America. I Act, which I have consistently opposed, voted to table the amendment because knew then that this great Nation forfeit some basic freedoms. Some law- it could well have permanently sunk would overcome. Events that unite us makers aren’t stopping there. this enormously important legislation. will always make us stronger. I was re- In the House, a bill called the Na- Sending the bill back to the House minded of that on May 2, when Navy tional Security and Federal Lands Pro- with new language that the House has SEALs found and brought swift justice tection Act would allow the Depart- rejected and says it would reject again to Osama bin Laden, prompting sponta- ment of Homeland Security to waive would have, at best, substantially de- neous celebrations across Montana and laws and seize control of public lands layed the reform effort and, at worst, the rest of the country. within 100 miles of the border, even if stymied the bill just when we were We must never lose sight of our abil- that means closing off grazing lands, reaching the finish line. And this bill is ity to find common ground and work shuttering national parks, and tram- important it can help our economy at a together on major issues that affect us pling on the rights of private land own- critical juncture and can even result in all. We have much more in common ers. That would have an enormous im- my state of Colorado getting a satellite than not, and we should never forget pact on the whole of Montana. If bad PTO office, which would be a major that. It is what built this country. It is bills such as that are turned into law, jobs and economic driver. I also worked what made this the best Nation on America loses. with colleagues on both sides of the Earth, and we need to summon that Our Constitution is a powerful docu- aisle to include important provisions spirit again as we work to rebuild our ment, and terrorists want nothing that will help small businesses. None of economy. more than to watch our rights crumble this would have been possible if we Over the past decade, we have been away by the weight of our own policies. reminded of some powerful truths that amended the bill at this late stage. We can, and we will, remain strong. we can never afford to lose sight of. We I remain committed to working with But we must do it with respect to our can never take the security of this colleagues in the coming months and rights and freedoms. country for granted. There are and, years to make sure that PTO gets the Today, as on Sunday, my prayers are sadly, always will be people out there resources it needs to do the job that with those Americans who have died at bent on destroying what America Congress has asked it to do. the hands of terrorists on and since 9/11 stands for, taking innocent lives with Mr. REID. Mr. President, I move to and for the tens of thousands of troops them. They are always looking for the reconsider the vote by which the bill still on the frontlines in Afghanistan weakest links in our security. They are was passed, and I also move to lay that and elsewhere and for the families of trained and well financed. But our Na- motion on the table. thousands of American troops who tion’s troops, our intelligence agents, have died in service to this country The motion to lay on the table was our law enforcement and border secu- agreed to. since that terrible day. rity officers are even better trained. My wife Charlotte and I stand with f I am particularly concerned about all Montanans in saying thank you to weaknesses along the Montana north- MORNING BUSINESS the members of our military, present ern border with Canada. Up until re- Mr. REID. Mr. President, I ask unan- and past, especially those who have cently, only a few orange cones in the come home with injuries, seen and un- imous consent that the Senate proceed middle of a road protected the country seen. This Nation will never forget to morning business until 6:10 p.m. from terrorism. Unfortunately, the today and that Senators, during that your sacrifices. days when orange cones did the trick Ms. MURKOWSKI. Mr. President, period of time, be permitted to speak are behind us. many of us remember exactly where we up to 10 minutes each. I have worked on the Homeland Secu- were on the morning of September 11, The PRESIDING OFFICER. Without rity Committee to improve this Na- 2001. We will never forget the footage objection, it is so ordered. tion’s security, and things are better from New York as the towers fell, from than they were a decade ago. We are f the Pentagon as fire raged, and from still working to achieve the right mix PROVIDING FOR RECESS SUBJECT of people, technology, and know-how to Pennsylvania, where United flight 93 TO THE CALL OF THE CHAIR secure the northern border. was grounded in a field. We questioned who would do this, if another attack Mr. REID. I ask unanimous consent We have also been reminded that America’s military can achieve any- was coming, and if we were safe in our that upon the conclusion of the joint own country anymore. The tragedy suf- session, the Senate stand in recess, thing asked of it. This comes with a cost. Similar to so many folks of the fered by our nation on that day left us subject to the call of the Chair. with important lessons to learn, im- The PRESIDING OFFICER. Without greatest generation after Pearl Harbor day, hundreds of Montanans signed up provements to make, and a renewed objection, it is so ordered. sense of urgency towards the future of The Senator from Montana. to defend our country after 9/11. I stand in deep appreciation for the men and our society and national security. f women who, in those dark hours, stood On that Tuesday morning, we were victims of a terrible attack that killed REMEMBERING 9/11 for our country. I thank them and their families for their service, their sac- 2,961 American citizens, destroyed $15 Mr. TESTER. Mr. President, on Sun- rifice, and their patriotism. billion of property, and launched us day, this Nation will pause to remem- In the years since 9/11, American into a battle we continue to fight. The ber a painful day in American history. forces have paid a tremendous price in actions of the terrorists also sparked On September 11, 2001, I was glued to Iraq and Afghanistan in lives and live- the spirit of a nation united. It left us the radio in my pickup on a long drive lihoods. Until only a few years ago, with a resolve to regroup, rebuild and back home to Big Sandy. It wasn’t veterans had to fight another battle at recover while renewing our country’s until I stopped at a Billings restaurant home trying to get access to the bene- reputation as a world leader and sym- that I finally saw on TV what I had fits they were promised. Too many vet- bol of freedom. heard about all day. The pictures were erans are still fighting for adequate The impacts of 9/11 were not lost on surreal. funding and access to quality health Alaskans. Although thousands of miles Although the attacks of 9/11 weren’t care services that they have earned. As away at the moment of attack, Alas- America’s first test of uncertainty, all one veteran said, ‘‘The day this Nation kans sprung into action to help their of us knew this Nation would change stops taking care of her veterans is the countrymen in any way possible. Some forever. day this Nation should stop creating deployed to Ground Zero, some spon- In the hours and days and weeks fol- them.’’ I couldn’t agree more. sored fundraisers or blood drives, and lowing the attacks of September 11, Montanans are reminded that some some to this day are serving their 2001, Americans, neighbors, and perfect out there are still willing to invade our country in the ongoing operations in

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