December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7511 House for 1 minute and to revise and may have 5 legislative days within Abusive patent litigation is a drag on extend his remarks.) which to revise and extend their re- our economy. Everyone from inde- Mr. AL GREEN of Texas. Madam marks and include extraneous material pendent inventors to start-ups to mid- Speaker, I want to thank Congressman on H.R. 3309 under consideration. and large-sized businesses face this CHRISTOPHER SMITH of New Jersey for The SPEAKER pro tempore (Mr. constant threat. The tens of billions of leading a codel to the Philippines. I, HULTGREN). Is there objection to the dollars spent on settlements and litiga- along with Congressman TRENT request of the gentleman from Vir- tion expenses associated with abusive FRANKS, were members of the codel. ginia? patent suits represent truly wasted And I want people to know that there There was no objection. capital—wasted capital that could have is still great work to be done for our The SPEAKER pro tempore. Pursu- been used to create new jobs, fund friends in the Philippines. ant to House Resolution 429 and rule R&D, and create new innovations and This picture depicts some of the dam- XVIII, the Chair declares the House in technologies that ‘‘promote the age that we were able to see while we the Committee of the Whole House on progress of science and useful arts.’’ were there in Tacloban, which is a the state of the Union for the consider- And that is what innovation is really province in the Philippines. This is an- ation of the bill, H.R. 3309. about, isn’t it? If you are able to create other picture that shows actual homes. The Chair appoints the gentlewoman something, invent something new and This is a USAID sign. And these are from North Carolina (Ms. FOXX) to pre- unique, then you should be allowed to places where people are actually dwell- side over the Committee of the Whole. sell your product, grow your business, ing at this time. The number one prob- b 0915 hire more workers, and live the Amer- lem that they have right now is shel- IN THE COMMITTEE OF THE WHOLE ican Dream. ter. Accordingly, the House resolved The Innovation Act puts forward rea- I will also add that our military has itself into the Committee of the Whole sonable policies that allow for more done an outstanding job. I had an op- House on the state of the Union for the transparency and brings fundamental portunity to meet with many of our consideration of the bill (H.R. 3309) to fairness to the patent system and the military people who were there with amend title 35, United States Code, and courts. The Innovation Act is designed to heavy equipment, and I commend them the Leahy-Smith America Invents Act deal with systemic issues surrounding for what they have done. to make improvements and technical abusive patent litigation as a whole, Finally, I would like to say this. We corrections, and for other purposes, and includes a number of provisions de- have a bill, H.R. 3602, which would ac- with Ms. FOXX in the chair. cord people from the Philippines in the The Clerk read the title of the bill. signed to ameliorate this significant United States a temporary protective The CHAIR. Pursuant to the rule, the problem. status. This would allow them to stay bill is considered read the first time. Within the past couple of years, we here, as opposed to going home where The gentleman from Virginia (Mr. have seen an exponential increase in the income is less than $2 a day for GOODLATTE) and the gentleman from the use of weak or poorly granted pat- more than 40 percent of the people. Michigan (Mr. CONYERS) each will con- ents against American businesses with My hope is that we can pass H.R. trol 30 minutes. the hopes of securing a quick payday. 3602. It does not give any pathway to The Chair recognizes the gentleman Many of these abusive practices are fo- citizenship. It will only allow them to from Virginia. cused not just on larger companies but send money back home while they are Mr. GOODLATTE. Madam Chairman, against small and medium-sized busi- here working in the United States. I yield myself such time as I may con- nesses as well. These suits target a set- sume. tlement just under what it would cost f Today, we are here to consider H.R. for litigation, knowing that these busi- CONGRATULATING THE BATAVIA, 3309, the Innovation Act. The enact- nesses will want to avoid costly litiga- ILLINOIS, HIGH SCHOOL FOOT- ment of this bill is something I con- tion and probably pay up. The patent BALL TEAM sider central to U.S. competitiveness, system was never intended to be a playground for litigation extortion and (Mr. HULTGREN asked and was job creation, and our Nation’s future frivolous claims. given permission to address the House economic security. The bill takes meaningful steps to address the abu- The Innovation Act contains needed for 1 minute and to revise and extend reforms to address the issues that busi- his remarks.) sive practices that have damaged our patent system and resulted in signifi- nesses of all sizes and industries face Mr. HULTGREN. Madam Speaker, I from patent troll-type behavior, while rise to congratulate the Batavia High cant economic harm to our Nation. During the last Congress, we passed keeping in mind several key principles, School Bulldogs for winning their first the America Invents Act. Many view including targeting abusive behavior ever Illinois State football champion- the AIA as the most comprehensive rather than specific entities, pre- ship. overhaul to our patent system since serving valid patent enforcement tools, On Saturday, November 30, Batavia the 1836 Patent Act. However, the AIA preserving patent rights, promoting in- faced off against Richards High School, was, in many respects, a prospective vention by independents and small which shares the same nickname, in an bill. The problems that the Innovation businesses, and strengthening the over- epic battle of the Bulldogs. At NIU’s Act will solve are more immediate and all patent system. Huskie Stadium in DeKalb, an esti- go to the heart of current abusive pat- Congress, the Federal courts, and the mated 12,000 Batavia fans roared as ent litigation practices. PTO must take the necessary steps to Micah Coffey, the quarterback, threw This bill builds on our efforts over ensure that the patent system lives up for two touchdowns and running back the past decade. It can be said that this to its constitutional underpinnings, Anthony Scaccia ran for three more. bill is the product of years of work. We and let me be clear about Congress’ Both teams fought hard, but Batavia have worked with Members of both par- constitutional authority in this area. prevailed, capping their virtually ties in both the Senate and the House, The Constitution grants Congress the undefeated season with a 34–14 victory. with stakeholders from all areas of our power to create the Federal courts, and I commend Coach Dennis Piron and economy, and with the administration the Supreme Court has long recognized the entire Bulldogs team for the hard and the courts. that the prescription of court proce- work that went into a strong 13–1 sea- To ensure an open, deliberative, and dure falls within the legislative func- son and the IHSA Class 6A State cham- thoughtful process, we held several tion. pionship. Go Bulldogs. hearings and issued two public discus- To that end, the Innovation Act in- f sion drafts in May and September of cludes heightened pleading standards this year, which led to the formal in- and transparency provisions. Requiring INNOVATION ACT troduction of the Innovation Act in Oc- parties to do a bit of due diligence up GENERAL LEAVE tober. I strongly believe that the Inno- front before filing an infringement suit Mr. GOODLATTE. Mr. Speaker, I ask vation Act takes the necessary steps to is just plain common sense. It not only unanimous consent that all Members address abusive patent litigation. reduces litigation expenses, but saves

VerDate Mar 15 2010 00:19 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00003 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.004 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7512 CONGRESSIONAL RECORD — HOUSE December 5, 2013 the courts’ time and resources. Greater rules and judicial changes that will Mr. CONYERS. Madam Chair, I yield transparency and information make make it more difficult for inventors to 3 minutes to the gentleman from Ken- our patent system stronger. protect their patent rights. tucky (Mr. MASSIE). The Innovation Act also provides for These changes are strongly opposed Mr. MASSIE. Madam Chair, I want to more clarity surrounding initial dis- by the Judicial Conference of the briefly tell you about a young boy who covery, case management, fee shifting, United States, the principal policy- grew up in modest surroundings in joinder, the common law doctrine of making body that Congress established rural Kentucky. customer stays, and protecting IP li- to administer our Federal court sys- Although he had no money, he was censes in bankruptcy. Further, the tem. inspired to invent. So he collected junk bill’s provisions are designed to work I have spent my entire career on Ju- to build his inventions—broken clocks, hand-in-hand with the procedures and diciary to help foster an independent radios, vacuum cleaners. Who knows, practices of the Judicial Conference, judiciary that can resolve disputes be- maybe one day he could assemble this including the Rules Enabling Act and tween parties on a fair and dis- junk into an invention that would the courts, providing them with clear passionate basis based on an even- allow him to pull himself out of his policy guidance while ensuring we are handed set of rules. There is little humdrum environment. not predetermining outcomes and that doubt that the Federal judiciary, as He was inspired to invent by stories the final rules and the implementation evidenced by its exceedingly delibera- of Edison, Ford, and Tesla. In the sev- in the courts will be both deliberative tive rulemaking process, is in a far bet- enth grade, he invented this robot arm and effective. ter position than the entire Congress that you see here, which won him a Today, we are taking a pivotal step to set the proper rules for their own prize at the science fair. He even in- toward eliminating the abuses of our courtrooms on these matters. vented a flower pot that would water patent system, discouraging frivolous By unbalancing the patent system, itself for his grandmother. patent litigation, and keeping laws up we send a signal to inventors—the very He went on to college, where he met to date. The Innovation Act will help people doing the research and devel- other inventors, inspired, again, not fuel the engine of American innovation oping the cures that benefit us all just by creativity but by the fact that and creativity, help create new jobs, every day—that their inventions are they can make an honest living by im- and grow our economy. not worthy of full legal protection. proving the lives of others. I reserve the balance of my time. This means that the next cure for can- One of his inventor friends invented a Mr. CONYERS. Madam Chair, I yield cer or technological breakthrough may robot that vacuums floors for millions myself such time as I may consume. be stymied and perhaps never come, or of people now. This boy went on to in- Of course, we are here to correct the they will be developed abroad rather vent a touch interface for computers, problem of patent trolls. We are, unfor- than in the United States. obtain 29 patents, raise venture cap- tunately, faced with a measure, H.R. We can and should respond to the ital, and create dozen of jobs. 3309, which goes well beyond the issue problem of patent trolls in a direct, but His story is only possible in America, of trolls and would, unfortunately, fair and targeted, manner; but we must where our robust intellectual property weaken every single patent in America. not do so in a way that punishes our system and judicial system work to- I say this for several reasons. innovators and inhibits innovation. gether to protect the property rights of First, H.R. 3309 fails to respond to the Madam Chair, I reserve the balance inventors. single most important problem facing of my time. b 0930 our patent system today—the con- Mr. GOODLATTE. Madam Chairman, tinuing diversion of patent fees. it is now my pleasure to yield 1 minute Knowing this and relying on this, Nearly $150 million in badly needed to the gentleman from North Carolina many inventors dedicate their entire user fees have been diverted in fiscal (Mr. HOLDING), a distinguished member lives to inventing things that will im- 2013. It is estimated that $1 billion in of the Judiciary Committee. prove and extend the lives of others. fees have been diverted in the last two Mr. HOLDING. Madam Chairman, I Today’s patent reform bill is a seri- decades. This cannot go on. rise in support of H.R. 3309, the Innova- ous threat to American inventors. That Next, the bill’s heightened pleading tion Act, because it is crucial to pre- is why inventors are urging us not to requirements will deny legitimate in- serving the integrity of our Nation’s pass this bill today. It will extinguish ventors access to the court in several innovators and creators. creativity and invention in America. critical respects: Recklessly weakening the patent sys- They will have an unfair impact One of the constitutional responsibil- tem, as this bill does, will deprive in- against patent holders across the ities of Congress is to ‘‘promote the ventors of income and a livelihood. board; progress of science and useful arts.’’ They are drafted in a one-sided man- This legislation does just that by de- They will pursue other careers. As the ner; terring abuse of our patent litigation role models for young inventors quietly They will prolong litigation; system. fade into history, fewer young students They are unnecessary because the As a United States Attorney, I saw will pursue invention. A decade from courts are already addressing pleading how patent trolls abuse our patent liti- now, Congress will further lament the standards. gation system by acquiring patents lack of interest among the next genera- The next thing I would bring to your that they have no intention of using tion in science, engineering, tech- attention is the bill’s fee-shifting re- for anything other than their own mon- nology, and math, arrogantly unaware quirements will favor wealthy parties etary gain. Patent trolls sue companies that it was Congress that killed that and chill meritorious claims. for allegedly infringing on patents they interest today with this bill, should it I am not surprised that the other side had no business acquiring in the first pass. would be advancing something like place. How do I know this boy’s story so this, but it is shocking because the pro- The Innovation Act, which I am well? How can I anticipate the unin- vision is drafted in an overly broad proud to cosponsor, makes it more dif- tended consequences of this bill? I am manner and will apply well beyond pat- ficult for patent trolls to form a case. the boy in this picture, and that was ent infringement actions. It also aligns fee shifting in patent my story. The next thing that I would point out cases, which discourages frivolous It would be shameful and wrong to is that the bill’s discovery limitations cases. kick out the ladder from our next gen- are counterproductive. Limiting dis- Madam Chairman, there is a lot of eration of inventors, as this bill would covery prior to holding hearings to opportunity for job creation in the do; but if my story doesn’t compel you, construe patent claims and determine technology sector. The Innovation Acts please listen to the words of Dean their scope will delay litigation and is essential to protecting these tech- Kamen. Pick your favorite inventor in lead to even greater expenses for the nology companies from fraud and history—Tesla, Edison—and Dean parties. abuse. Kamen is that inventor of our time. Finally, H.R. 3309 mandates that the I want to thank Chairman GOOD- Perhaps you know him as the inventor Federal judiciary adopt a series of new LATTE for his leadership on this issue. of the Segway, but he has invented a

VerDate Mar 15 2010 00:19 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00004 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.005 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7513 dialysis machine, an insulin pump, and Mr. CONYERS. Madam Chair, I am Mr. CONYERS. I yield the gentleman a self-balancing wheelchair. These in- pleased now to yield 2 minutes to the an additional half minute. ventions have improved the lives of gentleman from New York, JERRY NAD- Mr. NADLER. Thank you. millions of people all over the world. LER, a senior member of the Judiciary I have other concerns as well when it Here is what Mr. Kamen has to say Committee. comes to some of the bill’s modifica- about this very legislation: Mr. NADLER. I thank the gentleman tions to the pleadings standards, but Adding uncertainty and cost to getting and for yielding. we must deal with the real problem of maintaining patents will be the largest sin- Madam Chairperson, I rise in reluc- patent trolls exploiting the current gle cause of the decline of innovation and, tant support of this bill, the Innova- legal system for illegitimate purposes. therefore, of the economy in this country tion Act. We must disrupt the business model of that I’ve seen in my lifetime. The bill addresses the issue of patent the patent troll. We must prevent the Mr. Kamen doesn’t just invent. He in- trolls suing large companies, small extortion of small businesses across spires the next generation to invent businesses, and retailers over vague America. with his America FIRST Robotics patents and using the cost of litigation I will support the bill today, but I Competition that millions of students as a weapon of extortion to secure set- want to encourage our friends in the have participated in. He inspires the tlement fees. The bill is real; the prob- Senate to do a better job in balancing next generation to invent with his ro- lem is real; and addressing it is impor- the competing interests. I urge them, botics contest. tant. in particular, to insist on their version The CHAIR. The time of the gen- The bill proposes to address the prob- of the bill and to not allow the House’s tleman has expired. lem by providing end user defendants ‘‘loser pays’’ provision into the final Mr. CONYERS. Madam Chair, I yield the ability to switch the suit to the bill that we vote on in the conference the gentleman an additional half manufacturer when confronted with report. minute. patent trolls; it increases the trans- Mr. GOODLATTE. Madam Chairman, Mr. MASSIE. I am scheduled to parency of patents and of the compa- at this time, it is my pleasure to yield speak at two of these robotic contests nies that own them; and it asks the ju- 2 minutes to the gentlewoman from dicial conference to review and amend in Kentucky this weekend, not to in- Washington State (Ms. DELBENE), a spire these kids to be politicians, but certain discovery rules. These are rea- distinguished member of the Judiciary to inspire them to be inventors. Should sonable changes to the current law Committee. which will help reduce the burden of this bill pass, should we kick the lad- Ms. DELBENE. Thank you, Mr. Chair. der out from our young inventors, it is patent trolls on our economy. Madam Chairman, from the Judici- Unfortunately, the bill does not deal going to be hard for me to face them ary Committee’s examination of abu- with the problem of the diversion of Saturday. sive patent litigation this year, it is user fees from the Patent Office. Unfor- I urge my colleagues to listen to the clear that there is a need for legislative tunately also, the authors of the bill inventors of America, who are pleading action. This issue has harmed compa- have grafted the Republican agenda of to them to oppose this bill. nies large and small, from big tech so-called ‘‘tort reform’’ onto the bill. Mr. GOODLATTE. Madam Chairman, companies to small retailers, res- These provisions may severely limit I am pleased to yield 1 minute to the taurants and credit unions, and in re- the ability of real inventors and of gentleman from Texas (Mr. cent years, even our public transit those with meritorious patent claims FARENTHOLD), who is a distinguished agencies have been targeted by these to obtain justice in our courts. They member of the Judiciary Committee. are deeply troubling and ought to be so-called ‘‘patent trolls.’’ Mr. FARENTHOLD. Thank you very In my home State of Washington, addressed by amendments to the bill much. King County Metro was hit with a law- now and improvements to the bill when Madam Chairman, the patent system suit in 2011 from ArrivalStar, a com- it is taken up by the Senate. is a vital part of our national identity. The most troubling provision is the pany that claimed infringement of a It stimulates American ingenuity, and ‘‘loser pays’’ provision. I oppose ‘‘loser patent that was so broad that it could it enhances our global competitiveness pays’’ provisions in general and in this potentially cover any system that stance. context as well. The reason is one of tracks a vehicle. With this lawsuit, Traditionally, patent holders have fairness. I don’t believe that only large King County’s innovative bus tracking asserted their patents against those corporations or the wealthiest mem- technology and a popular mobile appli- who produce infringing technologies, bers of society should have access to cation called ‘‘OneBusAway,’’ which re- but in recent years, abusive patent liti- justice. Already, the threat of the enor- lies on Metro’s data, was threatened. gation—patent trolling—has ballooned mous cost of litigation may act to pre- Even if there were a strong case to be as companies have emerged solely to vent individuals from pursuing even made for challenging the patent’s va- buy questionable and vaguely defined the most meritorious civil liability lidity, fighting a suit like this can run patents and to assert them against claims. For most individuals and small into the millions of dollars, all at tax- thousands of end users in the hope of businesses, the financial risk of having payer expense. So King County had to extracting licensing fees. Right now, to pay the other side’s costs and legal settle with ArrivalStar, costing tax- the patent trolls are going after hotels fees as well is one too great to bear no payers $80,000. and restaurants. It is the reason you matter how valid the claim. King County was not alone. At least don’t have Wi-Fi in more restaurants. It is simply not fair to unnecessarily 11 transit systems settled with Guess what? This is legalized extor- punish individuals with serious and ArrivalStar in response to lawsuits tion, and H.R. 3309 will significantly meritorious claims for seeking justice. over bus tracking systems rather than curb this problem. Though I have some Keep in mind, a person or a business undertake expensive and time-con- problems with section 9(c) in the PTO’s can have a legally legitimate dispute suming litigation. ability to apply the broadest reason- regarding fact and law and, yet, can This kind of litigation abuse does a able interpretation claim construction still ultimately lose the case. They disservice to the U.S. patent system standard in post grant reviews, this bill shouldn’t be unduly punished for try- and to our innovation economy. In the is a delicate compromise between com- ing to protect their interests in court. case of ArrivalStar, it harmed tax- peting interests. Furthermore, we don’t want to create a payers in King County and many other I hope we can deal with the 9(c) prob- situation in which experienced cor- agencies across the country. lem in the future, but overall, this is a porate defendants with enormous re- Because of the widespread impact of great bill. I am not going to let the sources and expert legal talent can abusive litigation like this, there is perfect get in the way of the doable. I bully injured plaintiffs into unfair set- broad support across industry and hope my colleagues who have minor ob- tlements due to the risks associated among public interest groups for meas- jections to the bill don’t do the same. with losing a potentially successful ures that reduce the financial incentive We have got to stop this abusive patent case. for bad actors to bring predatory pat- trolling litigation, and this bill will do The CHAIR. The time of the gen- ent suits, measures such as: curbing it. I urge my colleagues to support it. tleman has expired. the excessive costs of litigation and

VerDate Mar 15 2010 00:19 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00005 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.007 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7514 CONGRESSIONAL RECORD — HOUSE December 5, 2013 discovery abuse, making patent cases gotten—or taking it to court, which in the right direction as it relates to more efficient, and requiring plaintiffs could cost millions of dollars and put dealing with a patent troll problem to be precise in their claims of in- these businesses out of business. In that is adversely impacting small busi- fringement. The Innovation Act would 2011, patent trolls cost the American nesses, start-up companies, tech entre- do all of these things, and it does so by economy $29 billion. preneurs, innovators, and inventors in targeting abusive behaviors rather I want to skip the notes and go right New York City and all across the coun- than singling out any particular type to commonsense legislation. This is try. of patent holder or business model. what it is: In our judicial system, we must en- I am pleased to support this bill A veteran from Afghanistan came in sure that outcome is determined on the today, but I also believe we must con- to see me. He saved his money that he basis of the merits of a claim and not tinue to make improvements to the had earned while protecting this coun- the high cost of litigation in the patent bill as it moves forward in the legisla- try. He has got a little laptop that has context. When the latter occurs, inno- tive process. I will also be supporting communications with his printer, and a vation is hurt. several amendments on the floor today, troll is suing him, saying he violated We must also jealously guard the and I will continue to work with my the patent. My computer at home talks ability of legitimate patent-holders to colleagues in both Chambers to get leg- to my printer, and my kids’ computer vindicate their rights in court. With re- islation passed that strikes the right at home talks to my printer, so we spect to that concern, there is still sig- balance in protecting and strength- must be violating some patent of some nificant work to be done in the Senate, ening our patent system. sort. particularly as it relates to section 285. Mr. CONYERS. Madam Chair, I am This is abusive legislation. It is put- But notwithstanding that concern, this pleased to yield 11⁄2 minutes to the gen- ting our small business entrepreneurs bill, the Innovation Act, represents a tleman from Vermont (Mr. WELCH). out of business. I urge my colleagues to solid foundation upon which to address Mr. WELCH. Madam Chair, patent support this. the patent troll dynamic, which almost trolls are not about protecting patents. Mr. CONYERS. Madam Chair, I re- everyone in this Chamber agrees is a They are about trolling for easy money serve the balance of my time. significant problem. at the expense of hardworking people. Mr. GOODLATTE. Madam Chairman, For that reason, I urge my colleagues Patent trolling is a total and complete may I ask how much time is remaining to vote ‘‘yes.’’ Mr. CONYERS. Madam Chairman, I abuse of the patent system and is a on both sides? am pleased to yield 3 minutes to the total rip-off of hardworking people. The CHAIR. The gentleman from Vir- distinguished gentleman from Cali- Worst of all, it is a complete abuse of ginia has 20 minutes remaining, and the gentleman from Michigan has 18 fornia (Mr. ROHRABACHER). good people who are trying to do good Mr. ROHRABACHER. Madam Chair- things in their communities. Let me minutes remaining. Mr. GOODLATTE. At this time, man, we have certainly heard a lot give you a couple of examples. about trolls, haven’t we? Maybe we In Vermont, MyWebGrocer is a Web- Madam Chairman, it is my pleasure to yield 2 minutes to the gentleman from should understand exactly how that based company—innovative—located in ´ word came to be used in this debate. Winooski, Vermont, with over 180 em- California (Mr. CARDENAS). Mr. CA´ RDENAS. Madam Chair, I rise Top executives from one of the huge ployees. They have experienced six pat- today in support of the bipartisan In- electronics mega-companies, these ent troll attacks. One of the trolls novation Act, which makes important international corporations, were sit- claimed to have a patent—and get reforms to the U.S. patent system in ting around one day. One of them hap- this—on surfing the Web with a mobile order to curb abusive litigation. pened to tell me about the conversa- device. This was a stickup. I have heard from businesses of all tion they had, which is, How do we de- Another completely outrageous ex- sizes and from all industries in my dis- monize the small inventor who is com- ample is of a Vermont nonprofit. It as- trict about the added burden faced by ing at us because we are infringing on sists individuals with developmental too many companies at the hands of his patents? How do we do that? We disabilities. This nonprofit was tar- patent assertion entities, or patent can’t attack the small inventor be- geted by a patent troll that was de- trolls. Resources should be better spent cause people know that is where the manding payment for a supposed in- on business expansion, on job creation, progress of the United States comes fringement on scanning technology. on the development of new tools or from, is our independent inventors. We Can you imagine what it is like for a services, or on improved infrastructure can villainize the lawyers who rep- small nonprofit, doing good work, to instead of being used to pay settle- resent those small inventors. get a letter that is essentially a ments or even unnecessary licenses. They went around the room, and this stickup? That is what it is. The enactment of the Innovation Act executive tells me about this conversa- What these businesses and nonprofits would go a long way towards solving tion: Well, what should we call them? then have to decide is: Do they pay the this problem. What is a sinister, evil sound that can bounty or do they fight? We must support American innova- get away from the fact that we don’t This legislation is definitely needed tion, job creation and economic have our own arguments and our argu- so that our nonprofits and our small growth. I urge my colleagues to vote ments against this don’t stand up; that businesses can get on with the good ‘‘yes’’ on H.R. 3309, the Innovation Act. we are really attacking the little guy’s work they are doing without the threat As a former small business owner my- ability to prevent us from stealing his of abusive patent trolling. self, one of the things that can hinder patent? What word can we use that can Mr. GOODLATTE. Madam Chairman, job growth in any small business or in get people so they won’t see that? Let’s at this time, it is my pleasure to yield any community is unnecessary and call them ‘‘trolls.’’ 1 minute to the gentleman from Penn- Well, the guy who was talking to me, frivolous lawsuits. sylvania (Mr. MARINO), the vice chair- who was in the conversation, he was an man of the Courts, Intellectual Prop- b 0945 executive from one of these multi-na- erty, and the Internet Subcommittee. Mr. CONYERS. Madam Chairman, I tional corporations, he said, Well, I Mr. MARINO. Thank you, Mr. Chair- reserve the balance of my time. suggested patent pirates, but trolls man. Mr. GOODLATTE. Madam Chairman, sounded so much more sinister. Madam Chairman, I rise in support of at this time, it is my pleasure to yield That is what we hear today. Every H.R. 3309, the Innovation Act. 1 minute to the gentleman from New time you hear the word ‘‘troll,’’ what Each day, all across the United York (Mr. JEFFRIES), a distinguished you are hearing is a manipulation of States, small businesses and entre- member of the Judiciary Committee. this debate by some very special inter- preneurs are receiving abusive letters Mr. JEFFRIES. I thank the chair- est, powerful interest, who wants to that insist the recipient has somehow man for his stewardship and the rank- steal from the independent inventor. violated a patent. He or she is left with ing member for his legitimate expres- Everything in this bill that we are the option of complying with the let- sions of concern. talking about trolls actually impacts ter’s demands, such as by sending a Madam Chairman, this bill is a work on America’s independent inventors in check for $50,000—and all will be for- in progress, but it is a meaningful step a dramatic way.

VerDate Mar 15 2010 00:19 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00006 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.008 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7515 This is the greatest attack, the big- tor’s product; you take some due dili- Act was a very wise and considered gest attack, on the independent inven- gence. All this legislation is trying to piece of legislation. It recognized the tor in the 25 years that I have been a do, and do well, is to put some teeth fact that Federal Courts would be bet- Member of Congress. The fact is, these into what my colleague from California ter off, and the Federal body of law big multi-national corporations are in- disparaged: the trolls who will simply would be better off, if we leave it to the fringers. Every one of the big corpora- surf the Internet and send out litiga- Federal Courts to determine their rules tions behind this bill that is trying to tion alleging patent infringement with of procedure. have us ram this through the Congress products they have never looked at, The CHAIR. The time of the gen- has been found guilty of multiple in- understood, nor do they know if they tleman has expired. fringements against small inventors. fall under their patent. Mr. CONYERS. I yield an additional So they are going to get us—oh, no. We I have received damages under the minute to the gentleman from Georgia. are going to pass rules in the name of rule 11 sanction. I know what it takes Mr. JOHNSON of Georgia. So prior to stopping the trolls, which are really to share a completely frivolous case. I 1934, there was something called the going to undercut the small inventor in have prosecuted my own patents ‘‘conformity principle,’’ which held this country. This is a disaster. This is against infringers. I know what you that Federal Court procedures should the anti-innovation bill. This is the should do before you assert to some- be in accordance with the States let’s kowtow to these multi-national body ‘‘patent infringement.’’ wherein those Federal Courts sat; but electronic corporations like Google, This bill does one thing very well. It that proved to be unworkable, so the that have poured lots of campaign do- puts a little bit of teeth finally back rules enabling clause went into effect. nations into this issue on Capitol Hill into what the trolls use as a tool: file Since then, we have left it to the Fed- in the last few years. No, let’s watch a lawsuit and collect an amount of eral judiciary, through the Judicial out for the little guy. money because people don’t want to Conference, to promulgate rules of pro- What we have are the Philo spend it on litigation. cedure in both civil and criminal cases, Farnsworths or the Edisons, the people Just for once I would like us to un- and it has worked well. who actually came up with the changes derstand this is not sponsored by the Now we have section 6 of this ‘‘patent that have made America secure, made big guys. In fact, the little guy starting troll act’’ that imposes upon our judi- us prosperous, made our people com- a company, who gets a letter or a suit cial rules of procedure. These rules petitive with cheap labor overseas be- from a troll, is the person that this will have not been recommended by the Ju- cause we have got the technology. protect. I know this firsthand from dicial Conference. In fact, the Judicial Let’s make sure that we don’t smash more than three decades of being an in- Conference, led by Chief Justice Rob- this generation’s Edisons and Philo ventor. erts, is opposed to this change. There- Farnsworths. Mr. Chairman, I thank you for your fore, I think on constitutional grounds I oppose this bill. leadership on this issue. this should be defeated. Mr. GOODLATTE. Madam Chairman, Mr. CONYERS. Madam Chairman, I Mr. GOODLATTE. Madam Chairman, I yield myself 30 seconds to affirm what am pleased to yield 3 minutes to the at this time, it is my pleasure to yield we have said from the outset: this bill distinguished gentleman from Georgia 3 minutes to the gentleman from Ne- is designed for the little guy, both the (Mr. JOHNSON). braska (Mr. TERRY) for the purpose of innovator, the inventor, and the end- Mr. JOHNSON of Georgia. Madam engaging in a colloquy with the gen- user small business that are getting Chairman, I think it is time this morn- tleman from Utah (Mr. CHAFFETZ) and subjected to these trolling attacks. ing to reveal a little bit of truth. myself. No innovator, no inventor, no one We have had reports of trolls just Mr. TERRY. Madam Chairman, I rise who brings a lawsuit to perfect their running through the marketplace of for the purpose of entering into a col- claim should fear this legislation un- America. Trolls—you know those, the loquy with my friend from Utah join- less their claim has no reasonable basis ones that hang out under bridges and ing with me. in law or fact. It is only then that they scare you when you were a child. A Chairman GOODLATTE, I want to would be disadvantaged. In fact, most troll is just something that is, oh boy, thank you for your attention to the of the provisions in this bill are de- it is to be avoided. So all patent plain- very serious problem of patent asser- signed to lower the cost of litigation. tiffs bringing actions to protect their tion entities, otherwise known as ‘‘pat- The big guys can pay all they need to patents, we are now calling them ent trolls’’ here today. for litigation. The little guys can’t af- trolls. That is not true; that is not ac- On November 14, the House Energy ford to. By lowering the cost of litiga- curate. In fact, it is very inaccurate. and Commerce Committee held a hear- tion, we are going to create greater op- Only 5 percent of the patent cases ing entitled: ‘‘The Impact of Patent As- portunity, both for the innovators to that are filed in the courts of this sertion Entities on Innovation and the pursue their good claims and for the country could be considered done in Economy.’’ We heard from a variety of little guys on the receiving end who bad faith. So you could call those witnesses from industries including the get these outrageous demand letters on plaintiffs, I suppose, patent trolls. But food, hospitality, and tech, all of whom the other side who are having to pay 5 percent of the litigation does not had been targeted by vague, unfair, and outrageous costs or simply pay money. equate to ‘‘we are being overrun by deceptive patent troll demand letters. At this time, Madam Chairman, I am patent trolls.’’ That is just not correct. That hearing revealed significant pleased to yield 2 minutes to the gen- There is a problem with abusive liti- economic harm to Main Street busi- nesses in the economy caused by such tleman from California (Mr. ISSA), a gation. So how do you get at that? How distinguished member of the Judiciary do you—without closing the court- patent troll demand letters. These en- Committee. house door on plaintiffs seeking to as- tities engage in abusive practices that Mr. ISSA. Madam Chairman, my col- sert their rights to their patents, and often target small businesses because league from California a few moments those plaintiffs tend to be small enti- they don’t have the resources to fight ago spoke eloquently on behalf of the ties, mom-and-pop inventors back in back. small inventor, but he didn’t speak for the garage or down in the basement, At the markup for the Innovation me, and I am a small inventor. some 28-year-old ex-Harvard junior who Act, Mr. CHAFFETZ offered an amend- When I patented my first product, all dropped out and comes up with the ment that resulted in a sense of Con- I had were a couple of employees and next thing that explodes in the tech- gress in the bill before us today. That an idea. I presented a product that I nology field—how do we protect those sentence says: really wanted to make to a company folks who are trying to honestly pro- It is an abuse of the patent system and that I thought would buy it, and then tect their patents? against public policy for a party to send out a purposely evasive demand letter to end- I raced down to protect my rights and I submit that H.R. 3309 goes way be- users alleging patent infringement. succeeded. Ultimately, I was paid. yond what is necessary. It also has I know very well what you do if you some constitutional implications. The b 1000 assert patent infringement if you want Rules Enabling Act was passed by Con- As chairman of the House Energy and to prevail. You look at the competi- gress back in 1934. That Rules Enabling Commerce Committee, Subcommittee

VerDate Mar 15 2010 00:19 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00007 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.009 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7516 CONGRESSIONAL RECORD — HOUSE December 5, 2013 on Commerce, Manufacturing, and accept or reject his patent, how does GOODLATTE. I am glad we are here Trade with jurisdiction over these type that affect the trolls? It affects the so- today addressing these issues of abu- of consumer abuses, I join with your called trolls not at all. But I tell you sive lawsuits in the patent system. sentiments. We understand that time is what it does, it means that we have As has been mentioned by others, we of the essence. taken away a right of every inventor. do have a problem, it is widely agreed I yield to the gentleman from Utah The CHAIR. The time of the gen- to, among patent assertion entities, (Mr. CHAFFETZ) at this point. tleman has expired. sometimes called patent trolls. These Mr. CHAFFETZ. I thank Chairman Mr. CONYERS. I yield an additional lawsuits, these abusive lawsuits that TERRY for his good leadership and work 30 seconds to the gentleman. are brought, can easily cost $2 million on this, and certainly Chairman GOOD- Mr. ROHRABACHER. What we are to $10 million apiece, and that is why, LATTE for bringing this bill; and know- doing is taking away the right of every when a meritless lawsuit is threatened, ing that you, Mr. TERRY, are working independent inventor, a right that he it is easy to extort a smaller payment on a bill that I am going to whole- has had since 1836, to say that if a gov- to make it go away, and that is what heartedly support. ernment official in the Patent Office is we are trying to deal with here. Madam Chairman, we have received doing something illegal to deny him This is a big issue for small busi- support for this approach from many his patent, this small inventor has a nesses. Professor Colleen Chien of business groups, including the National right, has a right to go to the judges Santa Clara University, now with the Retail Federation, the National Res- and get a court action on it. What does White House, did a study and found taurant Association, the App Devel- that have to do with trolls? That is in that more than half of these suits were opers Alliance, the Direct Marketing this bill. against companies with less than $10 Association, the American Association We are taking away the rights of lit- million in annual revenue. of Advertising Agencies, the Associa- tle guys, small inventors, in the name And that is why this bill, it is not a tion of National Advertisers, the Food of getting the trolls, and we are mak- perfect bill, but why this bill has such Marketing Institute, the Mobile Mar- ing it impossible for small inventors to broad support. It is genuinely a bipar- keting Association, the National Asso- go after the big infringers, these multi- tisan bill. I am a cosponsor of this bill, ciation of Convenience Stores, the Na- national corporations which tell these along with the Congresswoman ANNA tional Grocers Association, the Amer- guys, Screw off; you can’t challenge us ESHOO, MIKE HONDA, PETER DEFAZIO, ican Hotel and Lodging Association, in the courts anyway. JARED HUFFMAN, and many others. At a Mr. CONYERS. Madam Chair, I re- just to name a few. These represent time when the country is saying, serve the balance of my time. ‘‘Can’t you just work together?’’ we hundreds of thousands of businesses Mr. GOODLATTE. Madam Chair, I have. Reasonable people can differ, and millions of employees across the yield myself 30 seconds to respond. country. The very provision the gentleman which is why we have this debate here It would be my hope that the House from California references, section 145, today. We have 40 members in the would expeditiously take up any de- is used by these very patent trolls to House Judiciary Committee. Only five mand letter legislation reported out of bypass the process. That is why, work- members voted against reporting this the House Energy and Commerce Com- ing in conjunction with the America bill out. That is remarkable. mittee under your leadership. I support Invents Act that has already been The White House has just issued a it. passed and this legislation, we will very strong statement of administra- Mr. TERRY. To that end, the Energy have an effective tool for those legiti- tive policy. They support this bill. So and Commerce subcommittee intends mate inventors, and we will stop the at a time when too often we are seen as to proceed through regular order, as trolls from getting out from under the the battling Bickersons, we have sup- soon as it is practicable, to examine bridge. port across the aisle with the White both the problem of vague patent de- I yield 1 minute to the gentleman House to do this. What does the bill do? It deals with mand letters and potential solutions from Texas (Mr. POE), a distinguished the Federal Trade Commission could member of the Judiciary Committee. pleading requirements. Oftentimes, implement. We took another step just Mr. POE of Texas. I thank the chair- these patent assertion entities will al- recently in a hearing with our FTC man for yielding. lege infringing, but they don’t, with commissioners this week on the patent Not all lawsuits in the patent busi- any particularity, say what is being in- trolls demand letter issues. ness are done by trolls, but some are, fringed. Mr. GOODLATTE. Madam Chairman, and these are obvious frivolous law- It does a change in attorneys’ fees I thank the gentleman from Nebraska suits on their face. The first time it ap- that matches the existing rule in copy- and the Energy and Commerce Com- pears in the system is when that small right. I oppose fee shifting in civil liti- mittee for their good work on this business owner gets that demand letter gation generally, but the Congress has, issue. He has my commitment to work in the mail, and it is nothing more on many occasions, narrowly cast fee on this important issue, and we must than legalized extortion where the let- shifting to deal with specific problems. continue to work to rein in the abuses ter basically says, You will settle for This would join that. I would note that of these demand letters. $10,000 or we will sue you and it will the shifts would not occur unless the I also look forward to working with cost you more money to defend your- party’s position is unreasonably justi- Mr. CHAFFETZ and Chairman UPTON of self; settle. What small business owners fied. The court is not to allow this shift the Energy and Commerce Committee, do, they are faced with that, many of if the party has a reasonable case in and I know that we can produce a good them settle or they go out of business. fact or law or, as my colleague, Mr. product to further address this issue That is what this legislation tries to JEFFRIES, had added, a severe economic within that committee’s jurisdiction. prevent, the extortion racket in the harm. Mr. CONYERS. Madam Chair, I yield patent infringement business, and it is I would note that this is supported 30 seconds to the gentleman from Cali- done by some people that we call trolls. from start-ups to big companies. fornia (Mr. ROHRABACHER). This legislation protects the small STARTUP INVESTORS NATIONWIDE SUPPORT Mr. ROHRABACHER. So we keep business owner. It gets the troll, the BROAD PATENT REFORM hearing that this is about trolls. And frivolous lawsuit folks out of the extor- DEAR CONGRESS: Each year, we invest hun- we just heard about a problem that is tion racket early on in the system. dreds of millions of dollars in software and being described, and it is a big problem, That is why this piece of legislation is information technology businesses and where you have got people coming into good for small business, and that is emerging mobile technologies. Together a retailer and suggesting that they with other investors, we commit more than why it is good for the patent industry. $1 billion annually in angel and venture cap- were going to sue them for using a And that’s just the way it is. piece of technology that the retailer is ital that ensures continuing growth of Mr. CONYERS. Madam Chair, I am young, high-tech companies employing 1.4 1 not really fully aware of. Okay, how is pleased to yield 2 ⁄2 minutes to the gen- million people. Collectively, we have in- taking away the rights of every Amer- tlelady from California (Ms. LOFGREN). vested in companies such as Netflix, Twitter, ican inventor through judicial review Ms. LOFGREN. Madam Chair, I Facebook, Dropbox, Palantir, Kickstarter, of what the Patent Office has done to thank Mr. CONYERS and Chairman and countless other technologies that power

VerDate Mar 15 2010 00:46 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00008 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.011 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7517 American businesses everywhere. We are the cisco, CA; Jason Mendelsohn, Foundry tage. They can sue, threaten to impose large fuel in America’s startup economy engine. Group, Boulder, CO; Michael Neril, Webb In- discovery costs that overwhelmingly fall on We write to urge comprehensive legislation vestment Network, San Francisco, CA. the accused infringer, and thereby extract to address the troubling growth and success Charlie O’Donnell, Brooklyn Bridge Ven- settlements from their targets that pri- of the patent troll business model. Young, tures, New York, NY; Alexis Ohanian, Angel marily reflect a desire to avoid the cost of innovative companies are increasingly Investor, New York, NY; Bijan Sabet, Spark fighting, rather than the chance and con- threatened and targeted by patent troll law- Capital, Boston, MA; Devin Talbott, Enlight- sequences of actually losing the suit. suits. In fact, the majority of companies tar- enment Capital, Washington, DC; Brett To be sure, PAEs can in theory play a ben- geted by patent trolls have less than $10 mil- Topche, MentorTech Ventures, Philadelphia, eficial role in the market for innovation and lion in revenue. And while big companies PA; Jorge M. Torres, Silas Capital, New some undoubtedly do. However, empirical paid the lion’s share of the $29 billion of di- York, NY; Hunter Walk, Homebrew, San evidence strongly suggests that many PAEs rect costs resulting from patent troll activi- Francisco, CA; David Weekly, Startup have a net negative impact on innovation. ties in 2011, the costs borne by small compa- Founder and Angel Investor, Palo Alto, CA; Technology companies—which, themselves, nies are a proportionately larger share of Fred Wilson, Union Square Ventures, New are innovators—spend tens of billions of dol- their revenues. York, NY. lars every year litigating and settling law- As a result, Congress and the Administra- suits filed by PAEs, funds that these tech companies might otherwise spend on addi- tion are considering multiple reform pro- PROFESSORS’ LETTER IN SUPPORT OF PATENT tional research and design. Surveys also re- posals. None alone will fix the problem, but REFORM LEGISLATION together they will make a substantial dent veal that a large percentage of these suits TO MEMBERS OF THE UNITED STATES CON- in what one famous troll recently called ‘‘a settle for less than the cost of fighting, and GRESS: We, the undersigned, are 61 professors multiple empirical studies conclude that new industry.’’ from 26 states and the District of Columbia Successful legislation should make it hard- PAEs lose about nine out of every ten times who teach and write about intellectual prop- when their claims are actually adjudicated er to be a patent troll, and easier for tar- erty law and policy. We write to you today geted businesses to protect and defend them- on their merits before a judge or jury. to express our support for ongoing efforts to The impact of these suits is made more selves. Legislation should: pass patent reform legislation that, we be- Make it easier to efficiently review patents troubling by the fact that PAE activity ap- lieve, will improve our nation’s patent sys- at the Patent Office, as an alternative to pears to be on the rise. Empirical studies tem and accelerate the pace of innovation in litigation. Increase transparency by requir- suggest that at least 40%, and perhaps as our country. ing patent trolls to specify, in complaints high as 59% or more, of all companies sued As a group we hold a diversity of views on for patent infringement in recent years were and demand letters, which patent and what the ideal structure and scope of our nation’s sued by PAEs. PAE suits were relatively rare claims are infringed, and specifically how intellectual property laws. Despite our dif- more than a decade ago, and they remain rel- the offending product or technology in- ferences, we all share concern that an in- atively rare today elsewhere in the world. fringes. creasing number of patent owners are taking More worrisome than these bare statistics Limit the scope of expensive litigation dis- advantage of weaknesses in the system to ex- is the fact that PAEs are increasingly tar- covery. geting not large tech firms, but rather small Require patent trolls to pay legal fees and ploit their rights in ways that on net deter, business well outside the tech sector. Studies other costs incurred by prevailing defend- rather than encourage, the development of suggest that the majority of companies tar- ants. new technology. geted by PAEs in recent years earn less than Protect end users of technology [e.g., wi-fi, Several trends, each unmistakable and well supported by empirical evidence, fuel $10 million in annual revenue. printers and scanners, and APIs) from being When PAEs target the numerous small liable for infringements by technology pro- our concern. First, the cost of defending against patent infringement allegations is companies downstream in the supply chain, viders. rather than large technology manufacturers Our Founders did not intend to incentivize high and rising. The American Intellectual upstream, they benefit in two ways. First, patent trolling in the Constitution—nor did Property Law Association estimates that the median cost of litigating a moderately-sized for every product manufacturer, there may Congress intend the Patent Act to promote be dozens or hundreds of retailers who sell this industry. Comprehensive legislation to patent suit is now $2.6 million, an amount that has increased over 70% since 2001. These the product, and hundreds or thousands of reduce abusive patent litigation will make customers who purchase and use the tech- the patent troll business model less attrac- and other surveys suggest that the expense of defending even a low-stakes patent suit nology. Patent law allows patent owners to tive, and will protect software, mobile and sue makers, sellers, or users. Suing sellers or information technology entrepreneurs. In will generally exceed $600,000. Moreover, the bulk of these expenses are incurred during users means more individual targets; some turn, our digital economy will continue to PAEs have sued hundreds of individual com- grow and so will our national economy. the discovery phase of litigation, before the party accused of infringement has an oppor- panies. And, more targets means more law- The undersigned: yers, more case filings, more discovery, and Gil Bickel, St. Louis Arch Angels, St. tunity to test the merits of the claims made against it in front of a judge or jury. thus more litigation costs overall to induce Louis, MO; David Bradbury, Vermont Center a larger total settlement amount. The magnitude and front-loaded nature of for Emerging Technologies, Burlington, VT; Second, compared to large manufacturers, patent litigation expenses creates an oppor- Glen Bressner, Originate Ventures, Beth- small companies like retailers are less famil- lehem, PA; Brad Burnham, Union Square tunity for abuse. Patentholders can file suit iar with patent law, are less familiar with Ventures, New York, NY; Jeff Bussgang, and quickly impose large discovery costs on the accused technology, have smaller litiga- Flybridge Capital, Boston, MA; Steve Case, their opponents regardless of the validity of tion budgets, and thus are more likely to Revolution Capital Washington, DC; Jeff their patent rights and the merits of their settle instead of fight. In fact, many small Clavier, SoftTechVC, Palo Alto, CA; Ron infringement allegations. Companies accused businesses fear patent litigation to such an Conway, SV Angel, San Francisco, CA; Mark of infringement, thus, have a strong incen- extent that they are willing to pay to settle Cuban, Investor in over 70 startups, Dallas tive to fold and settle patent suits early, vague infringement allegations made in law- TX; Peter Esperago, Cultivation Capital, St. even when they believe the claims against yers’ letters sent from unknown companies. Louis, MO. them are meritless. Like spammers, some patent owners have in- Brad Feld, Foundry Group, Boulder, CO; Historically, this problem has largely been discriminately sent thousands of demand let- Nicole Glaros, Techstars, Boulder, CO and a self-correcting one. In suits between prod- ters to small businesses, with little or no in- New York, NY; David Gold, Access Venture uct-producing technology companies, the tent of actually filing suit but instead with Partners, Westminster, CO; Greg Gottesman, party accused of infringement can file a hopes that at least a few will pay to avoid Madrona Venture Group Seattle, WA; Paul counterclaim and impose a roughly equal the risk. Graham, Y Combinator, Mountain View, CA; amount of discovery costs on the plaintiff. This egregious practice in particular, but Bill Gurley, Benchmark Capital, Menlo The costs, though high, are symmetrical also all abusive patent enforcement to some Park, CA; Reid Hoffman; Greylock Partners, and, as a result, tend to encourage tech- extent, thrives due to a lack of reliable infor- Menlo Park, CA; Kirk Holland, Access Ven- nology companies to compete in the market- mation about patent rights. Brazen patent ture Partners, Westminster, CO; Len Jordan, place with their products and prices, rather owners have been known to assert patents Madrona Venture Group, Seattle, WA; Scott than in the courtroom with their patents. they actually do not own or, conversely, to Levine, iSelect Fund, Clayton, MO. In recent years, however, a second trend— go to great lengths to hide the fact that they John Lilly, Greylock Partners, Menlo the rise of ‘‘patent assertion entities’’ actually do own patents being used in abu- Park, CA; Trevor Loy, Flywheel Ventures, (PAEs)—has disrupted this delicate balance, sive ways. Some patent owners have also Albuquerque and Sante Fe, NM; Chris Marks, making the high cost of patent litigation sought double recovery by accusing compa- High Country Venture, Boulder, CO; Dan even more problematic. PAEs are businesses nies selling or using products made by manu- Marriott, Stripes Group, New York, NY; that do not make or sell products, but rather facturers that already paid to license the as- Matt McCall, Pritzker Venture Capital specialize in enforcing patent rights. Be- serted patent. Still others have threatened Group, Chicago, IL and Los Angeles, CA; Jim cause PAEs do not make or sell any products or initiated litigation without first dis- McKelvey, Cultivation Capital, St. Louis; of their own, they cannot be countersued for closing any specific information about how, Andrew McLaughlin, BetaWorks, New York, infringement. As a result, PAEs can use the if at all, their targets arguably infringe the NY; Josh Mendelsohn, Hangar, San Fran- high cost of patent litigation to their advan- asserted patents.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00009 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.009 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7518 CONGRESSIONAL RECORD — HOUSE December 5, 2013 In short, high litigation costs and a wide- Ralph D. Clifford, University of Massachu- gentleman from Ohio (Mr. CHABOT), a spread lack of transparency in the patent setts School of Law; Professor Jorge L. distinguished member of the Judiciary system together make abusive patent en- Contreras, American University Washington Committee. forcement a common occurrence both in and College of Law; Professor Rebecca Curtin, Mr. CHABOT. Madam Chair, I want outside the technology sector. As a result, Suffolk University Law School; Professor to recognize and appreciate the leader- billions of dollars that might otherwise be Samuel F. Ernst, Chapman University Dale used to hire and retain employees, to im- E. Fowler School of Law; Professor Robin ship of the gentleman from Virginia prove existing products, and to launch new Feldman, University of California Hastings (Mr. GOODLATTE) for pushing this bill products are, instead, diverted to socially College of the Law; Professor William T. forward. It is very important for our wasteful litigation. Gallagher, Golden Gate University School of country. Accordingly, we believe that the U.S. pat- Law; Professor Jon M. Garon, Northern Ken- Our patent system is complex, and in ent system would benefit from at least the tucky University Chase College of Law; Pro- our litigious society, it is unfortunate following six reforms, which together will fessor Shubha Ghosh, University of Wis- that some bad actors are using that help reduce the cost of patent litigation and consin Law School; Professor Eric Goldman, complexity to take advantage of our expose abusive practices without degrading Santa Clara University School of Law. small businesses. Young, innovative inventors’ ability to protect genuine, valu- Professor Leah Chan Grinvald, Suffolk able innovations: University Law School; Professor Debora J. companies are increasingly threatened 1. To discourage weak claims of patent in- Halbert, University of Hawaii at Manoa De- and targeted by patent troll lawsuits, fringement brought at least in part for nui- partment of Political Science; Professor and the majority of companies targeted sance value, we recommend an increase in Bronwyn H. Hall, University of California by patent trolls have less than $10 mil- the frequency of attorneys’ fee awards to ac- Berkeley Department of Economics; Pro- lion in revenue. They target these cused patent infringers who choose to fight, fessor Yaniv Heled, Georgia State University small companies because the compa- rather than settle, and ultimately defeat the College of Law; Professor Christian Helmers, nies typically don’t have the resources Santa Clara University Leavey School of infringement allegations levelled against to fight back. So small businesses have them. Business; Professor Sapna Kumar, Univer- 2. To reduce the size and front-loaded na- sity of Houston Law Center; Professor Mary a choice: Do they settle with a patent ture of patent litigation costs, we rec- LaFrance, University of Nevada Las Vegas; troll or do they go out of business and ommend limitations on the scope of dis- William S. Boyd School of Law; Professor people lose jobs? That is the choice covery in patent cases prior to the issuance Peter Lee, University of California Davis that small businesses and start-ups are of a claim construction order, particularly School of Law; Professor Mark A. Lemley, forced to make—pay off a patent troll with respect to the discovery of electronic Stanford Law School; Professor Yvette Joy or shut their doors. materials like software source code, emails, Liebesman, Saint Louis University School of The Innovation Act levels the play- and other electronic communications. Law. Professor Lee Ann W. Lockridge, Louisiana ing field for small businesses and start- 3. To further protect innocent retailers and ups. It brings transparency to the pat- end-users that are particularly vulnerable to State University Paul M. Hebert Law Center; litigation cost hold-up, we recommend that Professor Brian J. Love, Santa Clara Univer- ent process and helps protect one of courts begin to stay suits filed against par- sity School of Law; Professor Glynn S. our founding constitutional principles: ties that simply sell or use allegedly infring- Lunney, Jr., Tulane University School of protect property and promote innova- ing technology until after the conclusion of Law; Professor Phil Malone, Stanford Law tion. parallel litigation between the patentee and School; Professor Mark P. McKenna, Notre These trolls do not create products. the technology’s manufacturer. Dame Law School; Professor Michael J. They do not create jobs. They create 4. To facilitate the early adjudication of Meurer, Boston University School of Law; headaches, and at a significant cost to patent infringement suits, we recommend Professor Joseph Scott Miller, University of Georgia Law School; Professor Fiona M. our economy. It was $80 billion in 2011 that patentees be required to plead their in- alone—$80 billion. fringement allegations with greater speci- Scott Morton, Yale University School of ficity. Management; Professor Lateef Mtima, How- It is said that sunlight is the best And finally, to increase transparency and ard University School of Law; Professor Ira disinfectant. This bill provides sunlight confidence in the market for patent licens- Steven Nathenson, St. Thomas University that effectively sanitizes the shadowy ing, we recommend: School of Law. abuse of patent litigation. Madam 5. that patentees be required to disclose Professor Laura Lee Norris, Santa Clara Chair, the Innovation Act is a good and keep up-to-date the identity of parties University School of Law; Professor Tyler T. first step in protecting our small busi- with an ownership stake or other direct fi- Ochoa, Santa Clara University School of Law; Professor Sean A. Pager, Michigan nesses and entrepreneurs from this nancial interest in their patent rights, and type of abuse. I urge my colleagues to 6. that Congress consider additional legis- State University College of Law; Professor lation designed to deter fraudulent, mis- Cheryl B. Preston, Brigham Young Univer- support the bill. leading, or otherwise abusive patent licens- sity J. Reuben Clark Law School; Professor Mr. CONYERS. Madam Chair, I am ing demands made outside of court. Jorge R. Roig, Charleston School of Law; pleased now to yield 3 minutes the gen- In closing, we also wish to stress that as Professor Jacob H. Rooksby, Duquesne Uni- tlelady from Texas (Ms. SHEILA JACK- scholars and researchers we have no direct versity School of Law; Professor Brian Rowe, SON LEE), an effective member of the financial stake in the outcome of legislative Seattle University School of Law & Univer- Judiciary Committee. efforts to reform our patent laws. We do not sity of Washington Information School; Pro- Ms. JACKSON LEE. Madam Chair, I write on behalf of any specific industry or fessor Matthew Sag, Loyola University of Chicago School of Law; Professor Pamela thank the gentleman from Michigan trade association. Rather, we are motivated for his leadership, and I likewise thank solely by our own convictions informed by Samuelson, University of California Berke- years of study and research that the above ley School of Law; Professor Jason Schultz, the chairman for his leadership. proposals will on net advance the best inter- New York University School of Law. The discourse in debate on the floor ests of our country as a whole. We urge you Professor Christopher B. Seaman, Wash- of the House is not evidencing the to enact them. ington and Lee University School of Law; unity, the unanimity that members of Professor Carl Shapiro, University of Cali- Sincerely, the House Judiciary Committee and, I Professor John R. Allison, The University fornia Berkeley Haas School of Business; venture to say, of this body have with of Texas at Austin, McCombs School of Busi- Professor Lea Shaver, Indiana University Robert H. McKinney School of Law; Pro- respect to innovation and competition ness; Professor Clark D. Asay, Penn State and the idea of protecting our small in- University Dickinson School of Law (vis- fessor Jessica Silbey, Suffolk University Law School; Professor Christopher Jon ventors. And so I would offer myself iting); Professor Jonathan Askin, Brooklyn Sprigman, New York University School of and many others as a champion for this Law School; Professor Gaia Bernstein, Seton Law; Professor Madhavi Sunder, University Hall University School of Law; Professor concept that we are greatest when we of California Davis School of Law; Professor James E. Bessen, Boston University School are protecting and coddling and grow- Toshiko Takenaka, University of Wash- of Law; Professor Jeremy W. Bock, The Uni- ing the inventive mind of America and ington School of Law; Professor Sarah Tran, versity of Memphis Cecil C. Humphreys our small inventors. Southern Methodist University Dedman School of Law; Professor Annemarie Bridy, The Innovation Act has a wonderful School of Law; Professor Catherine Tucker, University of Idaho College of Law; Professor Massachusetts Institute of Technology Sloan name, and I congratulate Chairman Irene Calboli, Marquette University Law School of Management; Professor Jennifer GOODLATTE for his interest and com- School; Professor Michael A. Carrier, Rut- M. Urban, University of California Berkeley mitment to this process. We have al- gers School of Law, Camden; Professor Ber- School of Law; Professor Samson Vermont, nard Chao, University of Denver Sturm Col- ways worked in a collaborative and bi- Charlotte School of Law (visiting). lege of Law. partisan manner on the Judiciary Com- Professor Andrew Chin, University of Mr. GOODLATTE. Madam Chair, it is mittee as it relates to intellectual North Carolina School of Law; Professor my pleasure to yield 2 minutes to the property and competition.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00010 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.011 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7519 Today, however, our disagreement, if What you have here are hugely so- Mr. CONYERS. Madam Chair, I re- you will, is not on the underlying con- phisticated, well-funded patent asser- serve the balance of my time. cept but on a very crucial process that tion entities across America; and they Mr. GOODLATTE. Madam Chair, is not in keeping with the mind-set of did file 62 percent of the patent litiga- may I inquire as to how much time is the Founding Fathers. I imagine that tion, not 5 percent, as we heard earlier remaining on each side. patent law got intimately engaged in asserted by one of my colleagues. The The CHAIR. The gentleman from Vir- the constitutional process because of a payoff here is that if you pay us $50,000, ginia has 51⁄2 minutes remaining, and young man by the name of Benjamin we won’t drag you through endless the gentleman from Michigan has 41⁄2 Franklin, an inventor. He foresaw a court proceedings that will cost you $1 minutes remaining. great America and the need to be able million or more. All they have to do is Mr. GOODLATTE. Madam Chair, it is to encourage those in garages and assert something very vague, such as now my pleasure to yield 11⁄2 minutes maybe by candlelight looking to we own this patent and you are infring- to the gentleman from Colorado (Mr. change the landscape of the lives of ing on it. That is it. That is all they POLIS). those who live in that country and now have to assert. Mr. POLIS. Madam Chairwoman, I have lived and do live in the greatest It is up to the small business to fig- thank the gentleman from Virginia. Nation in the world. ure out what that infringement is, When we look at the cost, not just of And so the question is, on H.R. 3309, which means they have to hire attor- litigation, but of companies having to for all of our friends that are making neys, they have to go through dis- consult with lawyers at times because their decisions, whether or not this is a covery, which is an incredibly lengthy of completely frivolous letters that bill before its time and whether or not and expensive process. I found out they get that are vague with regard to this question that we have before us, about this in my district while visiting what the abuses are, the damage is not this bill, truly stops the trolls, as this a small software firm with less than 100 only to the company that receives the advertisement that was not placed by people that was about to launch a new message; the damage is to all con- me but put in the newspaper to suggest product, and the owner told me it is sumers. The extra price is simply that the trolls may not be the ugly going to be delayed because I had to passed along to all of us who use goods beast, but it may be the way this bill, hire new employees to launch this and services in a digital economy. This H.R. 3309, is written. product, but I have got a shadow over bill makes an important step forward Because, in fact, the small guy does the business right now. I said, What is for bringing our patent process into the pay. In fact, the small inventor is not that? The owner said he had been sued 21st century, taking into account dig- protected. In fact, the pleadings are over a patent troll. They are claiming ital innovation. difficult. In fact, the early days of Ma- that this very simple, common thing There is a long way to go. When our dame C.J. Walker, who invented hair that is part of their software is their patent system was first put together lotion for black women; or Frederick patent and they must pay them $200,000 for mechanical innovation, for which it McKinley Jones, who invented the to make them go away. He said, I can’t still works, people didn’t even know automatic refrigeration system for do an expansion and $200,000. what software or biological innovation long-haul trucks; or Lewis Latimer, His company can’t be named because was. We have come a long way. I think who invented less expensive and more these patent trolls are so aggressive. we have learned a lot over that time. efficient, long-lasting light bulbs; or When NPR ran a story about this—and One thing we have learned is that we maybe even the early days of giant one company was featured with an need to fine-tune how software and dig- companies that are now known to live egregious story of one of these patent ital innovation interact with our intel- in places like Silicon Valley, from trolls, one of these blackmailers. They lectual property protections. Yahoo to Google, that started in the went public, and then they imme- This bill takes an important step in earliest moments of their beginning, diately got a pile of new assertions on this direction. While it doesn’t wholly small, maybe in a Harvard dorm room, them by patent trolls. The patent fix our patent system, it will undeni- or someone else’s dorm room, I think trolls have lots of attorneys, lots of ably deter abusive patent suits that are the question becomes: Are these indi- money. It is a very lucrative extortion brought by patent entities and trolls viduals protected? racket to go out and do this. that raise prices for consumers, de- b 1015 Some companies will fight. EMC out stroy jobs, are particularly onerous on According to the research that we of Massachusetts fought. The claims start-up businesses and entrepreneurs, have done, small investors are not pro- were totally specious, but they fought. and have essentially a tax across our tected. This is what it takes. They had to go to entire economy on innovation and job I would just say, Madam Chair, that this one district in Texas where all growth. I would ask for more time; and if we these cases are heard. They had to go I strongly encourage my colleagues want to do some work, let’s pass H.R. to one hotel and rent it for their team. to support this bill, and I appreciate 15, comprehensive immigration reform, The electricity wasn’t adequate. They the good work of Representative GOOD- because that is ready to pass. didn’t have broadband. They had to in- LATTE and Representative LOFGREN in Mr. GOODLATTE. Madam Chairman, stall all that so they could be there and bringing this bill to us on the floor it is now my very sincere pleasure to defend themselves because no one goes today. yield 3 minutes to the gentleman from there to defend themselves against Mr. CONYERS. Madam Chairwoman, Oregon (Mr. DEFAZIO), the lead Demo- these patent trolls. It is too expensive. we are ready to close on this side, and cratic cosponsor of this legislation who They just pay the bribes. I reserve the balance of my time. came to me with his ideas at the begin- They went there, and it cost them Mr. GOODLATTE. Madam Chair- ning of this Congress and has worked over $2 million. The jury was out less woman, it is my pleasure to yield 1 ad- with me throughout this Congress on than 10 minutes because it was a to- ditional minute to the gentleman from this legislation. tally specious claim. Most things don’t Utah (Mr. CHAFFETZ). Mr. DEFAZIO. Madam Chairwoman, I go that far because most people have to Mr. CHAFFETZ. Madam Chair- thank the chairman for his tremendous pay because they can’t afford the dis- woman, I thank Chairman GOODLATTE, efforts on this. I believe this is an im- ruption or the litigation; or other and I thank Members on both sides of provement over the SHIELD Act, times after they are halfway through the aisle for working on this. In the which JASON CHAFFETZ and I authored paying for the litigation, the patent as- 112th Congress, I worked closely with a couple of years ago. sertion entities drop their false claims. Congressman DEFAZIO on the SHIELD Here is the thing: we have got a na- Some people are saying we are clos- Act, but a much better bill is before us tionwide protection racket going on ing the courthouse door, we are barring today. here. It is a little more sophisticated litigation here. In fact, the standard is I want people to understand the grav- than the gang that says, Hey, we are no reasonable basis in law and fact. ity of the problem and who is also going to smash the windows of your Universities and innovators don’t bring being attacked. I find this fascinating. store unless you pay us 50 bucks a those kinds of suits. Patent trolls do. Fifty-five percent of troll suits involve week. Stop the patent trolls. companies with annual revenues of $10

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00011 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.012 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7520 CONGRESSIONAL RECORD — HOUSE December 5, 2013 million or less. Yes, the Microsofts and being a work in progress. The result of try to deal with a 20 percent problem the Oracles and the really big compa- that is that the work will be done on or a 5 percent problem, at most. nies out there are going to be in con- this bill by the United States Senate. Mr. GOODLATTE. Madam Chairman, stant flux and in points of litigation, They will write this bill. We won’t I yield myself the balance of my time. but it is really these small companies write it because we didn’t take the In closing, Madam Chairman, I want that are getting bombarded. time to do what we should have done in to thank my fellow Judiciary col- In fact, if you look since 2005, there the Judiciary Committee to refine this leagues and their staffs who have de- are literally four times as many troll bill. voted much time, energy, and intellect suits going through the patent system I stood shoulder to shoulder with the to this project. We have worked to- right now than there were in 2005. They former director of the Patent and gether for the common goal of com- are being extorted. This helps solve it. Trademark Office 2 years ago, David prehensive patent litigation reform for This is why I am so enthusiastic in Kappos, and this is what he says in an the past decade. supporting this bill. op-ed piece today: While some of us still have dif- I appreciate the bipartisan support Our news is peppered these days with re- ferences over individual items, I want on this. It does solve a very real prob- ports of ‘‘patent trolls,’’ dark, ugly creatures these Members to know that I appre- lem. The majority of the problem is for shaking down innocent companies based on ciate their contributions to the project companies with annual revenues of less absurd claims of patent infringement. Con- and I value their friendship. than $10 million. gress should quickly pass legislation to cur- I also want to particularly thank tail this abusive behavior. However, some Mr. CONYERS. Madam Chairwoman, Representatives HOWARD COBLE, ZOE are using the need to address the patent troll I continue to reserve the balance of my issue as cover to unnecessarily weaken our LOFGREN, and PETER DEFAZIO for serv- time. Nation’s patent laws. If passed in this cur- ing as lead sponsors of this legislation Mr. GOODLATTE. Madam Chair- rent form, the focus of legislative discussions and, most particularly, Congress- woman, I am pleased to yield an addi- would undermine U.S. innovation and job woman LOFGREN, who worked so hard tional 30 seconds to the gentleman creation. with us in the markup process in the from Pennsylvania (Mr. MARINO), the That is what the former director of Judiciary Committee. vice chair of the Intellectual Property the Patent and Trademark Office says In the Senate, we have worked close- Subcommittee. because we haven’t done what we ly with Senators LEAHY, GRASSLEY, Mr. MARINO. Madam Chairwoman, I should have done. CORNYN, HATCH, LEE, and others. I have been involved in working on pat- We set out to solve a problem dealing want to thank them and their staffs for ent reform since I was elected and took with patent trolls, and there is an ar- their contributions to this effort. office here in 2011. This is not new. We gument about whether that is 5 per- Furthermore, I would like to thank have been working on this legislation if cent, 20 percent. The GAO says it is a the White House and the U.S. Patent not for several months, at least several maximum of 20 percent, regardless of and Trademark Office for working col- weeks where it has been up on the where these statistics are coming from. laboratively with us and providing im- Internet for people to see and for our We are imposing a burden on 100 per- portant technical assistance. colleagues to read. I am tired of hear- cent of the people in the patent litiga- I also want to thank both my full ing here in Congress we need more time tion system to deal with a problem committee and IP subcommittee staff and more time to do something. If busi- that at most is 20 percent of the litiga- for all of their hard work on this im- nesses operated the way Congress did, tion in our system. Everybody is going portant legislation, and most particu- they would be out of business. to pay the price of this bill if it goes larly, Vishal Amin, counsel to the sub- Finally, this is a quintessential ex- forward in its current form. That is the committee. ample of us getting off our duff and problem I have with this. We have a This bill is something I consider cen- doing something in a reasonable problem. tral to U.S. competitiveness, job cre- amount of time that is going to help Patent trolls are a problem, but you ation, and our Nation’s future eco- small business owners. As we stand can’t define what a patent troll is; and nomic security. The Innovation Act is here and speak, more and more are in order to deal with patent trolls, we the product of much negotiation and being put out of business because of are imposing a burden on the other compromise. This bill builds on our ef- trolls. people in the litigation system who are forts over the past decade. It can be Mr. CONYERS. Madam Chairwoman, not patent trolls. That is unfair. We said that this bill is the product of how much time remains? are imposing a burden on small years of work. We have worked with The CHAIR. The gentleman from innovators because they will fear that Members of both parties in both the Michigan has 41⁄2 minutes remaining. they will lose a lawsuit and end up pay- Senate and the House, with stake- Mr. CONYERS. Madam Chairwoman, ing exorbitant costs of the people who holders from all areas of our economy, I am pleased now to yield such time as they litigated against, even though and with the administration and the he may consume to the gentleman their claim was a legitimate claim; and courts. from North Carolina (Mr. WATT), a sen- they will spend extra money to litigate To ensure an open, deliberative, and ior member of the committee who has about whether they should have to pay thoughtful process, we held several worked on this assiduously for a num- the cost. Millions of dollars will be hearings and issued two public discus- ber of years. spent litigating about whether the fees sion drafts in May and September of Mr. WATT. Madam Chairwoman, I should be shifted or not, and that is not this year, which led to the formal in- thank the gentleman for yielding. the way we have done this in our troduction of the Innovation Act in Oc- I am pained to be here today in oppo- American system. tober. sition to this bill. I stood shoulder to The problem is we haven’t done any- The Innovation Act takes meaningful shoulder with the chair of our full com- thing in this bill—and you have heard steps to address the abusive practices mittee 2 years ago in patent reform it discussed in the debate up to this that have damaged our patent system after working almost 6 years to find point—about the real problem here, and resulted in significant economic consensus on a patent bill that moved which is people who are writing de- harm to our Nation. This bill will help our Nation forward. mands on little people out in the grow America’s innovation economy. We are here this time a maximum of stream of commerce. That is before Madam Chairman, I urge my col- 6 months into the process, and we they ever get to litigation. This bill leagues to support H.R. 3309, and I yield haven’t done our due diligence because says nothing about demand letters. back the balance of my time. we have heard all morning people com- 1030 [Inventors listed on nearly 200 patents call ing to the floor and saying this is a b on Congress to pass legislation to fix the work in progress. I thought the place We are going to concede that, we say, patent troll problem, Nov. 19, 2013] we did works in progress was in our to the Commerce Committee. PATENT HOLDERS URGE COMPREHENSIVE committee system. Well, what is this bill going to do? It PATENT REFORM Here we are on the floor with a bill is going to encourage a burden on ev- SAN FRANCISCO.—Fifty inventors, tech- that everybody is bragging about it erybody in the litigation system as we nologists and entrepreneurs joined Engine

VerDate Mar 15 2010 02:29 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00012 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.014 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7521 Advocacy and the Electronic Frontier Foun- ents as a tool for extortion is undermining Distinguished Engineer at Sun Micro- dation (EFF) today in requesting that Con- America’s technological progress; patent systems; Led the design and implementation gress immediately pass meaningful patent trolls are collecting taxes on innovation by of numerous Java platform features. reform legislation to curb the growing pat- extracting billions of dollars in dubious li- Rick Adams—3 patents; Founder of UUNET ent troll problem. censing fees, and wasting the time and man- Technologies, the first commercial Internet The signatories are collectively listed as agement resources of creative businesses. provider. inventors on nearly 200 patents, many of Many of us would have achieved much less in Brandon Ballinger—2 patents, 10 applica- which cover software inventions. They ex- our careers if the trolling problem had been tions; Co-founder of Sift Science, a company pressed support for patent reform. Congress as dire in past decades as it is now. that helps fight fraud through machine- is currently pursuing several approaches Some legislative proposals under current learning; Former software engineer at that have the potential to curb the chilling consideration would fix the trolling problem. Google. effect on innovation posed by trolls and im- These include: requiring that patent lawsuits Andrew Conway—1 patent, 2 applications; prove patent quality. actually explain which patents are infringed Founder & CEO of Silicon Genetics, a ‘‘Broad, vague patents covering software- by which aspects of a defendant’s tech- bioinformatics company (now part of type inventions—some of which we ourselves nology, and how; making clear who really Agilent); First to control a helicopter en- are listed as inventors on—are a malfunc- owns the patent at issue; allowing courts to tirely by GPS (and thus win 1995 AUVS con- tioning component of America’s inventive shift fees to winning parties, making it ra- test). machinery,’’ the inventors write. tional for those threatened with an egregious Derek Parham—1 patent, 2 applications; ‘‘This is particularly the case when those patent suit to actually fight against the Creator of Google Apps for Businesses; En- patents end up in the hands of non-prac- threat rather than paying what amounts to trepreneur, investor, and advisor. ticing patent trolls.’’ The inventors believe protection money; ensuring that those who James Gettys—1 patent, 1 application, 2 that ‘‘software patents are doing more harm purchase common, off-the-shelf technologies RFCs; Editor of the HTTP/1.1 specification than good,’’ and they urge Congress to pass are shielded if they are sued for using them; that underlies the World Wide Web; Co-au- legislation that would curb patent troll and increasing opportunities for streamlined thor of the X Window System. abuses, which pose an immediate threat to patent review at the patent office. Harry Hochheiser—1 patent, 1 application; innovation and the promise of technology. While subduing the trolling threat, these Professor of Biomedical Informatics at ‘‘It’s time to force these trolls to take re- proposed changes will not fix the software UPitt. sponsibility for the damage they cause with patent problem completely. Congress should Ian Lance Taylor—1 patent, 1 application; their dangerous claims,’’ said inventor Derek consider ways to stop these patents from Senior Staff Software Engineer at Google, Parham, who helped organize the letter. ‘‘We interfering with open standards and open Co-founder of Zembu Labs, and long time need legislation that will put a stop to the source software; from being claimed on prob- open source contributor. patent troll business model once and for all.’’ lems, rather than solutions; and from being Vincent C. Jones, PhD, PE—1 patent; 40 In addition to Derek, many prominent en- drafted so obscurely that they teach us noth- years of designing and building computer gineers and entrepreneurs signed the letter, ing and cannot be searched. Congress needs networks; published author in the field of including Twitter cofounder Evan Williams; to examine the very question of whether computer networking. Facebook co-founder Dustin Moskovitz; their net impact is positive. Jim Fruchterman—1 patent; CEO of former Principal Engineer at Qualcomm But for now, we urge you to implement Benetech, a nonprofit tech company; former Ranganathan Krishnan; and Quantcast’s co- simple and urgently necessary reforms. We rocket scientist and co-founder of Calera founder Paul Sutter. believe in the promise of technology and the Recognition Systems and RAF Technology, ‘‘The time for meaningful reform is now,’’ power of creation to increase access to infor- Inc. said Julie Samuels, EFF Senior Staff Attor- mation, to create jobs, and to make the Todd Huffman—company holds 1 Patent; ney and the Mark Cuban Chair to Eliminate world a better place. Please do not let patent CEO of 3Scan, utilizes a novel serial sec- Stupid Patents. ‘‘We hope Congress will hear trolls continue to frustrate that purpose. tioning technique, KESM (Knife Edge Scan- these engineers and inventors and so many The undersigned: ning Microscope) to create 3D models of others and pass legislation that ends the pat- Ranganathan Krishnan—30 patents; large volume tissue samples. ent troll problem once and for all.’’ Former Principal Engineer at Qualcomm; led Anselm Levskaya—1 application; Founder For the full open letter: https:// the software team building the aircraft of Cambrian Genomics, a company devel- www.eff.org/documentinventorslettersupport modems that now power GoGo in-flight Wi- oping a new technology pipeline to produce patentreform Fi; Data center architect for Zoho Corpora- fully synthetic DNA at a fraction of the cost Contacts: tion; Startup founder. of current approaches. Julie Samuels, Staff Attorney and The Paul Sutter—26 patents, 22 applications; Lorrie Cranor—1 application: Professor of Mark Cuban Chair to Eliminate Stupid Pat- Co-founder of Quantcast. Computer Science, Engineering, and Public ents, Electronic Frontier Foundation. Dr. Neil Hunt—14 patents; Chief Product Policy at Carnegie Mellon; Director of Eva Arevuo; Engine. Officer at Netflix. CyLab Usable Privacy and Security Labora- Justin Rosenstein—13 patents, 23 applica- tory. Mark Kohler—3 RFCs; Implemented the [Nov. 18, 2013] tions; Founder of Asana; Former Engineer- ing Lead at Facebook. IPv6 tunneling protocols RFC 2893, RFC 2473, We, the undersigned, are a group of inven- Dustin Moskovitz—2 patents; Co-Founder and RFC 3056 for HP–UX and other Unix op- tors, technologists and entrepreneurs. Many of Facebook and Asana. erating systems. of us have founded technology businesses; we Ev Williams—Entrepreneur, CEO of the Ob- John Vittal—3 RFCs; Creator of the first have invented many of the protocols, sys- vious Corporation, co-founder of Odeo, integrated email program (MSG) and the ini- tems and devices that make the Internet Blogger, Twitter, and Medium. tial ‘‘killer application’’ on the ARPAnet/ work, and we are collectively listed as the David S.H. Rosenthal—24 patents; Founder Internet; Developed email standards still in inventors on over 150 patents. of the LOCKSS program, aimed at long-term use today. We write to you today about the U.S. pat- preservation of web published materials. Dan McDonald—3 RFCs; IPsec and IPv6 ent system. That system is broken. Based on Frederick Baker—15 patents, 52 RFCs; pioneer, former project lead for Solaris/ our experiences building and deploying new Former chair of IETF [the standards body of OpenSolaris IPsec, Current Illumos RTI ad- digital technologies, we believe that soft- Internet tech); member to FCC TAC, BITAG vocate, and Principal Software Engineer for ware patents are doing more harm than and other bodies that advise the U.S. govern- Nexenta Systems; Co-author of RFCs 1751, good. Perhaps it is time to reexamine the ment on technology. 2367, 5879. idea, dating from the 1980s. that government- John H. Howard—10 patents; Researcher at Russell Nelson—3 RFCs; Ran the Clarkson issued monopolies on algorithms, protocols MIT, University of Texas, IBM, Carnegie (later Crynwr) Packet Driver Collection. and data structures are the best way to pro- Mellon, MERL, and Distinguished Engineer John Gilmore—1 RFC; Programmer, entre- mote the advancement of computer science. at Sun Microsystems. preneur (Sun Microsystems, Cygnus Solu- But that will be a complex task, and one Jon Callas—7 patents, 4 RFCs; Cryptog- tions); Free software author, maintainer, we don’t expect to happen quickly. Unfortu- rapher, technologist, entrepreneur; Co-found- and co-creator (GOB, GNU Tar, Binutils, nately, aspects of the problem have become er of PGP Corporation, Silent Circle and oth- GNU Radio, Gnash, OpenBTS); protocol de- so acute they must be addressed imme- ers. signer (RFC 951, BOOTP, which you use diately. Igor Kofman—6 patents, 7 applications; Co- whenever you connect to Ethernet or WiFi); Broad, vague patents covering software- founder of Hackpad Inc., a company that de- Angel investor, philanthropist. type inventions—some of which we ourselves velops next generation online collaboration Stephen Wolff—Builder of NSFNET as a are listed as inventors on—are a malfunc- tools; Former Engineer at YouTube/Google successor to ARPANET and for its transition tioning component of America’s inventive and Microsoft. to carrying commercial traffic, enabling the machinery. This is particularly the case Barbara Simons—5 patents; Fellow and Internet as we know it today; Internet Hall when those patents end up in the hands of Former President at Association for Com- of Fame Inductee—2013. non-practicing patent trolls. puting Machinery. Frode Hernes—VP of TV Product Manage- These non-practicing entities do not make Joshua Bloch—4 patents, 4 applications; ment and former VP of Product Development or sell anything. Their exploitation of pat- Former Chief Java Architect at Google and at Opera Software; Contributor to ISO/

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00013 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.014 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7522 CONGRESSIONAL RECORD — HOUSE December 5, 2013 CCITT and IETF standards within email di- 5442708 Computer network encryption/ 6023738 Method and apparatus for accel- rectories and security; Board member of the decryption device (Adams). erating the transfer of graphical images HbbTV Association; Currently active in the 5444782 Computer network encryption/ (Rosenthal). spacifications for the TV industry. decryption device (Adams). 6044222 System, method, and program prod- Dan Lang—VP, Intellectual Property at 5470223 Microprocessor controlled fuel and uct for loop instruction scheduling hardware Cisco Systems. ignition control for a fuel burning device lookahead (Simons). Jaan Tallin—Founding Engineer of Skype; (Fruchterman). 6065071 Method and apparatus for trapping Refused to sign patents while at Skype. 5600834 Method and apparatus for recon- unimplemented operations in input/output Megan Klimen—Co-founder of 3Scan. ciling different versions of a file (Howard). devices (Rosenthal). Matthew Goodman—Co-founder of 3Scan. 5619658 Method and apparatus for trapping 6081854 System for providing fast transfers Kodi Daniel—Co-founder of 3Scan. unimplemented operations in input/output to input/output device by assuring com- Mikki Barry—Co-founder of InterCon Sys- devices (Rosenthal). mands from only one application program re- tems Corporation, the first commercial 5623692 Architecture for providing input/ side in FIFO (Rosenthal). Internet applications company on the Mac output operations in a computer system 6098079 File version reconciliation using platform; Intellectual Property and IT At- (Rosenthal). hash codes (Howard). torney. 5638535 Method and apparatus for providing Jim DeLeskie—Founder and CM, Heimdall 6292938 Retargeting optimized code by flow control with lying for input/output op- Networks, previously Chief Architect Tata matching tree patterns in directed acyclic erations in a computer system (Rosenthal). Communications/Teleglobe; Sr. Engineer graphs (Simons). 5640456 Computer network encryption/ 6336186 Cryptographic system and method- internetMCI and contributor to IEEE and decryption device (Adams). ology for creating and managing crypto pol- IETF working groups. 5640591 Method and apparatus for naming Brandon Ross—Designer and builder of op- icy on certificate servers (Callas). input/output devices in a computer system erating service provider networks such as 6513032 Search and navigation system and (Rosenthal). MindSpring, NetRail, Internap and Comast; method using category intersection pre-com- 5652793 Method and apparatus for authen- Member of the North American Network Op- putation (Sutter). ticating the use of software (Rosenthal). erators Group (NANOG), the Internet Engi- 6584450 Method and apparatus for renting 5659750 Apparatus for context switching of neering Task Force (IETF); Founder of Net- items (Hunt). input/output devices in response to com- work Utility Force. 6594260 Content routing (Baker). mands from unprivileged application pro- Benjamin C. Pierce—Professor of Com- 6629198 Data storage system and method grams (Rosenthal). puter and Information Science at University employing a write-ahead hash log (Howard). 5685011 Apparatus for handling failures to of Pennsylvania; Fellow of the ACM; Lead 6738437 Symbol recovery from an oversam- provide a safe address translation in an im- developer of Unison, a widely used open- pled hard-decision binary stream (Krishnan). proved input/output architecture for a com- source file synchronization tool; Author. 6742044 Distributed network traffic load David Snigler—Led several successful puter system (Rosenthal). balancing technique implemented without projects as part of the Emerging Tech- 5696990 Method and apparatus for providing gateway router (Baker). nologies group at the University of Massa- improved flow control for input/output oper- 6744572 System and method for imaging an chusetts; Responsible for the design of sys- ations in a computer system having a FIFO object (3Scan). tems used for research and administration circuit and an overflow storage area (Rosen- 6775231. Dynamic weighted resource shar- throughout the UMass system. thal). ing (Baker). Dylan Morris—Co-founder and VP of Strat- 5721947 Apparatus adapted to be joined be- 6789125 Distributed network traffic load egy of Integrated Plasmonics, a technology tween the system I/O bus and I/O devices balancing technique implemented without startup in San Francisco operating at the which translates addresses furnished directly gateway router (Baker). intersection of semiconductors, bio- by an application program (Rosenthal). 6801811 Software-directed, energy-aware technology, and digital health. 5732087 ATM local area network switch control of display (Gettys). Robb Walters—Founder, CEO, President, with dual queues (Howard). 6820261 Inheritable thread-local storage Board Director, Integrated Plasmonics. 5740406 Method and apparatus for providing (Bloch). Andrew Binstock—Editor in Chief of Dr. fifo buffer input to an input/output device 6839895 Method of, system for, and com- Dobb’s; founded iText Software Corp.; pre- used in a computer system (Rosenthal). puter program product for providing effi- viously in charge of Global Technology Fore- 5740464 Architecture for providing input/ cient utilization of memory hierarchy casts at PricewaterhouseCoopers; pro- output operations in a computer system through code restructuring (Simons). grammer. (Rosenthal). 6915282 Autonomous data mining (Conway). Mary Shaw—Educator and researcher in 5745477 Traffic shaping and ABR flow con- 6928062 Uplink pilot and signaling trans- software engineering; ACM SIGSOFT Out- trol (Howard). mission in wireless communication systems standing Research Award for work in soft- 5751951 Network interface (Howard). (Krishnan). ware architecture; Fellow of the Institute for 5758182 DMA controller translates virtual I/ 7013458 Method and apparatus for associ- Electrical and Electronic Engineers, the As- O device address received directly from ap- ating metadata attributes with program ele- sociation for Computing Machinery, and the plication program command to physical I/O ments (Bloch). American Association for the Advancement device address of I/O device on device bus 7024381 Approach for renting items to cus- of Science. (Rosenthal). tomers (Hunt). Ernest E. [Lee] Keet—President of Van- 5764861 Apparatus and method for control- 7039001 Channel estimation for OFDM com- guard Atlantic Ltd., Former Chair, Intellec- ling context of input/output devices in a munication systems (Krishnan). tual Property Section, Software Industry As- computer system (Rosenthal). 7042857 Uplink pilot and signaling trans- sociation, ADAPSO; Board member and lead 5805930 System for FIFO informing the mission in wireless communication systems investor in high tech startups. availability of stages to store commands (Krishnan). The above have collectively contributed to which include data and virtual address sent 7062562 Methods and apparatus for content the invention of the following technologies: directly from application programs (Rosen- server selection (Baker). Patents: thal). 7080138 Methods and apparatus for content 4460974 Electronic computer with access to 5887174 System, method, and program prod- server selection (Baker). keyboard status information (Jones). uct for instruction scheduling in the pres- 7095790 Transmission schemes for multi-an- 4531185 Centralized synchronization of ence of hardware lookahead accomplished by tenna communication systems utilizing clocks (Simons). the rescheduling of idle slots (Simons). multi-carrier modulation (Krishnan). 4584643 Decentralized synchronization of 5887190 System for determining from a 7098815 Method and apparatus for efficient clocks (Simons). command storing in a storage circuit an ap- compression (Rosenthal). 4603380 DASD cache block staging (How- plication program which has initiated the 7159237 Method and system for dynamic ard). command to determine an input/output de- network intrusion monitoring, detection and 4706081 Method and apparatus for bridging vice address (Rosenthal). response (Callas). local area networks (Baker). 4809265 Method and apparatus for inter- 5909595 Method of controlling I/O routing 7171657 Method and apparatus for import- facing to a local area network (Baker). by setting connecting context for utilizing I/ ing static members of a class (Bloch). 4916605 Fast write operations (Howard). O processing elements within a computer 7263687 Object-oriented enumerated type 5073933 X window security system (Rosen- system to produce multimedia effects facility (Bloch). thal). (Rosenthal). 7292826 System and method for reducing 5127098 Method and apparatus for the con- 5918050 Apparatus accessed at a physical I/ rake finger processing (Krishnan). text switching of devices (Rosenthal). O address for address and data translation 7359728 Modified power control for reduc- 5187786 Method for apparatus for imple- and for context switching of I/O devices in tion of system power consumption menting a class hierarchy of objects in a response to commands from application pro- (Krishnan). hierarchical file system (Rosenthal). grams (Rosenthal). 7383439 Apparatus and method for facili- 5432824 Credit/rate-based system for con- 5924126 Method and apparatus for providing tating encryption and decryption operations trolling traffic in a digital communication address translations for input/output oper- over an email server using an unsupported network (Howard). ations in a computer system (Rosenthal). protocol (Callas).

VerDate Mar 15 2010 02:29 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00014 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.016 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7523 7401159 Distributed network traffic load 786772 Protecting data integrity in an en- 8386621 Parallel streaming (Hunt). balancing technique implemented without hanced network connection (Sutter). 8411560 TCP selection acknowledgements gateway router (Baker). 789561 Method and system for dynamic net- for communicating delivered and missing 7403910 Approach for estimating user rat- work intrusion monitoring, detection and re- data packets (Sutter). ings of items (Hunt). sponse (Callas). 8417476 Dynamic randomized controlled 7408914 Time-hopping systems and tech- 7907898 Asynchronous inter-piconet routing testing with consumer electronics devices niques for wireless communications (Krishnan). (Hunt). (Krishnan). 7912457 Methods and apparatus for creation 8433814 Digital content distribution system 7437558 Method and system for verifying and transport of multimedia content flows and method (Hunt). identification of an electronic mail message (Krishnan). 8438280 Detecting and reporting on con- (Baker). 7953000 Mechanism to improve preemption sumption rate changes (Sutter). 7447481 System and method for reducing behavior of resource reservations (Baker). 8443056 Client-server signaling in content rake finger processing (Krishnan). 7953794 Method and system for distribution networks (Hunt). 7450963 Low power dual processor architec- transitioning between synchronous and 8448057 Audience segment selection (Sut- ture for multi mode devices (Krishnan). asynchronous communication modes ter). 7463576 Channel estimation for OFDM com- (Kofman). 8462630 Early generation of acknowledge- munication systems (Krishnan). 7958529 Method of sharing an item rental ments for flow control (Sutter). 7493133 Power control in ad-hoc wireless account (Hunt). 8464237 Method and apparatus for opti- networks (Krishnan). 7969876 Method of determining path max- mizing compilation of a computer program 7515595 Network using encoded trans- imum transmission unit (Sutter). (Taylor). missions and forwarding (Krishnan). 7978710 Synchronous inter-piconet routing 872930 Methods and apparatus for creation 7515924 Method and module for operating (Krishnan). and transport of multimedia content flows independently of a remote terminal if an in- 8004973 Virtual inline configuration for a (Krishnan). coming pilot signal is not detected within a network device (Sutter). 8478590 Word-level correction .of speech time period and enabling a pilot signal trans- 8015067 Deleted account handling for hosted input (Ballinger). mission (Krishnan). services (Parham). 8489135 Network topology formation 7519371 Multi-hop communications in a 8019351 Multi-hop communications in a (Krishnan). wireless network (Krishnan). wireless network (Krishnan). 8489889 Method and apparatus for restrict- 7529780 Conflict management during data 8024652 Techniques to associate informa- ing access to encrypted data (Callas). object synchronization between client and tion between application programs 8493955 Interference mitigation mechanism server (Rosenstein). (Kofman). to enable spatial reuse in UWB networks 7536641 Web page authoring tool for struc- 8028024 System and method of instant mes- (Krishnan). 8494852 Word-level correction of speech tured documents (Rosenstein). saging between wireless devices (Krishnan). 7542471 Method of determining path max- 8050271 Protecting data integrity in an en- input (Ballinger). 8504905 Audience segment selection (Sut- imum transmission unit (Sutter). hanced network connection (Sutter). 7546252 Approach for managing rental 8077632 Automatic LAN/WAN port detec- ter). 8553699 Wavefront detection and items across a plurality of distribution loca- tion (Sutter). disambiguation of acknowledgements (Sut- tions (Hunt). 8086524 Systems and methods for trans- ter). 7551620 Protecting data integrity in an en- action processing and balance transfer proc- 8554832 Server side user interface simula- hanced network connection (Sutter). essing (Sutter). tion (Moskovitz, Rosenstein). 7593943 Method and system for synchro- 8150919 Method and system for 8566353 Web-based system for collaborative nizing multiple user revisions to a shared ob- transitioning between synchronous and generation of interactive videos (Kofman). ject (Kofman). asynchronous communication modes 8572477 Web-based incremental computing 7606326 Transmission schemes for multi-an- (Kofman). (Moskovitz, Rosenstein). tenna communication systems utilizing 8155444 Image text to character informa- Applications: multi-carrier modulation (Krishnan). tion conversion (Kofman). 20020065919 Peer-to-peer caching network 7616638 Wavefront detection and 8156554 Method and system for verifying for user data (Taylor). disambiguation of acknowledgments (Sut- identification of an electronic mail message 20040049763 Method and apparatus for im- ter). (Baker). porting static members of a class (Bloch). 7617127 Approach for estimating user rat- 8161368 Distributed processing when editing 20040049764 Object-oriented enumerated ings of items (Hunt). an image in a browser (Rosenstein). type facility (Bloch). 7630305 TCP selective acknowledgements 8176120 Web-page authoring tool for auto- 20040049766 Method and apparatus for asso- for communicating delivered and missed matic enrollment in advertising program ciating metadata attributes with program data packets (Sutter). (Rosenstein). elements (Bloch). 7631252 Distributed processing when editing 8208972 Low power dual processor architec- 20050005024 Method of determining path an image in a browser (Rosenstein). ture for multi mode devices (Krishnan). maximum transmission unit (Sutter). 7631253 Selective image editing in a brows- 8230318 Selective image editing in a brows- 20050058131 Wavefront detection and er (Rosenstein). er (Rosenstein). disambiguation of acknowledgments (Sut- 7631323 Method of sharing an item rental 8233392 Transaction boundary detection for ter). account (Hunt). reduction in timeout penalties (Sutter). 20050060426 Early generation of acknowl- 7634715 Effects applied to images in a 8238241 Automatic detection and window edgements for flow control (Sutter). browser (Rosenstein). virtualization for flow control (Sutter). 20050063302 Automatic detection and win- 7640427 System and method for secure elec- 8245123 Effects applied to images in a dow virtualization for flow control (Sutter). tronic communication in a partially keyless browser (Rosenstein). 20050063303 TCP selective acknowledge- environment (Callas). 8245277 Universally usable human-inter- ments for communicating delivered and 7650387 Method and system for managing action proof (Hochheiser). missed data packets (Sutter). storage on a shared storage space (Baker). 8259729 Wavefront detection and 20050063307 Flow control system architec- 7656799 Flow control system architecture disambiguation of acknowledgements (Sut- ture (Sutter). (Sutter). ter). 20050074007 Transaction boundary detection 7657037 Apparatus and method for identity- 8271338 Approach for estimating user rat- for reduction in timeout penalties (Sutter). based encryption within a conventional pub- ings of items (Hunt). 20050120329 Method and apparatus for sup- lic-key infrastructure (Callas). 8310928 Flow control system architecture porting typesafe software design (Bloch). 7664140 Early termination of low data rate (Sutter). 20050222779 Detecting recessive diseases in traffic in a wireless network (Krishnan). 8311981 Conflict management during data inbred populations (Conway). 7698453 Early generation of acknowledge- object synchronization between client and 20060159029 Automatic LAN/WAN port de- ments for flow control (Sutter). server (Rosenstein). tection (Sutter). 7730213 Object-based storage device with 8315977 Data synchronization between a 20060161516 Method and system for synchro- improved reliability and fast crash recovery data center environment and a cloud com- nizing multiple user revisions to a shared ob- (Howard). puting environment (Hunt). ject (Kofman). 7840648 Web-page authoring tool for auto- 8320244 Reservation based MAC protocol 20060161585 Method and system for matic enrollment in advertising program (Krishnan). transitioning between synchronous and (Rosenstein). 8351985 Low power dual processor architec- asynchronous communication modes 7843938 QoS optimization with compression ture for multi mode devices (Krishnan). (Kofman). (Sutter). 8365235 Trick play of streaming media 20060248442 Web page authoring tool for 7852799 Network using randomized time di- (Hunt). structured documents (Rosenstein). vision duplexing (Krishnan). 8369361 Early termination of low data rate 20070031886 Detecting recessive diseases in 7864770 Routing messages in a zero-infor- traffic in a wireless network (Krishnan). inbred populations (Conway). mation nested virtual private network 8386601 Detecting and reporting on con- 20070198662 Deleted account handling for (Baker). sumption rate changes (Sutter). hosted services (Parham).

VerDate Mar 15 2010 02:29 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00015 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.018 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7524 CONGRESSIONAL RECORD — HOUSE December 5, 2013 20070198938 Account administration for 20120022866 Language Model Selection for this type of litigation has risen to more than hosted services (Parham). Speech-to-Text Conversion (Ballinger). $29 billion per year, with each suit costing an 20070245310 Message catalogs for remote 20120022867 Speech to Text Conversion estimated average of $5–10 million. These are modules (Rosenstein). (Ballinger). 20070248090 Virtual inline configuration for 20120022868 Word-Level Correction of funds that companies can’t use to create jobs a network device (Sutter). Speech Input (Ballinger). or innovate. By diverting resources to fighting 20070260979 Distributed processing when ed- 20120022873 Speech Recognition Language trolls, Silicon Valley companies have less to iting an image in a browser (Rosenstein). Models (Ballinger). spend on investment in new products, expan- 20070285428 Self-refreshing display con- 20120093156 Virtual inline configuration for sion to new areas, and improvement of serv- troller for a display device in a computa- a network device (Sutter). ices. tional unit (Gettys). 20120095836 Social Advertisements Based on The Federal Trade Commission, which is Actions on an External System (Rosenstein). 20080086741 Audience commonality and charged with protecting consumers and polic- measurement (Sutter). 20120101898 Presenting personalized social 20080170785 Converting Text (Kofman). content on a web page of an external system ing unfair and deceptive acts, recently began 20080225057 Selective image editing in a (Rosenstein). an investigation of patent trolls. An investiga- browser (Rosenstein). 20120109757 Sponsored stories and news sto- tion is a good step in the right direction, but 20080225058 Effects applied to images in a ries within a newsfeed of a social networking legislation like H.R. 3309 is needed to truly browser (Rosenstein). system (Rosenstein). combat patent trolls. 20080256113 Techniques to associate infor- 20120203847 Sponsored Stories and News As a cosponsor of the bipartisan Innovation mation between application programs Stories within a Newsfeed of a Social Net- Act, I know this bill will take important steps to working System (Rosenstein). (Kofman). curb the abusive patent litigation we see 20080256114 Techniques to display associ- 20120204096 Presenting Personalized Social ated information between application pro- Content on a Web Page of an External Sys- today, in which trolls send vague demand let- grams (Kofman). tem (Rosenstein). ters about overbroad patents, don’t clearly 20080270761 Techniques to generate event 20120327772 Wavefront detection and identify themselves, and deliberately run up contexts for recurring events (Kofman). disambiguation of acknowledgements (Sut- discovery costs to pressure defendants to set- 20090083442 Tracking Identifier Synchroni- ter). tle. zation (Sutter). 20130003553 Automatic detection and win- The bill will change the rules for patent law- 20090119167 Social Advertisements and dow virtualization for flow control (Sutter). 20130124612 Conflict Management During suits by requiring plaintiffs to identify who is Other Informational Messages on a Social really behind the suit, what patent is being as- Networking Website, and Advertising Model Data Object Synchronization Between Client for Same (Rosenstein). and Server (Rosenstein). serted, and what the infringement claim is. 20090182589 Communicating Information in 20130132222 Method and Apparatus Per- This will allow the targets of patent suits to a Social Networking Website About Activi- taining to Financial Investment Quan- know who is accusing them of infringement ties from Another Domain (Rosenstein). titative Analysis Signal Auctions (Sutter). and what exactly they are being accused of 20090201828 Method of determining path 20130198008 Social Advertisements And doing. maximum transmission unit (Sutter). Other Informational Messages On A Social H.R. 3309 will also require judges to shift 20090216815 Conflict Management During Networking Website, And Advertising Model litigation costs and fees to a non-prevailing For Same (Rosenstein). Data Object Synchronization Between Client party in cases where the party’s position was and Server (Rosenstein). 20130198024 Method and Apparatus Per- 20090235158 Web Page Authoring Tool for taining to the Aggregation and Parsing of not reasonably justified, unless it would cause Structured Documents (Rosenstein). Behavioral-Event Content (Sutter). severe economic harm to the named inventor. 20100036779 User-controllable learning of 20130204954 Communicating information in This will make it easier for defendants to fight policies (Cranor). a social networking website about activities unjustified patent suits and deter illegitimate 20100046372 Wavefront Detection and from another domain (Rosenstein). claims, while protecting legitimate inventors Disambiguation of Acknowledgements (Sut- 20110207116 Spatio-Temporal Control of and preserving courts’ discretion to not shift ter). Proten Interactions Using Phytochromes (Levskaya). costs. 20100050040 Tcp selection acknowledge- The bill will also require the Judicial Con- ments for communicating delivered and Mr. HONDA. Mr. Chairman, I rise today in ference of the United States to make rules missing data packets (Sutter). support of H.R. 3309, The Innovation Act, that would shift discovery costs, while leaving 20100095350 Universally usable human- which will help to curtail the damage done by interaction proof (Hochheiser). the details of the rulemaking are up the Judi- 20100103819 Flow control system architec- patent trolls to the American economy and cial Conference. The rule should require par- ture (Sutter). consumers. ties to pay for their own discovery requests 20100110092 Distributed processing when ed- In recent years, patent trolls have had a sig- beyond the core documents needed to ad- iting an image in a browser (Rosenstein). nificant negative impact on America’s econ- vance the suit, which aims to rein in broad dis- 20100110104 Effects applied to images in a omy, with organizations from all walks of life covery requests in patent suits that are unnec- browser (Rosenstein). being attacked and facing costly licensing essary, unfair, and costly, and are often de- 20100111406 Selective image editing in a fees, settlements, and even court battles. The browser (Rosenstein). signed simply to intimidate the other party into 20100232294 Early generation of acknowl- direct impact of this has been estimated at a settlement. The bill would allow the courts to edgements for flow control (Sutter). roughly $29 billion per year. maintain discretion to modify the rules for 20100309922 Protecting data integrity in an It is important to realize that the impact of good cause. enhanced network connection (Sutter). patent trolls is falling not just on big, wealthy Another aspect of the bill will allow manu- 20110029388 Social Advertisements and companies, but on America’s consumers. In facturers and suppliers to intervene and stay Other Informational Messages on a Social one notable case, a patent troll has threatened lawsuits against customers and end users of a Networking Website, and Advertising Model nonprofit charities in Vermont and a commu- for Same (Rosenstein). product that allegedly infringe patents, if both 20110055314 Page rendering for dynamic web nity choir in Nebraska, asking for $1,000 per the manufacturer and customer agree. This pages (Rosenstein). employee simply because the organizations will protect the coffee shop or hotel, which is 20110153324 Language Model Selection for use scanners. And another has demanded li- accused of infringing a wifi patent because it Speech-to-Text Conversion (Ballinger). censing fees from more than 8,000 busi- uses a particular wireless router, by allowing 20110153325 Multi-Modal Input on an Elec- nesses, including coffee houses and hotels, the maker of the allegedly infringing product to tronic Device (Ballinger). and ultimately sued hundreds of them—all be- step in and take responsibility for the case. 20110161080 Speech to Text Conversion cause they provide wifi to their customers. It is important to note that this bill does not (Ballinger). 20110161081 Speech Recognition Language The impact of this on the consumer is sig- diminish or devalue patent rights in the United Models (Ballinger). nificant. The expense associated with facing a States. It does not attempt to eliminate valid 20110161178 Web-Page Authoring Tool for patent troll leaves small businesses with a low patent litigation; rather, it is aimed at abusive Automatic Enrollment in Advertising Pro- profit margin already with the choice of either behaviors in the patent litigation system and gram (Rosenstein). halting use of this service to its customers, or seeks to put them to a stop. Its provisions for 20110166851 Word-Level Correction of offsetting the cost by charging for use. When higher pleading standards and greater trans- Speech Input (Ballinger). these small businesses are able to go to parency will save the court’s time and re- 20110225242 Method and system for transitioning between synchronous and court, the trolls lose the cases over 85 percent sources by making parties do their due dili- asynchronous communication modes of the time. But in our current system, most of gence and provide information up front, before (Kofman). them can’t afford to do so. an infringement suit is filed. Greater trans- 20120022853 Multi-Modal Input on an Elec- What’s more, the long-term impact is even parency and information are a good thing, and tronic Device (Ballinger). more damaging for consumers. The cost of will make the system stronger.

VerDate Mar 15 2010 02:29 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00016 Fmt 0636 Sfmt 9920 E:\CR\FM\A05DE7.020 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7525 H.R. 3309 had broad bipartisan support in ‘‘Loser pays’’, also commonly referred to as By the time we realize that an over-correc- the Judiciary Committee, where it passed by a the British Rule, mandates that the losing side tion is apparent, it will be years after the sys- vote of 33–5, and it deserves our support. I in a civil dispute pay the legal costs of the tem is badly damaged. If there were ever a look forward to working with my colleagues on other side. Loser pays laws ensure that only case where caution is called for, this is it, and both sides of the aisle in the House and the the wealthiest members of society or large I say that because my constituents in Texas, Senate to send a bill to the President that will corporations can afford to undertake a civil ac- and particularly in Houston, wanted change in bring an end to these abusive practices that tion and also unnecessarily punishes individ- the patent system, and surely every one of are stifling American businesses and innova- uals with serious and meritorious claims for them was not satisfied with the Leahy-Smith tion. seeking access to justice. Act but some changes we can live with. Ms. EDDIE BERNICE JOHNSON of Texas. Loser pays policies fail to recognize that a I would hope that due caution would yield to Mr. Speaker, I rise today in support of H.R. person or a business can have a legally legiti- a deliberative process that takes the time to 3309, the Innovation Act. I would like to ap- mate dispute regarding fact and law, and yet reach out and listen to all stakeholders, includ- plaud my colleagues for bringing this important still ultimately lose the case. Loser pays policy ing those who will not be the fastest ones off issue to the floor today. sets a dangerous precedent and may prevent the mark, and I am sure that some of them Throughout my tenure in Congress, I have individuals from pursuing even the most meri- exist in Texas. Many small innovators—to- long supported the principles for reforming torious civil liability claims. day’s Priceline.coms, Yahoo’s, Google’s, patent litigation to prevent troll litigation. As For most individuals and small businesses, Facebook’s, Eli Lilly’s, Twitter’s, akin to yester- Ranking Member of the House Committee on the financial risk of having to pay the other years Edisons—have not had time to make Science, Space and Technology I have long side’s costs and legal fees is one too great to their views heard. supported policy in order to prioritize invest- bear, no matter how valid the claim. It creates Others having various levels of dependence ments that will advance our knowledge, create a situation where experienced corporate de- on strong IP rights are just now beginning to new industries and jobs, and give our children fendants with enormous resources and expert consider the prospect of further changes to the grounding in science and technology they legal talent can bully injured plaintiffs into un- our patent system. We need to allow these im- will need to succeed in a competitive world fair settlements due to the risks associated portant stakeholders their time to participate. economy. During this time of economic need, with losing a potentially successful case. I look forward to hearing from these wit- I support H.R. 3309 which is integral to curb- If ‘‘loser pays’’ is implemented it could be a nesses but would hope that this Committee ing frivolous and costly patent litigation that roadblock for people pursuing whistleblower, proceeds on any changes with due caution— currently hinders our ability to innovate, create consumer mortgage, employment discrimina- because the ink on the America Invents Act is jobs and economic growth. tion and other civil rights cases. The only los- barely dry—and another patent bill is before Many companies, from both the technology ers under a ‘‘loser pays’’ system is the small us with changes that are fraught with difficulty and non-technology sectors, have been the business or individual plaintiff, or the innovator for many in our innovation economy. target of numerous, merit-less lawsuits from who is discouraged from pursuing her rights My amendment modifies the Manager’s patent trolls. Since 2005, the number of de- due to the chilling effect brought on by the on- Amendment to ensure that small businesses fendants sued by patent trolls has quadrupled, erous language in H.R. 3309. that motivated this provision are protected and This bill tries to discourage patent litigation activity that is estimated to have cost the U.S. by expanding the amendment so that busi- abuse by patent assertion entities, better economy $80 billion in 2011. And, what’s even nesses with under $25 million are included— known as ‘‘patent trolls’’. Trolls use patents of more startling is that in 2012 patent trolls sued my hope is that it will garner the support. questionable quality to pressure their targets more non-tech companies than tech compa- Under my amendment, the customer stay into settlement for an amount that is lower nies. I am supportive of the Innovation Act of provision a covered customer is one who is than the legal fees to defend against a lawsuit. 2013 which takes a multi-faceted approach to accused of infringing a patent or patents on a Trolls typically have no interest in moving the end this abuse. covered product or process, and is a small While I recognize there may be no single patented technology into the marketplace. business that has revenue of $25 million or solution that addresses all complexities sur- Generally, the troll’s target has had a product less. rounding our nation’s patent process, H.R. on the market for some time and the troll’s I have modified this amendment from that 3309 is a good faith bi-partisan first step to- patent covers the targeted product through ex- offered in the Judiciary Committee markup in wards addressing patent trolling. I am pleased ceedingly broad claims, often through a broad order to accommodate more businesses who that the Administration is also supportive of interpretation of vague claim terms. feel they might benefit from the narrowed lan- H.R. 3309. Moving forward, I would like to In one common tactic, a troll will approach guage while still maintaining the intended con- work with all sides on this issue to curb patent a target with a proposal to license patents with sequence of allowing for stays in proceedings. trolling. I would like to think that all of us in a one-time fee of $50k to $200k, where it Congress agree that we must work to address might cost the target $15k to $50k for an initial The expanded language might allow some the problem of patent trolls. legal opinion on validity and infringement, and businesses who are past the ‘‘mom and pop’’ Ms. JACKSON LEE. Mr. Chairman, I rise to it might cost the target $20k to $50k per growth phase but if this will provide medium- talk about innovation in America—the great month in legal fees in litigation proceedings sized businesses from going bankrupt, or los- job creator that I feel is being put in jeopardy (mainly driven by discovery and motions prac- ing valuable revenues because of litigation, it by H.R. 3309, the Innovation Act. tice). So the one-time fee may sound appeal- is a useful expansion. H.R. 3309 is a bill before its time as the ing as a simple payoff to avoid legal fees that A number of the provisions in this bill may America Invents Act was signed into law bare- are comparable and inevitable. be well-intentioned, but they have undesirable ly two years ago. Many of the major provisions In theory, one can discourage the patent consequences for the patent system as a of this landmark legislation which many on the troll business model by increasing patent qual- whole. Judiciary Committee and in this body voted for ity, promoting stricter requirements on claim They have the potential to undermine the have not even been put into practice. construction, and lowering the cost of litigation enforceability of all patent rights, no matter It is well documented that our innovation (by limiting discovery). Each of these pur- how valuable the patent, and thus potentially ecosystem—founded on patents—drives eco- ported remedies has a cost that may be worse incentivize infringement. nomic growth and job creation in the United than the alleged benefit. That is why it is crit- That is why I offered three amendments in States. From the hustle and bustle of down- ical that we carefully consider any and all leg- the Judiciary Committee and three in the town Houston, Silicon Valley, Chicago, New islation and policy which looks to improve. Rules Committee yesterday. My first amend- York, and even here in Washington, D.C., At the outset of considering further changes ment struck section 9(a) of H.R. 3309 which Americans want to keep our cherished system to our patent system, we must recognize that strikes Section 9(a) of the bill which repeals as strong as possible. For the future of our the time constant of the patent system—the Section 145 of 35 U.S.C. Under this repeal, economy, we cannot risk jeopardizing it. period between new patent application and applicants would be gratuitously denied the And while the AIA was unquestionably pro- court decision on a patent infringement fundamental right of de-novo judicial review of innovator legislation, its post-grant challenge claim—is very long. Therefore, the impact of adverse patentability determinations by the provisions also unquestionably shifted the bal- Congress’ very recent major change to our Patent and Trademark Office when it refuses ance of rights toward implementers and away patent system has barely begun to be felt. to consider certain evidence. This is a limiting from patent holders. The only remaining ques- Moreover, in long time constant systems provision and unfairly prevents a full adjudica- tion, brought on by the adolescence of the such as our patent system, over-correction, tion of the rights of litigants. The importance of AIA, is—just how much has that balance shift- especially that which leaves scant time for due this 170-year-old protective provision is in its ed? deliberation, is a major danger. restraining effect on PTO’s potential abuse of

VerDate Mar 15 2010 02:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00017 Fmt 0636 Sfmt 9920 E:\CR\FM\A05DE7.002 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7526 CONGRESSIONAL RECORD — HOUSE December 5, 2013 discretion for all patent applicants—not just for during the long road that led to the path that holders, especially institutions of higher edu- those who would seek judicial review. I at- became Smith-Leahy, or the American Invents cation. It is encouraging that the administra- tempted to modify my amendment based on a Act. That it took so long is somewhat per- tion’s support includes a commitment to help meeting I had with Chief Judge Rader of the plexing; but even more interesting is that the refine this legislation. I look forward to partici- Federal Circuit, which hears all patent claims, bill had a Republican House and a Democratic pating in that effort. and is the lodestar for patent litigation. Senate. Yet we came together in a collabo- The Acting CHAIR (Mr. MASSIE). All My second amendment which was made in rative fashion and made lemonade out of sixty time for general debate has expired. order by the Rules Committee yesterday years of lemons while in the midst of some of Pursuant to the rule, the bill shall be evening, modifies the Manager’s Amendment the most jarring partisanship we have seen in considered for amendment under the 5- to ensure that small businesses that motivated this great body. Yet H.R. 3309 has been cob- minute rule. this provision are protected and by expanding bled together in a couple of months—this is no In lieu of the amendment in the na- the amendment so that businesses with under small, technical correction bill Mr. Chairman— ture of a substitute recommended by $25 million are included—my hope is that it it is comprehensive yet potentially pernicious the Committee on the Judiciary, print- will garner the support. Under my amendment, legislation which should be slowed, if not ed in the bill, it shall be in order to a covered customer is one who is accused of stopped. consider as an original bill for the pur- infringing a patent or patents on a covered Ms. KAPTUR. Mr. Chairman, today I rise in pose of amendment under the 5-minute product or process, and is a small business opposition to H.R. 3309. This bill hurts innova- rule an amendment in the nature of a that has revenue of $25 million or less. I have tion by small business and many American in- substitute consisting of the text of modified this amendment from that offered in ventors with less than 5 patents. My amend- Rules Committee Print 113–28. That the Judiciary Committee markup in order to ment to exempt them from the strictures and amendment in the nature of a sub- accommodate more businesses who feel they inherent costs of this bill was not made in stitute shall be considered as read. might benefit from the narrowed language order. Issues with this bill: The text of the amendment in the na- while still maintaining the intended con- Proponents of the bill claim that H.R. 3309 ture of a substitute is as follows: sequence of allowing for stays in proceedings. attempts to fix the issue with patent trolls. H.R. 3309 The expanded language might allow some However, there is no evidence that patent Be it enacted by the Senate and House of Rep- businesses who are past the ‘‘mom and pop’’ trolls make up more than a very small percent resentatives of the United States of America in growth phase but if this will provide medium- of the civil suits brought in court—probably Congress assembled, sized businesses from going bankrupt, or los- less than 5 percent. SECTION 1. SHORT TITLE; TABLE OF CONTENTS. ing valuable revenues because of litigation, it The bill does however make it more difficult (a) SHORT TITLE.—This Act may be cited as is a useful expansion. and for the vast majority of inventors and the ‘‘Innovation Act’’. Also made-in-order by the Rules Committee much more expensive for the ‘‘little guy’’ to (b) TABLE OF CONTENTS.—The table of con- tents for this Act is as follows: is my third amendment which simply requires sue for patent infringement. Small inventors simply cannot afford to defend themselves. Sec. 1. Short title; table of contents. the PTO Director, in consultation with other Sec. 2. Definitions. relevant agencies, and interested parties, to Truly, this is un-American. Sec. 3. Patent infringement actions. conduct a study to examine the economic im- Fee shifting and ‘‘loser pay’’ rules ensure Sec. 4. Transparency of patent ownership. pact of the litigation reforms contained in the that only wealthy inventors and large business Sec. 5. Customer-suit exception. bill (sections 3, 4, and 5 of this Act) on the are able to protect their patents. Many small Sec. 6. Procedures and practices to implement ability of individuals and small businesses inventors and entrepreneurs simply cannot af- and recommendations to the Judi- owned by women, veterans, and minorities to ford the cost of civil litigation and the potential cial Conference. cost of paying the legal fees for losing a law- Sec. 7. Small business education, outreach, and assert, secure, and vindicate the constitu- information access. tionally guaranteed exclusive right to inven- suit. Why throttle the most important source of Sec. 8. Studies on patent transactions, quality, tions and discoveries by such individuals and innovation in our Nation? and examination. small business. This amendment supplements Six national higher education associations Sec. 9. Improvements and technical corrections and improves the bill, which requires PTO to including the Association of American Univer- to the Leahy-Smith America In- conduct 4 studies and submit reports to Con- sities, Association of American Medical Uni- vents Act. gress. The required studies are: versities, Association of Public and Land Grant Sec. 10. Effective date. 1. Study On Secondary Market Oversight Universities, and the American Bar Associa- SEC. 2. DEFINITIONS. For Patent Transactions To Promote Trans- tion and the Association of University Tech- In this Act: (1) DIRECTOR.—The term ‘‘Director’’ means parency And Ethical Business Practices. nology Managers oppose this bill. More than half of the U.S. economic growth since World the Under Secretary of Commerce for Intellec- 2. Study On Patents Owned By The United tual Property and Director of the United States States Government War II is the result of technological innovation Patent and Trademark Office. 3. Study On Patent Quality And Access To resulting from federally funded research. Uni- (2) OFFICE.—The term ‘‘Office’’ means the The Best Information During Examination versities are worried that this bill will hurt their United States Patent and Trademark Office. 4. Study On Patent Small Claims Court ability to turn their federally funded research SEC. 3. PATENT INFRINGEMENT ACTIONS. My last amendment was done with Ranking into the commercial sector because of how dif- (a) PLEADING REQUIREMENTS.— Member CONYERS of the Judiciary Committee, ficult it will be to defend their patents in court (1) AMENDMENT.—Chapter 29 of title 35, strikes Section 3(b) which requires that courts with the new fee shifting rules. United States Code, is amended by inserting reward attorney’s fees and expenses to the The American Association of Justice is after section 281 the following: prevailing party. I remain convinced that this ‘‘deeply concerned with the continued inclu- ‘‘§ 281A. Pleading requirements for patent in- provision is onerous and prepares us for a sion of burdensome mandatory fee shifting, fringement actions slippery slope that leads to more and more re- unfair limitations on discovery and impedi- ‘‘(a) PLEADING REQUIREMENTS.—Except as straints against plaintiffs in litigation. ments on the discretion of the courts.’’ provided in subsection (b), in a civil action in This will have a chilling effect and deter liti- The bill should be sent back to committee. which a party asserts a claim for relief arising gation in areas which might lead to more harm It should review in particular the development under any Act of Congress relating to patents, being exacted on the public—particularly in and improvement of rules of procedure and a party alleging infringement shall include in the initial complaint, counterclaim, or cross- areas such as civil rights, environmental pro- case management to address the concerns claim for patent infringement, unless the infor- tection, and business regulations. over abusive litigation practices so we can ad- mation is not reasonably accessible to such Mr. Chairman, in the name of fairness to the dress the real issues with patent law without party, the following: little person—the Davids in the land of the Go- making unnecessary changes that hurt small ‘‘(1) An identification of each patent allegedly liaths, commercially-speaking—and I ask my business and individual inventors. infringed. colleagues to slow the train down and exer- Mr. BLUMENAUER. Mr. Chairman, I support ‘‘(2) An identification of each claim of each cise prudence and due caution before we vote H.R. 3309, the Innovation Act, as a step in the patent identified under paragraph (1) that is al- on H.R. 3309. right direction to address the growing and seri- legedly infringed. ‘‘(3) For each claim identified under para- We must act thoughtfully and with great ous issue of abusive patent lawsuits or ‘‘patent graph (2), an identification of each accused caution as we pursue reforms to a system trolling.’’ process, machine, manufacture, or composition which took sixty years to change—and then in We need to be careful that certain provi- of matter (referred to in this section as an ‘ac- batting of a Congressional eyelash—look to sions of this legislation do not have unin- cused instrumentality’) alleged to infringe the significantly modify once again. I was here tended consequences for legitimate patent claim.

VerDate Mar 15 2010 02:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00018 Fmt 0636 Sfmt 6333 E:\CR\FM\A05DE7.005 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7527 ‘‘(4) For each accused instrumentality identi- award that is made against it under subsection ‘‘(A) identifies the action, the parties thereto, fied under paragraph (3), an identification with (a), the court may make a party that has been the patent or patents at issue, and the pleading particularity, if known, of— joined under section 299(d) with respect to such or other paper that identified the party under ‘‘(A) the name or model number of each ac- party liable for the unsatisfied portion of the section 290(b); and cused instrumentality; or award. ‘‘(B) informs the party that it may be joined ‘‘(B) if there is no name or model number, a ‘‘(c) COVENANT NOT TO SUE.—A party to a in the action and made subject to paying an description of each accused instrumentality. civil action that asserts a claim for relief arising award of fees and other expenses under section ‘‘(5) For each accused instrumentality identi- under any Act of Congress relating to patents 285(b) if— fied under paragraph (3), a clear and concise against another party, and that subsequently ‘‘(i) fees and other expenses are awarded in statement of— unilaterally extends to such other party a cov- the action against the party alleging infringe- ‘‘(A) where each element of each claim identi- enant not to sue for infringement with respect to ment of the patent or patents at issue under sec- fied under paragraph (2) is found within the ac- the patent or patents at issue, shall be deemed tion 285(a); cused instrumentality; and to be a nonprevailing party (and the other party ‘‘(ii) the party alleging infringement is unable ‘‘(B) with detailed specificity, how each limi- the prevailing party) for purposes of this sec- to pay the award of fees and other expenses; tation of each claim identified under paragraph tion, unless the party asserting such claim ‘‘(iii) the party receiving notice under this (2) is met by the accused instrumentality. would have been entitled, at the time that such paragraph is determined by the court to be an ‘‘(6) For each claim of indirect infringement, a covenant was extended, to voluntarily dismiss interested party; and description of the acts of the alleged indirect in- the action or claim without a court order under ‘‘(iv) the party receiving notice under this fringer that contribute to or are inducing the di- Rule 41 of the Federal Rules of Civil Proce- paragraph has not, within 30 days after receiv- rect infringement. dure.’’. ing such notice, renounced in writing, and with ‘‘(7) A description of the authority of the (2) CONFORMING AMENDMENT AND AMEND- notice to the court and the parties to the action, party alleging infringement to assert each pat- MENT.— any ownership, right, or direct financial interest ent identified under paragraph (1) and of the (A) CONFORMING AMENDMENT.—The item re- (as described in paragraph (4)) that the inter- grounds for the court’s jurisdiction. lating to section 285 of the table of sections for ested party has in the patent or patents at issue. ‘‘(8) A clear and concise description of the chapter 29 of title 35, United States Code, is ‘‘(4) INTERESTED PARTY DEFINED.—In this sub- principal business, if any, of the party alleging amended to read as follows: section, the term ‘interested party’ means a per- infringement. ‘‘285. Fees and other expenses.’’. son, other than the party alleging infringement, ‘‘(9) A list of each complaint filed, of which (B) AMENDMENT.—Section 273 of title 35, that— the party alleging infringement has knowledge, United States Code, is amended by striking sub- ‘‘(A) is an assignee of the patent or patents at that asserts or asserted any of the patents iden- sections (f) and (g). issue; tified under paragraph (1). (3) EFFECTIVE DATE.—The amendments made ‘‘(B) has a right, including a contingent right, ‘‘(10) For each patent identified under para- by this subsection shall take effect on the date to enforce or sublicense the patent or patents at graph (1), whether a standard-setting body has of the enactment of this Act and shall apply to issue; or specifically declared such patent to be essential, any action for which a complaint is filed on or ‘‘(C) has a direct financial interest in the pat- potentially essential, or having potential to be- after the first day of the 6-month period ending ent or patents at issue, including the right to come essential to that standard-setting body, on that effective date. any part of an award of damages or any part of and whether the United States Government or a (c) JOINDER OF INTERESTED PARTIES.—Section licensing revenue, except that a person with a foreign government has imposed specific licens- 299 of title 35, United States Code, is amended direct financial interest does not include— ing requirements with respect to such patent. by adding at the end the following new sub- ‘‘(i) an attorney or law firm providing legal ‘‘(b) INFORMATION NOT READILY ACCES- section: representation in the civil action described in SIBLE.—If information required to be disclosed ‘‘(d) JOINDER OF INTERESTED PARTIES.— paragraph (1) if the sole basis for the financial under subsection (a) is not readily accessible to ‘‘(1) JOINDER.—In a civil action arising under interest of the attorney or law firm in the patent a party, that information may instead be gen- any Act of Congress relating to patents in which or patents at issue arises from the attorney or erally described, along with an explanation of fees and other expenses have been awarded law firm’s receipt of compensation reasonably why such undisclosed information was not read- under section 285 to a prevailing party defend- related to the provision of the legal representa- ily accessible, and of any efforts made by such ing against an allegation of infringement of a tion; or party to access such information. patent claim, and in which the nonprevailing ‘‘(ii) a person whose sole financial interest in ‘‘(c) CONFIDENTIAL INFORMATION.—A party party alleging infringement is unable to pay the the patent or patents at issue is ownership of an required to disclose information described under award of fees and other expenses, the court equity interest in the party alleging infringe- subsection (a) may file, under seal, information shall grant a motion by the prevailing party to ment, unless such person also has the right or believed to be confidential, with a motion setting join an interested party if such prevailing party ability to influence, direct, or control the civil forth good cause for such sealing. If such mo- shows that the nonprevailing party has no sub- action.’’. tion is denied by the court, the party may seek stantial interest in the subject matter at issue (d) DISCOVERY LIMITS.— to file an amended complaint. other than asserting such patent claim in litiga- (1) AMENDMENT.—Chapter 29 of title 35, ‘‘(d) EXEMPTION.—A civil action that includes tion. United States Code, is amended by adding at the a claim for relief arising under section 271(e)(2) ‘‘(2) LIMITATION ON JOINDER.— end the following new section: shall not be subject to the requirements of sub- ‘‘(A) DISCRETIONARY DENIAL OF MOTION.—The section (a).’’. ‘‘§ 299A. Discovery in patent infringement ac- court may deny a motion to join an interested tion (2) CONFORMING AMENDMENT.—The table of party under paragraph (1) if— sections for chapter 29 of title 35, United States ‘‘(i) the interested party is not subject to serv- ‘‘(a) DISCOVERY IN PATENT INFRINGEMENT AC- Code, is amended by inserting after the item re- ice of process; or TION.—Except as provided in subsection (b), in a lating to section 281 the following new item: ‘‘(ii) joinder under paragraph (1) would de- civil action arising under any Act of Congress ‘‘281A. Pleading requirements for patent in- prive the court of subject matter jurisdiction or relating to patents, if the court determines that fringement actions.’’. make venue improper. a ruling relating to the construction of terms ‘‘(B) REQUIRED DENIAL OF MOTION.—The court used in a patent claim asserted in the complaint (b) FEES AND OTHER EXPENSES.— shall deny a motion to join an interested party is required, discovery shall be limited, until such (1) AMENDMENT.—Section 285 of title 35, ruling is issued, to information necessary for the United States Code, is amended to read as fol- under paragraph (1) if— ‘‘(i) the interested party did not timely receive court to determine the meaning of the terms lows: the notice required by paragraph (3); or used in the patent claim, including any inter- ‘‘§ 285. Fees and other expenses ‘‘(ii) within 30 days after receiving the notice pretation of those terms used to support the ‘‘(a) AWARD.—The court shall award, to a required by paragraph (3), the interested party claim of infringement. prevailing party, reasonable fees and other ex- renounces, in writing and with notice to the ‘‘(b) DISCRETION TO EXPAND SCOPE OF DIS- penses incurred by that party in connection court and the parties to the action, any owner- COVERY.— with a civil action in which any party asserts a ship, right, or direct financial interest (as de- ‘‘(1) TIMELY RESOLUTION OF ACTIONS.—If, claim for relief arising under any Act of Con- scribed in paragraph (4)) that the interested under any provision of Federal law (including gress relating to patents, unless the court finds party has in the patent or patents at issue. the amendments made by the Drug Price Com- that the position and conduct of the nonpre- ‘‘(3) NOTICE REQUIREMENT.—An interested petition and Patent Term Restoration Act of vailing party or parties were reasonably justi- party may not be joined under paragraph (1) 1984 (Public Law 98–417)), resolution within a fied in law and fact or that special cir- unless it has been provided actual notice, within specified period of time of a civil action arising cumstances (such as severe economic hardship 30 days after the date on which it has been under any Act of Congress relating to patents to a named inventor) make an award unjust. identified in the initial disclosure provided will necessarily affect the rights of a party with ‘‘(b) CERTIFICATION AND RECOVERY.—Upon under section 290(b), that it has been so identi- respect to the patent, the court shall permit dis- motion of any party to the action, the court fied and that such party may therefore be an in- covery, in addition to the discovery authorized shall require another party to the action to cer- terested party subject to joinder under this sub- under subsection (a), before the ruling described tify whether or not the other party will be able section. Such notice shall be provided by the in subsection (a) is issued as necessary to ensure to pay an award of fees and other expenses if party who subsequently moves to join the inter- timely resolution of the action. such an award is made under subsection (a). If ested party under paragraph (1), and shall in- ‘‘(2) RESOLUTION OF MOTIONS.—When nec- a nonprevailing party is unable to pay an clude language that— essary to resolve a motion properly raised by a

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party before a ruling relating to the construc- ‘‘(2) EXEMPTION.—The requirements of para- (b) TECHNICAL AND CONFORMING AMEND- tion of terms described in subsection (a) is graph (1) shall not apply with respect to a civil MENT.—The item relating to section 290 in the issued, the court may allow limited discovery in action filed under subsection (a) that includes a table of sections for chapter 29 of title 35, United addition to the discovery authorized under sub- cause of action described under section 271(e)(2). States Code, is amended to read as follows: section (a) as necessary to resolve the motion. ‘‘(c) DISCLOSURE COMPLIANCE.— ‘‘290. Notice of patent suits; disclosure of in- ‘‘(1) PUBLICLY TRADED.—For purposes of sub- ‘‘(3) SPECIAL CIRCUMSTANCES.—In special cir- terests.’’. cumstances that would make denial of discovery section (b)(1)(C), if the financial interest is held a manifest injustice, the court may permit dis- by a corporation traded on a public stock ex- (c) REGULATIONS.—The Director may promul- covery, in addition to the discovery authorized change, an identification of the name of the cor- gate such regulations as are necessary to estab- under subsection (a), as necessary to prevent poration and the public exchange listing shall lish a registration fee in an amount sufficient to the manifest injustice.’’. satisfy the disclosure requirement. recover the estimated costs of administering sub- (2) CONFORMING AMENDMENT.—The table of ‘‘(2) NOT PUBLICLY TRADED.—For purposes of sections (b) through (e) of section 290 of title 35, sections for chapter 29 of title 35, United States subsection (b)(1)(C), if the financial interest is United States Code, as added by subsection (a), Code, is amended by adding at the end the fol- not held by a publicly traded corporation, the to facilitate the collection and maintenance of lowing new item: disclosure shall satisfy the disclosure require- the information required by such subsections, ment if the information identifies— and to ensure the timely disclosure of such in- ‘‘299A. Discovery in patent infringement ac- ‘‘(A) in the case of a partnership, the name of formation to the public. tion.’’. the partnership and the name and correspond- (d) EFFECTIVE DATE.—The amendments made (e) SENSE OF CONGRESS.—It is the sense of ence address of each partner or other entity that by this section shall take effect upon the expira- Congress that it is an abuse of the patent system holds more than a 5-percent share of that part- tion of the 6-month period beginning on the date and against public policy for a party to send out nership; of the enactment of this Act and shall apply to purposely evasive demand letters to end users ‘‘(B) in the case of a corporation, the name of any action for which a complaint is filed on or alleging patent infringement. Demand letters the corporation, the location of incorporation, after such effective date. sent should, at the least, include basic informa- the address of the principal place of business, SEC. 5. CUSTOMER-SUIT EXCEPTION. tion about the patent in question, what is being and the name of each officer of the corporation; (a) AMENDMENT.—Section 296 of title 35, infringed, and how it is being infringed. Any ac- and United States Code, is amended to read as fol- tions or litigation that stem from these types of ‘‘(C) for each individual, the name and cor- lows: purposely evasive demand letters to end users respondence address of that individual. should be considered a fraudulent or deceptive ‘‘(d) ONGOING DUTY OF DISCLOSURE TO THE ‘‘§ 296. Stay of action against customer practice and an exceptional circumstance when PATENT AND TRADEMARK OFFICE.— ‘‘(a) STAY OF ACTION AGAINST CUSTOMER.— considering whether the litigation is abusive. ‘‘(1) IN GENERAL.—A plaintiff required to sub- Except as provided in subsection (d), in any (f) DEMAND LETTERS.—Section 284 of title 35, mit information under subsection (b) or a subse- civil action arising under any Act of Congress United States Code, is amended— quent owner of the patent or patents at issue relating to patents, the court shall grant a mo- (1) in the first undesignated paragraph, by shall, not later than 90 days after any change in tion to stay at least the portion of the action striking ‘‘Upon finding’’ and inserting ‘‘(a) IN the assignee of the patent or patents at issue or against a covered customer related to infringe- GENERAL.—Upon finding’’; an entity described under subparagraph (B) or ment of a patent involving a covered product or (2) in the second undesignated paragraph, by (D) of subsection (b)(1), submit to the Patent process if the following requirements are met: striking ‘‘When the damages’’ and inserting ‘‘(b) and Trademark Office the updated identifica- ‘‘(1) The covered manufacturer and the cov- ASSESSMENT BY COURT; TREBLE DAMAGES.— tion of such assignee or entity. ered customer consent in writing to the stay. ‘‘(2) FAILURE TO COMPLY.—With respect to a When the damages’’; ‘‘(2) The covered manufacturer is a party to patent for which the requirement of paragraph (3) by inserting after subsection (b), as des- the action or to a separate action involving the ignated by paragraph (2) of this subsection, the (1) has not been met— ‘‘(A) the plaintiff or subsequent owner shall same patent or patents related to the same cov- following: ered product or process. ‘‘(c) WILLFUL INFRINGEMENT.—A claimant not be entitled to recover reasonable fees and other expenses under section 285 or increased ‘‘(3) The covered customer agrees to be bound seeking to establish willful infringement may by any issues that the covered customer has in not rely on evidence of pre-suit notification of damages under section 284 with respect to in- fringing activities taking place during any pe- common with the covered manufacturer and are infringement unless that notification identifies finally decided as to the covered manufacturer with particularity the asserted patent, identifies riod of noncompliance with paragraph (1), un- less the denial of such damages or fees would be in an action described in paragraph (2). the product or process accused, and explains ‘‘(4) The motion is filed after the first pleading with particularity, to the extent possible fol- manifestly unjust; and ‘‘(B) the court shall award to a prevailing in the action but not later than the later of— lowing a reasonable investigation or inquiry, ‘‘(A) the 120th day after the date on which the how the product or process infringes one or party accused of infringement reasonable fees and other expenses under section 285 that are first pleading in the action is served that specifi- more claims of the patent.’’; and cally identifies the covered product or process as (4) in the last undesignated paragraph, by incurred to discover the updated assignee or en- a basis for the covered customer’s alleged in- striking ‘‘The court’’ and inserting ‘‘(d) EXPERT tity described under paragraph (1), unless such fringement of the patent and that specifically TESTIMONY.—The court’’. sanctions would be unjust. identifies how the covered product or process is (g) EFFECTIVE DATE.—Except as otherwise ‘‘(e) DEFINITIONS.—In this section: ‘‘(1) FINANCIAL INTEREST.—The term ‘finan- provided in this section, the amendments made alleged to infringe the patent; or cial interest’— by this section shall take effect on the date of ‘‘(B) the date on which the first scheduling ‘‘(A) means— the enactment of this Act and shall apply to any order in the case is entered. ‘‘(i) with regard to a patent or patents, the PPLICABILITY OF STAY.—A stay issued action for which a complaint is filed on or after ‘‘(b) A right of a person to receive proceeds related to under subsection (a) shall apply only to the pat- that date. the assertion of the patent or patents, including ents, products, systems, or components accused SEC. 4. TRANSPARENCY OF PATENT OWNERSHIP. a fixed or variable portion of such proceeds; and of infringement in the action. (a) AMENDMENTS.—Section 290 of title 35, ‘‘(ii) with regard to the plaintiff, direct or in- ‘‘(c) LIFT OF STAY.— United States Code, is amended— direct ownership or control by a person of more ‘‘(1) IN GENERAL.—A stay entered under this (1) in the heading, by striking ‘‘suits’’ and in- than 5 percent of such plaintiff; and section may be lifted upon grant of a motion serting ‘‘suits; disclosure of interests’’; ‘‘(B) does not mean— based on a showing that— (2) by striking ‘‘The clerks’’ and inserting ‘‘(a) ‘‘(i) ownership of shares or other interests in ‘‘(A) the action involving the covered manu- NOTICE OF PATENT SUITS.—The clerks’’; and a mutual or common investment fund, unless the facturer will not resolve a major issue in suit (3) by adding at the end the following new owner of such interest participates in the man- against the covered customer; or subsections: agement of such fund; or ‘‘(b) INITIAL DISCLOSURE.— ‘‘(ii) the proprietary interest of a policyholder ‘‘(B) the stay unreasonably prejudices and ‘‘(1) IN GENERAL.—Except as provided in para- in a mutual insurance company or of a deposi- would be manifestly unjust to the party seeking graph (2), upon the filing of an initial complaint tor in a mutual savings association, or a similar to lift the stay. for patent infringement, the plaintiff shall dis- proprietary interest, unless the outcome of the ‘‘(2) SEPARATE MANUFACTURER ACTION IN- close to the Patent and Trademark Office, the proceeding could substantially affect the value VOLVED.—In the case of a stay entered based on court, and each adverse party the identity of of such interest. the participation of the covered manufacturer in each of the following: ‘‘(2) PROCEEDING.—The term ‘proceeding’ a separate action involving the same patent or ‘‘(A) The assignee of the patent or patents at means all stages of a civil action, including pre- patents related to the same covered product or issue. trial and trial proceedings and appellate review. process, a motion under this subsection may ‘‘(B) Any entity with a right to sublicense or ‘‘(3) ULTIMATE PARENT ENTITY.— only be made if the court in such separate ac- enforce the patent or patents at issue. ‘‘(A) IN GENERAL.—Except as provided in sub- tion determines the showing required under ‘‘(C) Any entity, other than the plaintiff, that paragraph (B), the term ‘ultimate parent entity’ paragraph (1) has been met. the plaintiff knows to have a financial interest has the meaning given such term in section ‘‘(d) EXEMPTION.—This section shall not in the patent or patents at issue or the plaintiff. 801.1(a)(3) of title 16, Code of Federal Regula- apply to an action that includes a cause of ac- ‘‘(D) The ultimate parent entity of any as- tions, or any successor regulation. tion described under section 271(e)(2). signee identified under subparagraph (A) and ‘‘(B) MODIFICATION OF DEFINITION.—The Di- ‘‘(e) CONSENT JUDGMENT.—If, following the any entity identified under subparagraph (B) or rector may modify the definition of ‘ultimate grant of a motion to stay under this section, the (C). parent entity’ by regulation.’’. covered manufacturer seeks or consents to entry

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of a consent judgment relating to one or more of tary evidence and whether such discovery shall (3) DEFINITIONS.—In this subsection: the common issues that gave rise to the stay, or be in accordance with the following: (A) CORE DOCUMENTARY EVIDENCE.—The term declines to prosecute through appeal a final de- (i) Any request for the production of elec- ‘‘core documentary evidence’’— cision as to one or more of the common issues tronic communication shall be specific and may (i) includes— that gave rise to the stay, the court may, upon not be a general request for the production of (I) documents relating to the conception of, grant of a motion, determine that such consent information relating to a product or business. reduction to practice of, and application for, the judgment or unappealed final decision shall not (ii) Each request shall identify the custodian patent or patents at issue; (II) documents sufficient to show the tech- be binding on the covered customer with respect of the information requested, the search terms, nical operation of the product or process identi- to one or more of such common issues based on and a time frame. The parties shall cooperate to fied in the complaint as infringing the patent or a showing that such an outcome would unrea- identify the proper custodians, the proper search terms, and the proper time frame. patents at issue; sonably prejudice and be manifestly unjust to (III) documents relating to potentially invali- the covered customer in light of the cir- (iii) A party may not submit production re- quests to more than 5 custodians, unless the dating prior art; cumstances of the case. (IV) documents relating to any licensing of, or parties jointly agree to modify the number of ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this other transfer of rights to, the patent or patents production requests without leave of the court. section shall be construed to limit the ability of at issue before the date on which the complaint (iv) The court may consider contested requests a court to grant any stay, expand any stay is filed; granted under this section, or grant any motion for up to 5 additional custodians per producing (V) documents sufficient to show profit attrib- to intervene, if otherwise permitted by law. party, upon a showing of a distinct need based utable to the claimed invention of the patent or ‘‘(g) DEFINITIONS.—In this section: on the size, complexity, and issues of the case. patents at issue; ‘‘(1) COVERED CUSTOMER.—The term ‘covered (v) If a party requests the discovery of elec- (VI) documents relating to any knowledge by customer’ means a party accused of infringing a tronic communication for additional custodians the accused infringer of the patent or patents at patent or patents in dispute based on a covered beyond the limits agreed to by the parties or issue before the date on which the complaint is product or process. granted by the court, the requesting party shall filed; ‘‘(2) COVERED MANUFACTURER.—The term bear all reasonable costs caused by such addi- (VII) documents relating to any knowledge by ‘covered manufacturer’ means a person that tional discovery. the patentee of infringement of the patent or manufactures or supplies, or causes the manu- (C) ADDITIONAL DOCUMENT DISCOVERY.— patents at issue before the date on which the facture or supply of, a covered product or proc- Whether the following should apply: complaint is filed; ess or a relevant part thereof. (i) IN GENERAL.—Each party to the action may (VIII) documents relating to any licensing ‘‘(3) COVERED PRODUCT OR PROCESS.—The seek any additional document discovery other- term or pricing commitment to which the patent term ‘covered product or process’ means a prod- wise permitted under the Federal Rules of Civil or patents may be subject through any agency uct, process, system, service, component, mate- Procedure, if such party bears the reasonable or standard-setting body; and rial, or apparatus, or relevant part thereof, costs, including reasonable attorney’s fees, of (IX) documents sufficient to show any mark- that— the additional document discovery. ing or other notice provided of the patent or ‘‘(A) is alleged to infringe the patent or pat- (ii) REQUIREMENTS FOR ADDITIONAL DOCUMENT patents at issue; and ents in dispute; or DISCOVERY.—Unless the parties mutually agree (ii) does not include computer code, except as ‘‘(B) implements a process alleged to infringe otherwise, no party may be permitted additional specified in paragraph (2)(C)(v). (B) ELECTRONIC COMMUNICATION.—The term the patent or patents in dispute.’’. document discovery unless such a party posts a ‘‘electronic communication’’ means any form of (b) CONFORMING AMENDMENT.—The table of bond, or provides other security, in an amount electronic communication, including email, text sections for chapter 29 of title 35, United States sufficient to cover the expected costs of such ad- message, or instant message. Code, is amended by striking the item relating to ditional document discovery, or makes a show- (4) IMPLEMENTATION BY THE DISTRICT section 296 and inserting the following: ing to the court that such party has the finan- cial capacity to pay the costs of such additional COURTS.—Not later than 6 months after the date ‘‘296. Stay of action against customer.’’. document discovery. on which the Judicial Conference has developed (c) EFFECTIVE DATE.—The amendments made (iii) LIMITS ON ADDITIONAL DOCUMENT DIS- the rules and procedures required by this sub- by this section shall take effect on the date of COVERY.—A court, upon motion, may determine section, each United States district court and the enactment of this Act and shall apply to any that a request for additional document discovery the United States Court of Federal Claims shall action for which a complaint is filed on or after is excessive, irrelevant, or otherwise abusive and revise the applicable local rules for such court to the first day of the 30-day period that ends on may set limits on such additional document dis- implement such rules and procedures. (5) AUTHORITY FOR JUDICIAL CONFERENCE TO that date. covery. REVIEW AND MODIFY.— SEC. 6. PROCEDURES AND PRACTICES TO IMPLE- (iv) GOOD CAUSE MODIFICATION.—A court, (A) STUDY OF EFFICACY OF RULES AND PROCE- MENT RECOMMENDATIONS OF THE upon motion and for good cause shown, may JUDICIAL CONFERENCE. DURES.—The Judicial Conference shall study the modify the requirements of subparagraphs (A) efficacy of the rules and procedures required by (a) JUDICIAL CONFERENCE RULES AND PROCE- and (B) and any definition under paragraph DURES ON DISCOVERY BURDENS AND COSTS.— this subsection during the 4-year period begin- (3). Not later than 30 days after the pretrial con- ning on the date on which such rules and proce- (1) RULES AND PROCEDURES.—The Judicial ference under Rule 16 of the Federal Rules of Conference of the United States, using existing dures by the district courts and the United Civil Procedure, the parties shall jointly submit States Court of Federal Claims are first imple- resources, shall develop rules and procedures to any proposed modifications of the requirements implement the issues and proposals described in mented. The Judicial Conference may modify of subparagraphs (A) and (B) and any defini- such rules and procedures following such 4-year paragraph (2) to address the asymmetries in dis- tion under paragraph (3), unless the parties do covery burdens and costs in any civil action period. not agree, in which case each party shall submit (B) INITIAL MODIFICATIONS.—Before the expi- arising under any Act of Congress relating to any proposed modification of such party and a ration of the 4-year period described in subpara- patents. Such rules and procedures shall include summary of the disagreement over the modifica- graph (A), the Judicial Conference may modify how and when payment for document discovery tion. the requirements under this subsection— in addition to the discovery of core documentary (v) COMPUTER CODE.—A court, upon motion (i) by designating categories of ‘‘core docu- evidence is to occur, and what information must and for good cause shown, may determine that mentary evidence’’, in addition to those des- be presented to demonstrate financial capacity computer code should be included in the dis- ignated under paragraph (3)(A), as the Judicial before permitting document discovery in addi- covery of core documentary evidence. The dis- Conference determines to be appropriate and tion to the discovery of core documentary evi- covery of computer code shall occur after the necessary; and dence. parties have exchanged initial disclosures and (ii) as otherwise necessary to prevent a mani- (2) RULES AND PROCEDURES TO BE CONSID- other core documentary evidence. fest injustice, the imposition of a requirement ERED.—The rules and procedures required under (D) DISCOVERY SEQUENCE AND SCOPE.—Wheth- the costs of which clearly outweigh its benefits, paragraph (1) should address each of the fol- er the parties shall discuss and address in the or a result that could not reasonably have been lowing issues and proposals: written report filed pursuant to Rule 26(f) of the intended by the Congress. (A) DISCOVERY OF CORE DOCUMENTARY EVI- Federal Rules of Civil Procedure the views and (b) JUDICIAL CONFERENCE PATENT CASE MAN- DENCE.—Whether and to what extent each party proposals of each party on the following: AGEMENT.—The Judicial Conference of the to the action is entitled to receive core documen- (i) When the discovery of core documentary United States, using existing resources, shall de- tary evidence and shall be responsible for the evidence should be completed. velop case management procedures to be imple- costs of producing core documentary evidence (ii) Whether additional document discovery mented by the United States district courts and within the possession or control of each such will be sought under subparagraph (C). the United States Court of Federal Claims for party, and whether and to what extent each (iii) Any issues about infringement, invalidity, any civil action arising under any Act of Con- party to the action may seek nondocumentary or damages that, if resolved before the addi- gress relating to patents, including initial dis- discovery as otherwise provided in the Federal tional discovery described in subparagraph (C) closure and early case management conference Rules of Civil Procedure. commences, might simplify or streamline the practices that— (B) ELECTRONIC COMMUNICATION.—If the par- case, including the identification of any terms (1) will identify any potential dispositive ties determine that the discovery of electronic or phrases relating to any patent claim at issue issues of the case; and communication is appropriate, whether such to be construed by the court and whether the (2) focus on early summary judgment motions discovery shall occur after the parties have ex- early construction of any of those terms or when resolution of issues may lead to expedited changed initial disclosures and core documen- phrases would be helpful. disposition of the case.

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(c) REVISION OF FORM FOR PATENT INFRINGE- by disabled veterans, service-disabled veterans, ate a report on the findings and recommenda- MENT.— women, and minority entrepreneurs in planning tions of the Director from the study required (1) ELIMINATION OF FORM.—The Supreme and executing the outreach efforts by the Office. under paragraph (1). Court, using existing resources, shall eliminate (b) IMPROVING INFORMATION TRANSPARENCY (c) STUDY ON PATENT QUALITY AND ACCESS TO Form 18 in the Appendix to the Federal Rules of FOR SMALL BUSINESS AND THE UNITED STATES THE BEST INFORMATION DURING EXAMINATION.— Civil Procedure (relating to Complaint for Pat- PATENT AND TRADEMARK OFFICE USERS.— (1) GAO STUDY.—The Comptroller General of ent Infringement), effective on the date of the (1) WEB SITE.—Using existing resources, the the United States shall conduct a study on pat- enactment of this Act. Director shall create a user-friendly section on ent examination at the Office and the tech- (2) REVISED FORM.—The Supreme Court may the official Web site of the Office to notify the nologies available to improve examination and prescribe a new form or forms setting out model public when a patent case is brought in Federal improve patent quality. allegations of patent infringement that, at a court and, with respect to each patent at issue (2) CONTENTS OF THE STUDY.—The study re- minimum, notify accused infringers of the as- in such case, the Director shall include— quired under paragraph (1) shall include the serted claim or claims, the products or services (A) information disclosed under subsections following: accused of infringement, and the plaintiff’s the- (b) and (d) of section 290 of title 35, United (A) An examination of patent quality at the ory for how each accused product or service States Code, as added by section 4(a) of this Act; Office. meets each limitation of each asserted claim. and (B) An examination of ways to improve patent The Judicial Conference should exercise the au- (B) any other information the Director deter- quality, specifically through technology, that thority under section 2073 of title 28, United mines to be relevant. shall include examining best practices at foreign States Code, to make recommendations with re- (2) FORMAT.—In order to promote accessibility patent offices and the use of existing off-the- spect to such new form or forms. for the public, the information described in shelf technologies to improve patent examina- (d) PROTECTION OF INTELLECTUAL-PROPERTY paragraph (1) shall be searchable by patent tion. (C) A description of how patents are classi- LICENSES IN BANKRUPTCY.— number, patent art area, and entity. (1) IN GENERAL.—Section 1520(a) of title 11, SEC. 8. STUDIES ON PATENT TRANSACTIONS, fied. (D) An examination of procedures in place to United States Code, is amended— QUALITY, AND EXAMINATION. prevent double patenting through filing by ap- (A) in paragraph (3), by striking ‘‘; and’’ and (a) STUDY ON SECONDARY MARKET OVERSIGHT plicants in multiple art areas. inserting a semicolon; FOR PATENT TRANSACTIONS TO PROMOTE TRANS- (E) An examination of the types of off-the- (B) in paragraph (4), by striking the period at PARENCY AND ETHICAL BUSINESS PRACTICES.— shelf prior art databases and search software the end and inserting ‘‘; and’’; and (1) STUDY REQUIRED.—The Director, in con- (C) by inserting at the end the following new sultation with the Secretary of Commerce, the used by foreign patent offices and governments, paragraph: Secretary of the Treasury, the Chairman of the particularly in Europe and Asia, and whether ‘‘(5) section 365(n) applies to intellectual prop- Securities and Exchange Commission, the heads those databases and search tools could be used erty of which the debtor is a licensor or which of other relevant agencies, and interested par- by the Office to improve patent examination. (F) An examination of any other areas the the debtor has transferred.’’. ties, shall, using existing resources of the Office, Comptroller General determines to be relevant. (2) TRADEMARKS.— conduct a study— (3) REPORT ON STUDY.—Not later than 6 (A) IN GENERAL.—Section 101(35A) of title 11, (A) to develop legislative recommendations to months after the date of the enactment of this United States Code, is amended— ensure greater transparency and accountability Act, the Comptroller General shall submit to the (i) in subparagraph (E), by striking ‘‘or’’; in patent transactions occurring on the sec- Committee on the Judiciary of the House of Rep- (ii) in subparagraph (F), by striking ‘‘title ondary market; resentatives and the Committee on the Judiciary 17;’’ and inserting ‘‘title 17; or’’; and (B) to examine the economic impact that the of the Senate a report on the findings and rec- (iii) by adding after subparagraph (F) the fol- patent secondary market has on the United ommendations from the study required by this lowing new subparagraph: States; subsection, including recommendations for any ‘‘(G) a trademark, service mark, or trade (C) to examine licensing and other oversight changes to laws and regulations that will im- name, as those terms are defined in section 45 of requirements that may be placed on the patent prove the examination of patent applications the Act of July 5, 1946 (commonly referred to as secondary market, including on the participants and patent quality. the ‘Trademark Act of 1946’) (15 U.S.C. 1127);’’. in such markets, to ensure that the market is a (d) STUDY ON PATENT SMALL CLAIMS COURT.— (B) CONFORMING AMENDMENT.—Section level playing field and that brokers in the mar- (1) STUDY REQUIRED.— 365(n)(2) of title 11, United States Code, is ket have the requisite expertise and adhere to (A) IN GENERAL.—The Director of the Admin- amended— ethical business practices; and istrative Office of the United States Courts, in (i) in subparagraph (B)— (D) to examine the requirements placed on consultation with the Director of the Federal (I) by striking ‘‘royalty payments’’ and insert- other markets. Judicial Center and the United States Patent ing ‘‘royalty or other payments’’; and (2) REPORT ON STUDY.—Not later than 1 year and Trademark Office, shall, using existing re- (II) by striking ‘‘and’’ after the semicolon; after the date of the enactment of this Act, the (ii) in subparagraph (C), by striking the pe- sources, conduct a study to examine the idea of Director shall submit a report to the Committee developing a pilot program for patent small riod at the end of clause (ii) and inserting ‘‘; on the Judiciary of the House of Representatives and’’; and claims courts in certain judicial districts within and the Committee on the Judiciary of the Sen- the existing patent pilot program mandated by (iii) by adding at the end the following new ate on the findings and recommendations of the subparagraph: Public Law 111–349. Director from the study required under para- (B) CONTENTS OF STUDY.—The study under ‘‘(D) in the case of a trademark, service mark, graph (1). or trade name, the trustee shall not be relieved subparagraph (A) shall examine— (b) STUDY ON PATENTS OWNED BY THE UNITED (i) the number of and qualifications for judges of a contractual obligation to monitor and con- STATES GOVERNMENT.— that could serve on such small claims courts; trol the quality of a licensed product or serv- (1) STUDY REQUIRED.—The Director, in con- (ii) how such small claims courts would be ice.’’. sultation with the heads of relevant agencies designated and the necessary criteria for such (3) EFFECTIVE DATE.—The amendments made and interested parties, shall, using existing re- designation; by this subsection shall take effect on the date sources of the Office, conduct a study on pat- (iii) the costs that would be incurred for estab- of the enactment of this Act and shall apply to ents owned by the United States Government lishing, maintaining, and operating such a pilot any case that is pending on, or for which a peti- that— program; and tion or complaint is filed on or after, such date (A) examines how such patents are licensed (iv) the steps that would be taken to ensure of enactment. and sold, and any litigation relating to the li- that the courts in the pilot program are not mis- SEC. 7. SMALL BUSINESS EDUCATION, OUT- censing or sale of such patents; used for abusive patent litigation. REACH, AND INFORMATION ACCESS. (B) provides legislative and administrative (2) REPORT ON STUDY.—Not later than 1 year (a) SMALL BUSINESS EDUCATION AND OUT- recommendations on whether there should be re- after the date of the enactment of this Act, the REACH.— strictions placed on patents acquired from the Director of the Administrative Office of the (1) RESOURCES FOR SMALL BUSINESS.—Using United States Government; United States Courts shall submit a report to the existing resources, the Director shall develop (C) examines whether or not each relevant Committee on the Judiciary of the House of Rep- educational resources for small businesses to ad- agency maintains adequate records on the pat- resentatives and the Committee on the Judiciary dress concerns arising from patent infringement. ents owned by such agency, specifically whether of the Senate on the findings and recommenda- (2) SMALL BUSINESS PATENT OMBUDSMAN.—The such agency addresses licensing, assignment, tions of the Director of the Administrative Office Patent Ombudsman Program established under and Government grants for technology related from the study required under paragraph (1). section 28 of the Leahy-Smith America Invents to such patents; and (e) STUDY ON DEMAND LETTERS.— Act (Public Law 112–29; 125 Stat. 339; 35 U.S.C. (D) provides recommendations to ensure that (1) STUDY.—The Director, in consultation 2 note) shall coordinate with the existing small each relevant agency has an adequate point of with the heads of other appropriate agencies, business outreach programs of the Office, and contact that is responsible for managing the shall conduct a study of the prevalence of the the relevant offices at the Small Business Ad- patent portfolio of the agency. practice of sending patent demand letters in bad ministration and the Minority Business Devel- (2) REPORT ON STUDY.—Not later than 6 faith and the extent to which that practice may, opment Agency, to provide education and months after the date of the enactment of this through fraudulent or deceptive practices, im- awareness on abusive patent litigation prac- Act, the Director shall submit to the Committee pose a negative impact on the marketplace. tices. The Director may give special consider- on the Judiciary of the House of Representatives (2) REPORT TO CONGRESS.—Not later than 1 ation to the unique needs of small firms owned and the Committee on the Judiciary of the Sen- year after the date of the enactment of this Act,

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Such regulations shall apply to any dis- rectly, that the recipient or anyone affiliated idate a patent under section 282(b), including claimer filed after a patent has issued. A dis- with the recipient is or may be infringing the construing each claim of the patent in accord- claimer, when filed, shall be considered for the patent. ance with the ordinary and customary meaning purpose of determining the validity of the pat- (f) STUDY ON BUSINESS METHOD PATENT of such claim as understood by one of ordinary ent under section 106 of title 35, United States QUALITY.— skill in the art and the prosecution history per- Code. (1) GAO STUDY.—The Comptroller General of taining to the patent; and (3) CONFORMING AMENDMENT.—The table of the United States shall conduct a study on the ‘‘(B) if a court has previously construed the sections for chapter 10 of title 35, United States volume and nature of litigation involving busi- claim or a claim term in a civil action in which Code, is amended by adding at the end the fol- ness method patents. the patent owner was a party, the Office shall lowing new item: (2) CONTENTS OF STUDY.—The study required consider such claim construction.’’. ‘‘106. Prior art in cases of double pat- under paragraph (1) shall focus on examining (2) POST-GRANT REVIEW.—Section 326(a) of the quality of business method patents asserted title 35, United States Code, is amended— enting.’’. in suits alleging patent infringement, and may (A) in paragraph (11), by striking ‘‘; and’’ and (4) EXCLUSIVE RULE.—A patent subject to sec- include an examination of any other areas that inserting a semicolon; tion 106 of title 35, United States Code, as added the Comptroller General determines to be rel- (B) in paragraph (12), by striking the period by paragraph (1), shall not be held invalid on evant. at the end and inserting ‘‘; and’’; and any nonstatutory, double-patenting ground. (3) REPORT TO CONGRESS.—Not later than 6 (C) by adding at the end the following new (5) EFFECTIVE DATE.—The amendments made months after the date of the enactment of this paragraph: by this subsection shall take effect on the date Act, the Comptroller General shall submit to the ‘‘(13) providing that for all purposes under of the enactment of this Act and shall apply to Committee on the Judiciary of the House of Rep- this chapter— a patent or patent application only if both the resentatives and the Committee on the Judiciary ‘‘(A) each claim of a patent shall be construed first and second patents described in section 106 of the Senate a report on the findings and rec- as such claim would be in a civil action to inval- of title 35, United States Code, as added by ommendations from the study required by this idate a patent under section 282(b), including paragraph (1), are patents or patent applica- subsection, including recommendations for any construing each claim of the patent in accord- tions that are described in section 3(n)(1) of the changes to laws or regulations that the Comp- ance with the ordinary and customary meaning Leahy-Smith America Invents Act (35 U.S.C. 100 troller General considers appropriate on the of such claim as understood by one of ordinary note). basis of the study. skill in the art and the prosecution history per- (e) PTO PATENT REVIEWS.— SEC. 9. IMPROVEMENTS AND TECHNICAL COR- taining to the patent; and (1) CLARIFICATION.— RECTIONS TO THE LEAHY-SMITH ‘‘(B) if a court has previously construed the (A) SCOPE OF PRIOR ART.—Section AMERICA INVENTS ACT. claim or a claim term in a civil action in which 18(a)(1)(C)(i) of the Leahy-Smith America In- (a) REPEAL OF CIVIL ACTION TO OBTAIN A the patent owner was a party, the Office shall vents Act (35 U.S.C. 321 note) is amended by PATENT.— consider such claim construction.’’. striking ‘‘section 102(a)’’ and inserting ‘‘sub- (1) REPEAL.—Section 145 of title 35, United (3) TECHNICAL AND CONFORMING AMEND- section (a) or (e) of section 102’’. States Code, is repealed. MENT.—Section 18(a)(1)(A) of the Leahy-Smith (B) EFFECTIVE DATE.—The amendment made (2) CONFORMING AMENDMENTS.— America Invents Act (Public Law 112–29; 126 by subparagraph (A) shall take effect on the (A) FEDERAL CIRCUIT JURISDICTION.—Section Stat. 329; 35 U.S.C. 321 note) is amended by date of the enactment of this Act and shall 1295(a)(4) of title 28, United States Code, is striking ‘‘Section 321(c)’’ and inserting ‘‘Sec- apply to any proceeding pending on, or filed on amended— tions 321(c) and 326(a)(13)’’. or after, such date of enactment. (i) in subparagraph (A), by striking ‘‘except (4) EFFECTIVE DATE.—The amendments made (2) AUTHORITY TO WAIVE FEE.—Subject to that an applicant or a party’’ and all that fol- by this subsection shall take effect upon the ex- available resources, the Director may waive lows through the end of the subparagraph and piration of the 90-day period beginning on the payment of a filing fee for a transitional pro- inserting the following: ‘‘except that a party to date of the enactment of this Act, and shall ceeding described under section 18(a) of the a derivation proceeding may also have remedy apply to any proceeding under chapter 31 or 32 Leahy-Smith America Invents Act (35 U.S.C. 321 by civil action under section 146 of title 35; an of title 35, United States Code, as the case may note). appeal under this subparagraph of a decision of be, for which the petition for review is filed on (f) CLARIFICATION OF LIMITS ON PATENT TERM the Board with respect to a derivation pro- or after such effective date. ADJUSTMENT.— ceeding shall waive the right of such party to (d) CODIFICATION OF THE DOUBLE-PATENTING (1) AMENDMENTS.—Section 154(b)(1)(B) of title proceed under section 146 of title 35;’’; and DOCTRINE FOR FIRST-INVENTOR-TO-FILE PAT- 35, United States Code, is amended— (ii) in subparagraph (C), by striking ‘‘section ENTS.— (A) in the matter preceding clause (i), by 145, 146, or’’ and inserting ‘‘section 146 or’’. (1) AMENDMENT.—Chapter 10 of title 35, striking ‘‘not including—’’ and inserting ‘‘the (B) FEDERAL CIRCUIT APPEAL.—Section 141(a) United States Code, is amended by adding at the term of the patent shall be extended 1 day for of title 35, United States Code, is amended— end the following new section: (i) by striking ‘‘may appeal the Board’s deci- each day after the end of that 3-year period ‘‘§ 106. Prior art in cases of double patenting sion to’’ and inserting ‘‘may appeal the Board’s until the patent is issued, not including—’’; (B) in clause (i), by striking ‘‘consumed by decision only to’’; and ‘‘A claimed invention of a patent issued under (ii) by striking the second sentence. section 151 (referred to as the ‘first patent’) that continued examination of the application re- (C) ADJUSTMENT OF PATENT TERM.—Section is not prior art to a claimed invention of an- quested by the applicant’’ and inserting ‘‘con- 154(b)(1)(A)(iii) of title 35, United States Code, is other patent (referred to as the ‘second patent’) sumed after continued examination of the appli- amended by striking ‘‘section 141, 145, or 146’’ shall be considered prior art to the claimed in- cation is requested by the applicant’’; and inserting ‘‘section 141 or 146’’. vention of the second patent for the purpose of (C) in clause (iii), by striking the comma at (D) CLERICAL AMENDMENT.—The table of sec- determining the nonobviousness of the claimed the end and inserting a period; and tions for chapter 13 of title 35, United States invention of the second patent under section 103 (D) by striking the matter following clause Code, is amended by repealing the item relating if— (iii). to section 145. ‘‘(1) the claimed invention of the first patent (2) EFFECTIVE DATE.—The amendments made (3) EFFECTIVE DATE.—The amendments made was effectively filed under section 102(d) on or by this subsection shall take effect on the date by this subsection shall take effect on the date before the effective filing date of the claimed in- of the enactment of this Act and apply to any of the enactment of this Act and apply to any vention of the second patent; patent application or patent that is pending on, proceeding in which a decision is made by the ‘‘(2) either— or filed on or after, such date of enactment. Patent Trial and Appeal Board on or after such ‘‘(A) the first patent and second patent name (g) CLARIFICATION OF JURISDICTION.— date of enactment. the same inventor; or (1) IN GENERAL.—The Federal interest in pre- (b) POST-GRANT REVIEW AMENDMENT.—Sec- ‘‘(B) the claimed invention of the first patent venting inconsistent final judicial determina- tion 325(e)(2) of title 35, United States Code is would constitute prior art to the claimed inven- tions as to the legal force or effect of the claims amended by striking ‘‘or reasonably could have tion of the second patent under section 102(a)(2) in a patent presents a substantial Federal issue raised’’. if an exception under section 102(b)(2) were that is important to the Federal system as a (c) USE OF DISTRICT-COURT CLAIM CONSTRUC- deemed to be inapplicable and the claimed in- whole. TION IN POST-GRANT AND INTER PARTES RE- vention of the first patent was, or were deemed (2) APPLICABILITY.—Paragraph (1)— VIEWS.— to be, effectively filed under section 102(d) be- (A) shall apply to all cases filed on or after, (1) INTER PARTES REVIEW.—Section 316(a) of fore the effective filing date of the claimed in- or pending on, the date of the enactment of this title 35, United States Code, is amended— vention of the second patent; and Act; and

VerDate Mar 15 2010 02:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00023 Fmt 0636 Sfmt 6333 E:\CR\FM\A05DE7.007 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7532 CONGRESSIONAL RECORD — HOUSE December 5, 2013 (B) shall not apply to a case in which a Fed- any action in which the Office files a complaint fringing instrumentality that competes with eral court has issued a ruling on whether the on or after such date of enactment. a product sold or offered for sale, or a proc- case or a claim arises under any Act of Congress (7) PATENT OWNER RESPONSE.— ess used in manufacture, by a party alleging relating to patents or plant variety protection (A) CONDUCT OF INTER PARTES REVIEW.—Para- infringement. before the date of the enactment of this Act. graph (8) of section 316(a) of title 35, United ‘‘(c) EXCLUSION FROM DISCOVERY LIMITA- (h) PATENT PILOT PROGRAM IN CERTAIN DIS- States Code, is amended by striking ‘‘the peti- TION.—The parties may voluntarily consent TRICT COURTS DURATION.— tion under section 313’’ and inserting ‘‘the peti- to be excluded, in whole or in part, from the (1) DURATION.—Section 1(c) of Public Law tion under section 311’’. limitation on discovery provided under sub- 111–349 (124 Stat. 3674; 28 U.S.C. 137 note) is (B) CONDUCT OF POST-GRANT REVIEW.—Para- section (a) if at least one plaintiff and one amended to read as follows: graph (8) of section 326(a) of title 35, United defendant enter into a signed stipulation, to ‘‘(c) DURATION.—The program established States Code, is amended by striking ‘‘the peti- be filed with and signed by the court. With under subsection (a) shall be maintained using tion under section 323’’ and inserting ‘‘the peti- regard to any discovery excluded from the existing resources, and shall terminate 20 years tion under section 321’’. requirements of subsection (a) under the after the end of the 6-month period described in (C) EFFECTIVE DATE.—The amendments made signed stipulation, with respect to such par- subsection (b).’’. by this paragraph shall take effect on the date ties, such discovery shall proceed according (2) EFFECTIVE DATE.—The amendment made of the enactment of this Act. to the Federal Rules of Civil Procedure.’’. by paragraph (1) shall take effect on the date of (8) INTERNATIONAL APPLICATIONS.— Page 35, strike line 16 and all that follows the enactment of this Act. (A) AMENDMENTS.—Section 202(b) of the Pat- through page 36, line 3, and insert the fol- (i) TECHNICAL CORRECTIONS.— ent Law Treaties Implementation Act of 2012 lowing: (1) NOVELTY.— (Public Law 112–211; 126 Stat. 1536) is amend- (1) IN GENERAL.—Section 1522 of title 11, (A) AMENDMENT.—Section 102(b)(1)(A) of title ed— United States Code, is amended by adding at 35, United States Code, is amended by striking (i) by striking paragraph (7); and the end the following: ‘‘the inventor or joint inventor or by another’’ (ii) by redesignating paragraphs (8) and (9) as ‘‘(e) Section 365(n) shall apply to cases and inserting ‘‘the inventor or a joint inventor paragraphs (7) and (8), respectively. under this chapter. If the foreign representa- or another’’. (B) EFFECTIVE DATE.—The amendments made tive rejects or repudiates a contract under (B) EFFECTIVE DATE.—The amendment made by subparagraph (A) shall be effective as if in- which the debtor is a licensor of intellectual by subparagraph (A) shall be effective as if in- cluded in title II of the Patent Law Treaties Im- property, the licensee under such contract cluded in the amendment made by section plementation Act of 2012 (Public Law 112–21). shall be entitled to make the election and 3(b)(1) of the Leahy-Smith America Invents Act SEC. 10. EFFECTIVE DATE. exercise the rights described in section (Public Law 112–29). Except as otherwise provided in this Act, the 365(n).’’. (2) INVENTOR’S OATH OR DECLARATION.— provisions of this Act shall take effect on the Page 38, line 1, strike ‘‘OMBUDSMAN’’ and (A) AMENDMENT.—The second sentence of sec- date of the enactment of this Act, and shall insert ‘‘OUTREACH’’. tion 115(a) of title 35, United States Code, is apply to any patent issued, or any action filed, Page 38, strike line 2 and all that follows amended— on or after that date. through ‘‘programs’’ on line 6 and insert (i) by striking ‘‘Except as otherwise provided’’ The Acting CHAIR. No amendment ‘‘The existing small business patent out- and inserting ‘‘Except for an application filed reach programs’’. under section 118 or as otherwise provided’’; and to that amendment in the nature of a substitute shall be in order except Page 38, lines 8 and 9, strike ‘‘to provide’’ (ii) by striking ‘‘shall execute’’ and inserting and insert ‘‘shall provide’’. ‘‘may be required by the Director to execute’’. those printed in part A of House Report Page 40, line 13, strike ‘‘1 year’’ and insert (B) EFFECTIVE DATE.—The amendments made 113–283. Each such amendment may be ‘‘18 months’’. by subparagraph (A) shall be effective as if in- offered only in the order printed in the Page 41, lines 20 and 21, strike ‘‘6 months’’ cluded in the amendment made by section report, by a Member designated in the and insert ‘‘1 year’’. 4(a)(1) of the Leahy-Smith America Invents Act report, shall be considered read, shall Page 42, line 6, strike ‘‘shall conduct a (Public Law 112–29). be debatable for the time specified in study’’ and insert ‘‘shall, using existing re- (3) ASSIGNEE FILERS.— sources, conduct a study’’. (A) BENEFIT OF EARLIER FILING DATE; RIGHT the report equally divided and con- Page 43, lines 9 and 10, strike ‘‘6 months’’ OF PRIORITY.—Section 119(e)(1) of title 35, trolled by the proponent and an oppo- and insert ‘‘1 year’’. United States Code, is amended, in the first sen- nent, shall not be subject to amend- Page 44, line 3, strike ‘‘courts’’ and insert tence, by striking ‘‘by an inventor or inventors ment, and shall not be subject to de- ‘‘procedures’’. named’’ and inserting ‘‘that names the inventor mand for a division of the question. Page 44, strike lines 8 through 13 and insert or a joint inventor’’. AMENDMENT NO. 1 OFFERED BY MR. GOODLATTE the following: (B) BENEFIT OF EARLIER FILING DATE IN THE The Acting CHAIR. It is now in order (i) the necessary criteria for using small UNITED STATES.—Section 120 of title 35, United claims procedures; States Code, is amended, in the first sentence, to consider amendment No. 1 printed in Page 44, line 14, strike ‘‘(iii)’’ and insert by striking ‘‘names an inventor or joint inven- part A of House Report 113–283. ‘‘(ii)’’. tor’’ and inserting ‘‘names the inventor or a Mr. GOODLATTE. Mr. Chairman, I Page 44, line 17, strike ‘‘(iv)’’ and insert joint inventor’’. have an amendment at the desk made ‘‘(iii)’’. (C) EFFECTIVE DATE.—The amendments made in order under the rule. Page 44, line 18, strike ‘‘courts’’ and insert by this paragraph shall take effect on the date The Acting CHAIR. The Clerk will ‘‘procedures used’’. of the enactment of this Act and shall apply to designate the amendment. Page 45, lines 7 and 8, strike ‘‘shall conduct any patent application, and any patent issuing The text of the amendment is as fol- a study’’ and insert ‘‘shall, using existing re- from such application, that is filed on or after sources, conduct a study’’. September 16, 2012. lows: Page 46, line 4, strike ‘‘shall conduct a (4) DERIVED PATENTS.— Page 12, line 3, strike ‘‘subsection (b)’’ and study’’ and insert ‘‘shall, using existing re- (A) AMENDMENT.—Section 291(b) of title 35, insert ‘‘subsections (b) and (c)’’. sources, conduct a study’’. United States Code, is amended by striking ‘‘or Page 12, strike lines 14 through 25 and in- Page 46, lines 13 and 14, strike ‘‘6 months’’ joint inventor’’ and inserting ‘‘or a joint inven- sert the following: and insert ‘‘1 year’’. tor’’. ‘‘(1) TIMELY RESOLUTION OF ACTIONS.—In Page 52, line 5, strike ‘‘name the same in- (B) EFFECTIVE DATE.—The amendment made the case of an action under any provision of ventor’’ and insert ‘‘name the same indi- by subparagraph (A) shall be effective as if in- Federal law (including an action that in- vidual or individuals as the inventor’’. cluded in the amendment made by section cludes a claim for relief arising under sec- Page 53, line 11, after ‘‘double-patenting 3(h)(1) of the Leahy-Smith America Invents Act tion 271(e)), for which resolution within a ground’’ insert ‘‘based on a patent described (Public Law No. 112–29). specified period of time of a civil action aris- in section 3(n)(1) of the Leahy-Smith Amer- (5) SPECIFICATION.—Notwithstanding section ing under any Act of Congress relating to ica Invents Act (35 U.S.C. 100 note)’’. 4(e) of the Leahy-Smith America Invents Act patents will necessarily affect the rights of a Page 53, lines 13-14, after ‘‘shall take ef- (Public Law 112–29; 125 Stat. 297), the amend- party with respect to the patent, the court fect’’ insert ‘‘upon the expiration of the 1- ments made by subsections (c) and (d) of section shall permit discovery, in addition to the year period beginning’’. 4 of such Act shall apply to any proceeding or discovery authorized under subsection (a), Page 55, line 10, strike ‘‘or patent’’. matter that is pending on, or filed on or after, before the ruling described in subsection (a) Page 57, strike lines 4 through 13 and insert the date of the enactment of this Act. is issued as necessary to ensure timely reso- the following: (6) TIME LIMIT FOR COMMENCING MISCONDUCT lution of the action.’’. (A) AMENDMENT.—The second sentence of PROCEEDINGS.— Page 13, insert after line 13 the following: section 115(a) of title 35, United States Code, (A) AMENDMENT.—The fourth sentence of sec- ‘‘(4) ACTIONS SEEKING RELIEF BASED ON COM- is amended by striking ‘‘shall execute’’ and tion 32 of title 35, United States Code, is amend- PETITIVE HARM.—The limitation on discovery inserting ‘‘may be required to execute’’. ed by striking ‘‘1 year’’ and inserting ‘‘2 years’’. provided under subsection (a) shall not apply Page 57, line 14, strike ‘‘amendments’’ and (B) EFFECTIVE DATE.—The amendment made to an action seeking a preliminary injunc- insert ‘‘amendment’’. by this paragraph shall take effect on the date tion to redress harm arising from the use, Page 59, lines 9 and 10, strike ‘‘2 years’’ and of the enactment of this Act and shall apply to sale, or offer for sale of any allegedly in- insert ‘‘18 months’’.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00024 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.007 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7533 The Acting CHAIR. Pursuant to the cooperative insolvency system that ager’s amendment. It would not. It House Resolution 429, the gentleman is integral to Chapter 15. would have the opposite effect. I from Virginia (Mr. GOODLATTE) and a So this, in short, is failing to address strongly urge my colleagues to support Member opposed each will control 5 another flawed revision to the Bank- the manager’s amendment. minutes. ruptcy Code, and Section 6(d) imposes Mr. Chairman, I reserve the balance The Chair recognizes the gentleman an impossible affirmative duty on a of my time. from Virginia. bankrupt licensor to monitor and con- Mr. CONYERS. Mr. Chairman, I yield Mr. GOODLATTE. Mr. Chairman, I trol the quality of the license, product, myself 15 seconds, before I yield to Mr. yield myself such time as I may con- or service, even if there is no money to WATT, merely to let you know that the sume. pay for this. National Bankruptcy Conference is op- The manager’s amendment was de- Please vote against this manager’s posed to this amendment and has set veloped based on discussions with a amendment. forth in a very detailed draft their rea- cross-range of industry stakeholders, Mr. Chairman, I reserve the balance sons for that. the input of Members from the House of my time. NATIONAL BANKRUPTCY CONFERENCE, and Senate, the courts, and the admin- Mr. GOODLATTE. Mr. Chairman, I Washington, DC, November 15, 2013. istration, including the U.S. Patent yield myself such time as I may con- Re H.R. 3309 (Innovation Act). and Trademark Office. sume. Hon. JOHN CONYERS, Jr., My amendment consists of technical It is unusual for a party in opposition Ranking Member, House Judiciary Committee, edits and a few modifications that im- to oppose a manager’s amendment be- House of Representatives, Washington, DC. DEAR CHAIRMAN, RANKING MEMBER, AND cause they don’t disagree with the pro- prove the bill. The manager’s amend- MEMBERS OF THE HOUSE JUDICIARY COM- ment includes clarifications and edits visions in the amendment but, rather, MITTEE: I am writing to you in my capacity to the limitations on discovery prior to say that they don’t make enough as Chair of the Committee on Legislation of a Markman or a claim construction changes. So, even though it is acknowl- the National Bankruptcy Conference (NBC or hearing. They ensure that the provi- edged that this improves the bill, that Conference). The NBC is a voluntary, non- sion works effectively and can be com- still causes opposition. partisan, not-for-profit organization com- plied with, providing additional discre- But I want to address what the gen- posed of about 60 of the nation’s leading tleman says he wants in the manager’s bankruptcy judges, professors and practi- tion for the courts to ensure the provi- tioners; it has provided advice to Congress sion does not result in reverse games- amendment. Section 365(n) of title XI on bankruptcy-related legislation for over 75 manship. prevents a bankruptcy trustee from years. The Conference takes substantive pol- The amendment also makes clarifica- terminating licenses to patents and icy positions on issues. It also provides tech- tions to the bankruptcy provisions so other intellectual property of the debt- nical advice on bankruptcy legislation with- that they work properly, ensuring that or. When Congress enacted Section out regard to its policy positions so that, to U.S. law is followed and not foreign 365(n) in 1989, it recognized that allow- the extent possible, such legislation will law. Further, it includes modifications ing patent and other IP licenses to be achieve the objectives intended by its sup- porters. to the deadlines for various studies to revoked in bankruptcy would be ex- The Innovation Act, which is primarily fo- provide the agencies enough time to tremely disruptive to the economy and cused on patent litigation reform, contains prepare and develop their reports. The damaging both to patent owners and to an amendment to section 1520 of chapter 15 manager’s amendment makes addi- licensing manufacturers. of the Bankruptcy Code that the Conference tional clarifications and modifications Manufacturers often invest billions opposes in its present form. The proposed that, on the whole, make necessary and of dollars in reliance on their right to amendment appears in SEC. 6. PROCE- practice a technology pursuant to a li- DURES AND PRACTICES TO IMPLEMENT positive improvements to our patent AND RECOMMENDATIONS TO THE JUDI- system. cense. Allowing the license to be elimi- CIAL CONFERENCE and provides as follows: The Innovation Act targets abusive nated in bankruptcy would create com- (d) PROTECTION OF INTELLECTUAL- patent litigation, protects the patent mercial uncertainty and would under- PROPERTY LICENSES IN BANKRUPTCY.— system, increases transparency, pre- mine manufacturing investment. (1) IN GENERAL.—Section 1520(a) of title vents extortion, and provides greater In recent years, some bankruptcy 11, United States Code, is amended— trustees have tried to subvert the pro- (A) in paragraph (3), by striking ‘‘; and’’ clarity. and inserting a semicolon; Mr. Chairman, I urge my colleagues tections of section 365(n) for U.S. intel- (B) in paragraph (4), by striking the period to support the amendment, and I re- lectual property by filing bankruptcy at the end and inserting ‘‘; and’’; and serve the balance of my time. in a foreign country and demanding (C) by inserting at the end the following Mr. CONYERS. Mr. Chairman, I rise that U.S. courts extend comity to ter- new paragraph: in opposition to the manager’s amend- mination of licenses to U.S. intellec- ‘(5) section 365(n) applies to intellectual property of which the debtor is a licensor or ment. tual property in the foreign proceeding. which the debtor has transferred.’’ The Acting CHAIR. The gentleman The provision that the gentleman (2) EFFECTIVE DATE.—The amendments from Michigan is recognized for 5 min- wants would eliminate important pro- made by this subsection shall take effect on utes. visions that would eliminate—the un- the date of the enactment of this Act and Mr. CONYERS. Just simply put, I derlying bill provisions eliminate this shall apply to any action for which a com- must oppose the manager’s amendment uncertainty and would guarantee that plaint is pending on, or filed on or after, such date of enactment. because it does not significantly alter licenses to U.S. patents and other IP Chapter 15 of the Bankruptcy Code, in- the underlying bill, which will be mak- will always be protected in U.S. courts. cluded in the 2005 amendments to the Code ing sweeping and unnecessary changes The gentleman wants something that with large bipartisan majorities, is designed to patent litigation and encroach upon would undermine that. to achieve worldwide cooperation in the liq- the independence of the Federal Judici- Failing to include this provision, a uidation or reorganization of a multi- ary. manufacturer deciding where to build a national company in order to preserve value Section 6(d) does not address the sub- new fabrication plant would face a for creditors and other stakeholders, espe- stantive deficiencies in the bill. 6(d), by powerful incentive to invest his re- cially employees. Its fundamental structure is ‘‘universalist’’ in that it requires that mandating U.S. law, applies in deter- sources in a foreign country that pro- each country recognize a foreign main pro- mining the rights of intellectual prop- tects IP licenses instead of in the ceeding in the debtor’s home country as the erty licensees, directly contravenes the United States. The gentleman’s provi- leader in the worldwide effort and that it co- important principles that pertain to sion that he would like to see in the operate with that jurisdiction to achieve the Chapter 15 of the Bankruptcy Code, manager’s amendment would encour- best results for all concerned. Among other which deals with transnational bank- age offshoring of U.S. manufacturing. advantages, this approach permits the sale of ruptcies. So I strongly support the language in whole divisions with assets and operations in Congress intended that Chapter 15 the manager’s amendment and object several nations as a single piece, which al- not mandate any one country’s sub- to the suggestion that his provision most always will yield a higher price. It is also essential to reorganization of a global stantive law should control, but Sec- that is not in this amendment, which business. tion 6(d) does exactly this and may en- we will also address later in the amend- Chapter 15 incorporated the UNCITRAL courage other countries to opt out of ment debate, would enhance the man- Model Law on Cross-Border Insolvency ‘‘to

VerDate Mar 15 2010 02:32 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00025 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.018 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7534 CONGRESSIONAL RECORD — HOUSE December 5, 2013 encourage cooperation between the United Automatically applying section 365(n) upon We believe the United States would make a States and foreign countries with respect to recognition of a foreign main proceeding mistake by going it alone and by failing to transnational insolvency cases.’’ While the would ignore the territorial limits of chapter let the courts develop the key issues under Model Law required modifications to fit into 15 to property within the territorial jurisdic- the existing statute. the existing judicial and legislative scheme, tion of the United States, since license Sincerely, chapter 15 followed the exhortation of grants by the foreign debtor may not be gov- SALLY S. NEELY, UNCITRAL: ‘‘Therefore, in order to achieve erned by U.S. law or may not even involve Chair, Legislation a satisfactory degree of harmonization and U.S. intellectual property. There should be a Committee of the Na- certainty, it is recommended that States choice of law analysis performed before sec- tional Bankruptcy [countries] make as few changes as possible tion 365(n) is applied in a chapter 15 case. Conference. in incorporating the model law into their Section 365(n) would then be applied in ap- Mr. Chairman, I yield the balance of legal systems.’’ The proposed amendment to propriate situations on an appropriate show- section 1520 violates the purpose of chapter ing under section 1522(a) and (b). Applying it our time to the distinguished gen- 15 to further international cooperation and, automatically, without considering whether tleman from North Carolina (Mr. to that end, the guidance of UNCITRAL to U.S. law should apply to the license in ques- WATT). minimize modifications to the Model Law. tion and without the safeguards of sections Mr. WATT. I thank the gentleman Adding a provision to chapter 15 that deals 1521 and 1522 would be detrimental to the for yielding time. with a special situation violates the prin- goals of the Model Law and chapter 15. Rath- Mr. Chairman, I want to rise not so ciple of uniformity that makes the Model er than enhancing a cross-border insolvency much in opposition to the manager’s Law a valuable mechanism for greater legal proceeding, automatic application of section amendment, but in opposition to the certainty for trade and investment. This is 365(n) would likely deter foreign representa- true even if one believes that, as a matter of tives from seeking recognition to obtain nec- bill and so that we can try to make public policy, the special situation should al- essary assistance for the foreign proceeding sure that people understand what it is ways be decided applying U.S. law. By such if a condition to recognition were entangle- that they are voting on. a unilateral, non-uniform amendment, the ment in the possible briar patch of licensee We set out to solve a problem of pat- United States invites other countries to rights under U.S. bankruptcy law. ent trolls, and that term has become a modify their versions of the Model Law in The genesis of section 6(d) of the Innova- convenient shorthand to refer to a ways that may be detrimental to United tion Act is likely the case of In re Qimonda class of plaintiffs who engage in abu- States parties in foreign proceedings. The AG, 462 B.R. 165 (Bankr. E.D. Va. 2011). situation addressed by the proposed amend- There, on the petition of the administrator sive litigation tactics against deep- ment is already before the courts and the appointed in Qimonda’s German main pro- pocketed alleged infringers as well as tools to address the situation are already ceeding, the bankruptcy court entered an individual inventors and small compa- within chapter 15. The courts can deal with order recognizing the foreign main pro- nies. the issue appropriately and predictably with- ceeding and, on the same date, entered a I certainly recognize, as I have in my out opening the door to other countries to Supplemental Order under section 1521 that previous statement, that there are en- reciprocate with their own deviations from applied several sections of the Bankruptcy tities that exploit the litigation sys- the Model Law. Code, including section 365, to the chapter 15 tem to gain leverage against busi- Section 1520, Effects of recognition of a for- case. Upon realizing that section 365(n) inter- eign main proceeding, provides automatic re- fered with his rights under the German insol- nesses, large and small, that represent lief on recognition of a foreign main pro- vency code to ‘‘elect non-performance’’ of a vital part of our economy, and I ceeding. It implements Article 20 of the contracts, the administrator sought modi- would like for Congress actually to Model Law by incorporating sections of the fication of the Supplemental Order. Licens- deal with that issue in a meaningful Bankruptcy Code that are consistent with ees of U.S. patents, who would lose the pro- way. the purpose of Article 20. Both Article 20 and tection of section 365(n) if section 365 no Unfortunately, this bill adopts an ex- section 1520 operate automatically upon rec- longer applied, objected. The Bankruptcy treme, unbalanced approach to address ognition of a foreign main proceeding and Court, on remand from the district court, those abuses. The term ‘‘patent troll’’ impose ‘‘effects’’ that ‘‘are necessary to found, under the facts and circumstances of allow steps to be taken to organize an or- that case, that there was a fundamental U.S. simply has no concrete contours in ap- derly and fair cross-border insolvency pro- policy favoring innovation and that elimi- plication, making it nearly impossible ceeding. . .’’ The fundamental effects nec- nating section 365(n) protection would be to craft legislation specifically tar- essary for an orderly and fair cross-border manifestly contrary to that policy. The geted to a category of entities or par- insolvency are (a) a stay of actions against court also ruled that the requested relief ticular business models. or concerning the debtor or its assets, rights, should be denied on the alternative section And because not only patent trolls obligations or liabilities, including a stay of 1522 ground that the interests of the licens- initiate litigation to enforce patent execution against the debtor’s assets and (b) ees would not be ‘‘sufficiently protected’’ if rights, legislation aimed at patent liti- a stay of the debtor’s transfer, encumbrance the requested relief were granted. The gation system must not erect unfair or disposition of assets. Section 1520 imposes Qimonda decision was certified for direct ap- the stay by incorporating the automatic peal to the Fourth Circuit. The Fourth Cir- barriers that deter legitimate, meri- stay of section 362 (but limited to the debtor cuit heard argument on September 17, 2013 torious claims of infringement, nor and its assets within the territorial jurisdic- but has not ruled. should this bill be treated as if it will tion of the United States) and the transfer Rather than passing legislation that would apply only in the troublesome jurisdic- restrictions of sections 549, 363 and 552. pre-empt the ruling of the Fourth Circuit tions in which these abuses are taking The Innovation Act would introduce into and conflict with the purpose of the Model place. section 1520 a section of the Bankruptcy Law and chapter 15, Congress should reject This bill has broad application across Code, section 365(n), that has nothing to do this amendment. As noted, relief is already our entire patent ecosystem. The bill with allowing ‘‘steps to be taken to organize available to licensees in appropriate cir- an orderly and fair cross-border insolvency cumstances under section 1522 if a foreign suffers from a rushed process and re- proceeding.’’ This would be a blow to the representative seeks to deprive them of their sponds to only a part of the constitu- goals of uniformity and harmonization em- rights under U.S. law. Applying section ency in the patent ecosystem. What is bodied in the Model Law and chapter 15. In- 365(n) to all foreign main proceedings would most regretful and regrettable to me is stead of a provision that affects all parties implicate licenses that are not within the that, I believe that with thoughtful, in- with an interest in a foreign proceeding, that territorial jurisdiction of the United States clusive deliberation, the goals of the effectively preserves the status quo and (po- and would be inconsistent with the ancillary bill could be achieved if we would sim- tentially) going concern value and that does nature of a chapter 15 case, to provide assist- ply take the time to do it. not intrude on the foreign proceeding, sec- ance to the main case in another country tion 365(n) is not concerned with preserva- where the debtor has the center of its main The Acting CHAIR. The time of the tion of the status quo and affects the rights interests. gentleman has expired. of a subset of licensees of intellectual prop- If the debtor’s property is sliced into na- Madam Chair, I rise in opposition to H.R. erty in the event that their license agree- tional bits, the cooperative approach of 3309. The term ‘‘patent troll’’ has become con- ment is rejected or otherwise subjected to chapter 15 and the Model Law is seriously venient shorthand to refer to a class of plain- nonperformance in a foreign main bank- handicapped. The proposed amendment does tiffs who engage in abusive litigation tactics ruptcy case of a debtor who is their licensor. just that as to intellectual property. Intel- against deep-pocketed alleged infringers as It may impose U.S. law on the foreign pro- lectual property is itself subject to a world- ceeding whether or not U.S. law should apply wide system of recognition and enforcement, well as individual inventors and small compa- to a particular license. If the legislation is which will be shattered for companies nies. I recognize that there are entities that ex- adopted, it should, at the very least, be lim- emerging from reorganization, creating a ploit the litigation system to gain leverage ited to licenses that are within the terri- host of difficult questions and serious uncer- against businesses large and small that rep- torial jurisdiction of the United States. tainty about these crucial property rights. resent a vital part of our economy. And I’d like

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00026 Fmt 0636 Sfmt 9920 E:\CR\FM\A05DE7.024 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7535 this Congress to find meaningful ways to ar- only legitimate patent owner will be subject to Mr. Chairman, upon introduction of rest this behavior. Unfortunately, H.R. 3309, the onerous litigation reforms, while the unso- this bill, the chairman released a state- the ‘‘Innovation Act,’’ adopts an extreme, un- phisticated individual or small inventor will face ment that section 3(b) of the bill, balanced approach to address these abuses. the very extortion this bill claims to address. ‘‘aligns fee shifting in patent cases The term ‘‘patent troll’’ simply has no con- This is a bad bill and I hope that my col- with the standard that is used for crete contours in application making it nearly leagues will vote to protect innovation by vot- awarding fees against the United impossible to craft legislation specifically tar- ing against this bill. States under the Equal Access to Jus- geting a category of entities or particular busi- Mr. GOODLATTE. Mr. Chairman, I tice Act.’’ ness model. And, because not only ‘‘patent yield myself the balance of my time. Unfortunately, the fee-shifting provi- Mr. Chairman, the provision that the trolls’’ initiate litigation to enforce patent rights, sion in this bill, even as amended, cher- gentleman from Michigan complains of legislation aimed at the patent litigation system ry-picks the most burdensome require- is supported by the Intellectual Prop- must not erect unfair barriers that deter legiti- ments from the Equal Access to Jus- mate, meritorious claims of infringement. Nor erty Owners Association, the 21st Cen- tury Coalition, which is a group of tice Act that mandate that judges should it be treated as if it will apply only to manufacturers, the Semiconductor In- award fees against the loser unless the most troublesome jurisdictions in which dustry Association. They very strongly they prove that their position was rea- such abuses are purportedly tolerated. support the provision in the bill that is sonably justified. This bill suffers from a rushed and insular enhanced in the manager’s amendment The bill was amended at the last process that responds to only one constitu- because, otherwise, we would be allow- minute of the markup presumably to ency of the patent litigation system and has ing a foreign trustee, a foreign bank- relax the burden on the nonprevailing resulted in a skewed product with inadequate ruptcy trustee to liquidate licenses and party to escape the requirement to pay public debate. create great uncertainty in the free the fees of the adverse party. I actually What is most regretful and regrettable to me market. That is definitely not what is supported the amendment during is that I believe that with thoughtful, inclusive intended by this legislation, and it markup relying on that presumption. deliberation, the goals of this bill are achiev- would create a giant loophole that Since then, however, it has become ap- able. The product before us, however, is des- would create incentives to locate busi- parent both based on the committee re- tined to produce unintended, but foreseeable, nesses, manufacturing businesses out- port and independent research that the adverse consequences. I will identify three: side the United States rather than in- amendment to change the ‘‘substan- First, with its illogical presumption that this side the United States. The language is tially justified’’ standard to a ‘‘reason- legislation will apply only to ‘‘patent trolls’’ who very definitely needed, and I urge my ably justified’’ standard is practically sue pristine, non-infringing defendants, this bill colleagues to support the manager’s meaningless. creates perverse incentives that will invite fur- amendment. As summarized in the CRS report ther litigation abuse. I have now been a mem- Mr. Chairman, I yield back the bal- that I will submit for the record, the ber of IP 21 years and a practicing lawyer 22 ance of my time. Senate Judiciary Committee in the years, and I can tell you with absolute cer- 96th Congress ‘‘considered and rejected tainty that legal gamesmanship is not the ex- b 1045 an amendment to the Equal Access to clusive domain of plaintiffs or even ‘‘patent The Acting CHAIR. The question is Justice Act that would have changed trolls.’’ By imposing lop-sided, disproportionate on the amendment offered by the gen- the pertinent language from ‘substan- obligations on one side of the litigation equa- tleman from Virginia (Mr. GOODLATTE). tially justified’ to ‘reasonably justi- tion, this bill creates nefarious incentives on The question was taken; and the Act- fied.’ ’’ Subsequently, the Supreme the other. I can guarantee you that if this bill ing Chair announced that the noes ap- Court in Pierce v. Underwood held that passes in its present form, there will be a sub- peared to have it. ‘‘substantially justified’’ actually sequent lobbying effort to curtail abuses by Mr. GOODLATTE. Mr. Chairman, I means reasonable. bad faith defendants who may engage in dila- demand a recorded vote. The Acting CHAIR. Pursuant to tory tactics, swamp plaintiffs with data dumps This troubling development high- clause 6 of rule XVIII, further pro- in response to reasonable discovery requests, lights the pitfalls to considering legis- ceedings on the amendment offered by and otherwise drive up the costs of litigation. lative language in haste. It also makes Second, another predictable, and I hope, the gentleman from Virginia will be my amendment all the more important unintended consequence of this bill is that it postponed. to a balanced and unbiased fee-shifting may saddle legitimate patent owners with ex- AMENDMENT NO. 2 OFFERED BY MR. WATT mechanism. orbitant and duplicative fee awards due to The Acting CHAIR. It is now in order The American rule, that each party sloppy drafting. Section 3(b) of the bill man- to consider amendment No. 2 printed in to litigation bears their own cost and dates that a judge award fees to the prevailing part A of House Report 113–283. attorney’s fees, is the bedrock of the Mr. WATT. Mr. Chairman, I have an party under certain circumstances. Presum- civil justice system. I generally oppose amendment at the desk which was ably the award will consist of reasonable costs litigation that erodes this rule because made in order under the rule. I believe it provides open access to our and attorneys’ fees incurred to litigate the en- The Acting CHAIR. The Clerk will tire case. However, section 4 likewise man- courts to anyone who has a grievance. designate the amendment. The departure from the American dates an award of fees to a prevailing party The text of the amendment is as fol- rule as enacted in the Equal Access to when the non-prevailing plaintiff failed to com- lows: Justice Act was far more complex than ply with the transparency obligations under the Page 5, insert the following after line 23 bill. This additional award is punitive and dupli- and redesignate succeeding subsections, and the provision extracted and incor- cative, and I hope a mistake. And the escape references thereto, accordingly: porated in this bill. For example, the hatches do not provide comfort. Courts and ‘‘(b) REDUCTION OR DENIAL OF AWARDS.— Equal Access to Justice Act prescribes legal commentators are loath to permit an ex- The court, in its discretion, may reduce the a fee cap of $125 per hour that is not in ception to become the rule. Instead, ‘‘special amount to be awarded under subsection (a), this bill. It also prohibits, with a cou- or deny an award, to the extent that the pre- circumstances’’ or awards unless ‘‘unjust’’ are ple of exceptions, fee awards to attor- vailing party during the course of the pro- neys whose net worth exceeds $2 mil- strictly applied to circumstances that are ceedings engaged in conduct that unduly and unique to the case and unusual in occurrence. unreasonably protracted the final resolution lion, to businesses with a net worth in Finally, and perhaps most invidious is the of the matter in controversy. excess of $7 million or more than 500 foreseeable possibility that this bill may be- The Acting CHAIR. Pursuant to employees. This limitation also did not come the victim of its own success. In the ef- House Resolution 429, the gentleman find its way into this provision in the fort to discourage the litigation by increasing from North Carolina (Mr. WATT) and a bill. the risks and obligations of ‘‘patent trolls’’, the Member opposed each will control 5 My amendment seeks to amend H.R. bill may very well succeed in driving the trolls minutes. 3309 with yet another feature of the out of the courtrooms. But it may also result The Chair recognizes the gentleman Equal Access to Justice Act that is not in the most nefarious and persistent of the from North Carolina. in the Innovation Act, which is the trolls retreating to an even more aggressive Mr. WATT. Mr. Chairman, I yield provision that gives a judge the flexi- use of demand letters which this bill does myself as much time as I may con- bility to deny or reduce an award that nothing to prevent. The end result will be that sume. would be required if the nonprevailing

VerDate Mar 15 2010 02:32 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00027 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.013 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7536 CONGRESSIONAL RECORD — HOUSE December 5, 2013 party could not establish that their po- in § 2412(b). First, it prescribes a fee cap un- mination of fees and other expenses only if sition, as we now know, was reason- less the court or agency determines that a the court finds that the failure to make an able. special factor justifies a higher fee. (Most fee award of fees and other expenses, or the cal- This amendment injects balance into statutes authorize awards of ‘‘reasonable’’ culation of the amount of the award, was un- this regime that represents a departure fees, with the court determining the supported by substantial evidence.’’ amount.) The cap was originally $75 per Prior to the 1985 amendments to EAJA, from the American rule. A judge should hour, but P.L. 104–121, 231–233, increased it to this provision stated that the court could be able to assess the behavior of all the $125 per hour for cases commenced on or modify an agency decision only if it found parties; otherwise, a wealthy party after the date of its enactment, which was ‘‘an abuse of discretion.’’ It was intended that is not concerned if they are im- March 29, 1996. Second, this portion of EAJA that the new standard—‘‘unsupported by sub- posed with the costs and fees of their does not allow (with two exceptions) fees to stantial evidence’’—permit ‘‘a broader scope adversary may engage in behavior in- be awarded to individuals whose net worth of review . . . consistent with the normal exceeds $2 million, or to businesses or orga- scope of judicial review of agency actions. tended to deplete the resources of the (2) ‘‘substantially justified.’’ The United poorer opposing party. The threshold nizations, including units of local govern- ment, with a net worth exceeding $7 million States may avoid liability for attorneys’’ for authorizing fee-shifting, I think, or more than 500 employees. This portion of fees under EAJA by proving that its position should be sufficiently stringent so that EAJA sunset, by the terms of the original ‘‘was substantially justified or that special the exception doesn’t become the rule, Act, on October 1, 1984. In 1985, EAJA was re- circumstances make an award unjust.’’ 5 but it should not be so stringent that it enacted, retroactive to October 1, 1984, and U.S.C. § 504(a)(1), 28 U.S.C. § 2412(d). The legis- becomes meaningless. made permanent. lative history of the original EAJA stated Whether that is the case in Octane P.L. 104–121, in addition to raising the cap that ‘‘Nile test of whether the Government Fitness v. Icon Health Fitness is the under EAJA to $125 per hour, added the fol- position is substantially justified is essen- tially one of reasonableness in law and fact.’’ question before the Supreme Court. In lowing provision to 28 U.S.C. § 2412(d), and a corresponding one to 5 U.S.C. § 504 applicable Twelve of the thirteen federal circuits subse- Octane Fitness, the Court will consider to adversary adjudications: quently interpreted ‘‘substantially justified’’ whether the two-part test of the Fed- ‘‘If, in a civil action brought by the United to mean reasonable. See, Pierce v. Under- eral Circuit that provides that a case States or a proceeding for judicial review of wood, 487 U.S. at 565–566. The U.S. Court of be ‘‘objectively baseless’’ and brought an adversary adjudication described in sec- Appeals for the District of Columbia was the in ‘‘subjective bad faith’’ to qualify a tion 504(a)(4) of title 5, the demand by the exception. It reasoned: prevailing party for fees is too high. United States [other than a recitation of the ‘‘The Senate Judiciary Committee consid- Although I think the Court will ad- maximum statutory penalty] is substan- ered and rejected an amendment to the bill that would have changed the pertinent lan- just the formula downward for identi- tially in excess of the judgment finally ob- tained by the United States and is unreason- guage from ‘‘substantially justified’’ to ‘‘rea- fying cases in which fee-shifting may able when compared with such judgment, sonably justified.’’ S. Rept. 96–253 [96th be appropriate, we are clearly not de- under the facts and circumstances of the Cong., 1st sess.] at 8. That refusal suggests ferring to the Court’s docket. I think case, the court shall award to the party the that the test should, in fact, be slightly more my amendment is the preferred and fees and other expenses related to defending stringent than ‘‘one of reasonableness.’’ necessary approach. against the excessive demand, unless the According to this view, the government’s And with that, I reserve the balance party has committed a willful violation of position may be reasonable, yet fail to be substantially justified, making it easier to of my time. law or otherwise acted in bad faith, or spe- cial circumstances make an award unjust. recover fees under the substantially justified III. THE EQUAL ACCESS TO JUSTICE ACT Fees and expenses awarded under this para- standard than under a reasonableness stand- Awards of attorneys’ fees against the graph shall be paid only as a consequence of ard. The 1985 amendments to EAJA did not United States were barred at common law appropriations provided in advance.’’ alter the text of the substantially justified not only because of the American rule, but This provision thus authorizes fee awards language, but an accompanying committee also because of the doctrine of sovereign im- in favor of losing parties and in that respect report expressed support for the D.C. Cir- munity, under which the United States may is unique in the law of attorneys’ fees. cuit’s interpretation: not be sued, nor its funds expended, without In Pierce v. Underwood, 487 U.S. 552 (1988), ‘‘Several courts have held correctly that its consent. ‘‘Congress alone has the power the Supreme Court decided three issues con- ‘‘substantial justification’’ means more than to waive or qualify that immunity,’’ and it cerning EAJA: (1) the applicable standard of merely reasonable. Because in 1980 Congress did so, with respect to awards of attorneys’ appellate review, (2) the meaning of ‘‘sub- rejected a standard of ‘‘reasonably justified’’ fees, with the Equal Access to Justice Act stantially justified,’’ and (3) the ‘‘special fac- in favor of ‘‘substantially justified,’’ the test (EAJA) in 1980. Prior to enactment of EAJA, tors’’ that allow a court to award more than must be more than just reasonableness.’’ the common law exceptions to the American $75 per hour. The Supreme Court in Pierce v. Underwood rule were inapplicable against the United (1) Standard of Review. Pierce v. Under- held that substantially justified means rea- States. Even statutory exceptions to the wood addressed the standard that a federal sonable. The Court found that a ‘‘more than American rule were inapplicable against the court of appeals applies in reviewing a deci- mere reasonableness’’ test would be ‘‘out of United States unless they specifically au- sion of a federal district court under EAJA. accord with prior usage’’ and thorized fee awards against the United Either party may appeal a district court’s ‘‘unadministerable.’’ ‘‘Between the test of States. decision under EAJA, and, as the Supreme reasonableness,’’ the Court wrote, ‘‘and a EAJA allows awards of attorneys’ fees Court explained: test such as ‘clearly and convincingly justi- against the United States in two broad situa- ‘‘For purposes of standard of review, deci- fied’ . . . there is simply no accepted stop- tions. The first, codified at 28 U.S.C. § 2412(b), sions by judges are traditionally divided into ping-place, no ledge that can hold the anchor makes the United States liable for the pre- three categories, denominated questions of for steady and consistent judicial behavior.’’ vailing party’s attorneys’ fees to the same law (reviewable de novo), questions of fact 487 U.S. at 568. The Court found that the 1985 extent that any other party would be under (reviewable for clear error), and matters of committee report was not controlling be- the common law and statutory exceptions to discretion (reviewable for ‘‘abuse of discre- cause it was neither ‘‘(1) an authoritative in- the American rule, including the statutory tion’’).’’ terpretation of what the 1980 statute meant, exceptions that do not specifically authorize 487 U.S. at 558. or (2) an authoritative expression of what fee awards against the United States. This The Supreme Court found that EAJA did the 1985 Congress intended.’’ Id. at 566. provision, unlike the rest of EAJA, contains not provide a clear prescription as to the ap- (3) Exceeding $75 (now $125) per hour. EAJA no limitations on the assets or number of propriate standard of review (unlike, for ex- provides that fees ‘‘shall be based upon pre- employees of parties eligible to recover fees, ample, 42 U.S.C. § 1988(b), which provides that vailing market rates for the kind and quality and no maximum hourly rate for fee awards. ‘‘the court, in its discretion, may allow the of the services furnished,’’ but ‘‘shall not be The second broad situation in which EAJA prevailing party . . . a reasonable attorney’s awarded in excess of $75 [$125 for cases com- authorizes fee awards against the United fee’’). The Court, therefore, for a variety of menced on or after March 29, 1996] per hour States is codified at 5 U.S.C. § 504 and 28 reasons, held that the ‘‘abuse of discretion’’ unless the court determines that an increase U.S.C. § 2412(d). These sections provide that, standard was most appropriate for appeals of in the cost of living or a special factor, such in specified agency adjudications and in all EAJA court decisions. as the limited availability of qualified attor- civil actions (except tort actions and tax Awards of attorneys’ fees under EAJA at neys for the proceedings involved, justifies a cases) brought by or against the United the agency level may be appealed to a court higher fee.’’ 28 U.S.C. § 2412(d)(2)(A)(ii). (The States, the United States shall be liable for only by the prevailing party, not by the same cap applies in agency proceedings; see, the attorneys’ fees of prevailing parties, un- United States. The statute, at 5 U.S.C. 5 U.S.C. § 504(b)(1)(A)). The Court in Pierce v. less it proves that its position was substan- § 504(c)(2), provides: Underwood held: tially justified or that special circumstances ‘‘The court’s determination on any appeal ‘‘If ‘‘the limited availability of qualified make an award unjust. heard under this paragraph shall be based attorneys for the proceedings involved’’ This second portion of EAJA contains two solely on the factual record made before the meant merely that lawyers skilled and expe- limitations on fee awards that are not found agency. The court may modify the deter- rienced enough to try the case are in short

VerDate Mar 15 2010 02:32 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00028 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.022 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7537 supply, it would effectively eliminate the $75 States, after consultation with the Chief tect their IP and have access to the cap—since the ‘‘prevailing market rates for Counsel for Advocacy of the Small Business courts for their legitimate claims. the kind and quality of the services fur- Administration, shall report annually to the Many folks have had concerns. I nished’’ are obviously determined by the rel- Congress on the amount of fees and other ex- think it is important that we continue ative supply and quality of services . . .. We penses awarded during the preceding fiscal think it refers to attorneys having some dis- year pursuant to this section.’’ 5 U.S.C. to work together to address these tinctive knowledge or specialized skill need- § 504(e). This provision remains on the books, issues. ful for the litigation in question—as opposed but it has no effect because the Administra- During Judiciary Committee consideration to an extraordinary level of the general tive Conference of the United States has not we heard concerns about this issue from di- lawyerly knowledge and ability useful in all been functioning since 1996. verse stakeholders who rely on a strong pat- litigation. Examples of the former would be With respect to court-awarded fees, the ent system, from the National Venture Capital an identifiable practice specialty such as EAJA formerly provided, ‘‘The Attorney Association to the American Association for patent law, or knowledge of foreign law or General shall report annually to the Con- Justice. language. gress on the amount of fees and other ex- 487 U.S. at 571–572. penses awarded during the preceding fiscal I support the underlying bill, but I also be- As for other ‘‘special factors,’’ the Court year pursuant to this subsection.’’ 28 U.S.C. lieve that we can continue to work towards a wrote: § 2412(d)(5). This provision was repealed by more balanced change to the current fee shift- ‘‘For the same reason of the need to pre- P.L. 104–66, 1091(b)(1995). ing standard as the bill advances in the legis- serve the intended effectiveness of the $75 Mr. GOODLATTE. Madam Chair, I lative process. cap, we think the other ‘‘special factors’’ en- rise in opposition to the amendment. For this reason, I support the Ranking Mem- visioned by the exception must be such as ber’s amendment and look forward to con- are not of broad and general application. We The CHAIR. The gentleman from Vir- need not specify what they might be. . . .’’ ginia is recognized for 5 minutes. tinuing to work with my colleagues to improve Id. at 573. Mr. GOODLATTE. Madam Chairman, the bill. The Court, however, specified some items this amendment includes language that Mr. GOODLATTE. Madam Chairman, which are not special factors for purposes of we believe is already implicit in the In- I yield such time as she may consume exceeding the $75 per hour cap: ‘‘the novelty novation Act’s fee-shifting provision to the gentlewoman from California and difficulty of issues,’’ ‘‘the undesirability section 3. (Ms. LOFGREN). of the case,’’ ‘‘the work and ability of coun- The gentleman’s amendment adds Ms. LOFGREN. I thank the gen- sel,’’ ‘‘the results obtained,’’ ‘‘customary language that allows a judge to reduce tleman for yielding. fees and awards in other cases,’’ and ‘‘the Madam Chair, I am afraid I must op- contingent nature of the fee.’’ All these ‘‘are an award in certain circumstances. factors applicable to a broad spectrum of This amendment is redundant with the pose my colleague’s amendment. I be- litigation; they are little more than routine provisions in the bill and does not ap- lieve that the amendment would basi- reasons why market rates are what they pear to add anything new but, rather, cally gut core elements of the Innova- are.’’ Id. adds extraneous language that simply tion Act protections for small business In Commissioner, Immigration and Natu- adds clutter to the section. and leave small businesses exposed. ralization Service v. Jean, 496 U.S. 154 (1990), The Judiciary Committee considered We have discussed the fee-shifting the Supreme Court held that, under EAJA, a issue, so I want to focus on two other prevailing party may recover attorneys’ fees and rejected this amendment during its for services rendered in seeking a fee award markup of the bill. The fee-shifting issues: the discovery cost-shifting and without regard to whether the position of language in the bill is a carefully craft- the heightened pleading provisions the United States was substantially justi- ed compromise that we negotiated on a that I think are very important in the fied. If the prevailing party is entitled to bipartisan basis in the committee. Mr. bill. fees in the main action, then he is automati- JEFFRIES offered an amendment at the First, on pleading requirements, pat- cally entitled to fees for the time spent seek- committee that was adopted and in- ent assertion entities often sue and do ing fees. To hold otherwise could ‘‘spawn a cluded in the bill that modified the fee- not reveal what patent the defendant is ‘Kafkaesque judicial nightmare’ of infinite shifting language. With that amend- allegedly infringing or how, and that is litigation for the last round of litigation why the Innovation Act requires great- over fees.’’ Id. at 163. ment, all but five committee Demo- In Scarborough v. Principi, 541 U.S. 401 crats joined with all voting Repub- er particularity in pleading. The bill’s (2004), the Supreme Court addressed EAJA’s licans of the committee and reported requirement includes information that requirement that fee applications be filed the bill by a vote of 33–5. This amend- the plaintiffs should already have on ‘‘within thirty days of final judgment in the ment upsets that balance and should be hand, but the bill specifically provides action,’’ and ‘‘allege that the position of the rejected. an exception for information that is United States was not substantially justi- Mr. WATT. Will the gentleman yield? not reasonably accessible to the plain- fied.’’ 28 U.S.C. § 2412(d)(1)(B). The Court held tiff. The amendment would eliminate that, when a fee application is filed within 30 Mr. GOODLATTE. I yield to the gen- days, but fails to allege that the position of tleman from North Carolina. that provision. the United States was not substantially jus- Mr. WATT. I am wondering, if you Relative to discovery, one of the tified, the application may be amended to think this is redundant and extraneous ways that patent entities bully defend- remedy the oversight, even after the 30 days rather than contrary to the intent, ants is by driving up the cost of litiga- have elapsed. why wouldn’t we just accept the tion through broad discovery requests. In Richlin Security Service Co. v. Chertoff, amendment and keep going? Section 3 of the bill directs the court 128 S. Ct. 2007, 2019 (2008), the Supreme Court Mr. GOODLATTE. I believe it is to limit discovery until claim con- held that, under EAJA, ‘‘a prevailing party struction occurs in the routine . . . may recover its paralegal fees from the both, and it causes confusion in the Government at prevailing market rates.’’ legislation, and, therefore, I oppose the Markman hearing. That gives defend- The lower court, which the Supreme Court amendment. ants a break from costly discovery re- reversed, had held that the prevailing party I reserve the balance of my time. quests until it is more clear what the could recover fees for paralegal services only Mr. WATT. Madam Chair, I yield claims against them are. at their cost to the party’s attorney. such time as she may consume to the Now the bill also says the court SOURCE OF FEES PAID BY THE GOVERNMENT gentlelady from Washington State (Ms. shall—that is mandatory—shall require Both agency-awarded and court-awarded DELBENE). discovery beyond that related to claim fees are ‘‘paid by the agency over which the Ms. DELBENE. I rise in support of construction if it is necessary to en- party prevails from any funds made avail- this amendment. sure a timely resolution of the action. able to the agency by appropriation or other- Madam Chair, as an entrepreneur and The bill provides the court with discre- wise.’’ 5 U.S.C. § 504(d), 28 U.S.C. § 2412(d)(4). businesswoman, I know how hard it is tion to permit discovery to prevent Fee awards under 28 U.S.C. 2412(b) are pre- to get a business off the ground. We sumably paid from the source that pays dam- manifest injustice. ages awarded under the statute that author- know that small businesses are on the I believe that the bill before us is a izes fee awards. receiving end of frivolous litigation, very important element of protecting FORMERLY REQUIRED ANNUAL REPORTS TO and it is critical that we work to pass against abusive litigation, and the CONGRESS legislation to disincentivize such abu- amendment would do damage to it. With respect to agency-awarded fees, the sive behavior while also ensuring that And finally, I would just associate EAJA provides, ‘‘The Chairman of the Ad- we do not adversely affect the small in- myself with the chairman’s comments ministrative Conference of the United ventors and start-ups who need to pro- on fee-shifting.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00029 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.027 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7538 CONGRESSIONAL RECORD — HOUSE December 5, 2013 Mr. GOODLATTE. Madam Chairman, Mr. ROHRABACHER. Madam Chair, And, again, if the public is having I reiterate my opposition to the let us remember, as we go through this trouble understanding that, let’s figure amendment and yield back the balance debate, that it is the contention of out how does taking away the constitu- of my time. those who oppose this legislation that tional right of the small inventor to The CHAIR. The question is on the this legislation has a more dramatic having a judicial review—a constitu- amendment offered by the gentleman negative impact on the independent in- tional right that he has had since from North Carolina (Mr. WATT). ventor who is seeking justice from the 1830—how does taking that away help The question was taken; and the multinational corporations who in- in some way get controls under con- Chair announced that the noes ap- fringe a great deal upon these little trol? How does that do that? peared to have it. guys, and we are cutting off the little This is a front. It is just like those Mr. WATT. Madam Chair, I demand a guys’ ability to protect their patent by businessmen that had that meeting recorded vote. making it much more difficult, number that I described knew exactly what The CHAIR. Pursuant to clause 6 of one, to have a patent. they were doing. They were creating a rule XVIII, further proceedings on the demon over here, the troll, in order to b 1100 amendment offered by the gentleman what? In order to gain changes in the from North Carolina will be postponed. How does that stop the trolls, by system that will help these mega-cor- AMENDMENT NO. 3 OFFERED BY MR. POLIS making it more difficult to have a pat- porations defeat the small inventor The CHAIR. It is now in order to con- ent? And it makes it more difficult to who is trying to sue them on infringe- sider amendment No. 3 printed in part defend a patent, as we are seeing in ment. That is what is behind this. A of House Report 113–283. this amendment. And how does that For 25 years, I have been sitting here Mr. POLIS. Madam Chair, I have an necessarily deal with the trolls? in Congress fighting the battle with amendment at the desk. So we now have put a huge burden these same multinational corporations. The CHAIR. The Clerk will designate that small, independent inventors This is just the most recent step to- the amendment. don’t have now when they are fighting wards this power grab in destroying The text of the amendment is as fol- Goliath. They are fighting these big the strong patent system that America lows: corporations that routinely infringe has had—the patent system that pro- Page 14, line 20, insert after ‘‘accused,’’ the and steal from the little guy; and as I tects the little guy—as compared to following: ‘‘identifies the ultimate parent have said openly in the beginning, this the patent systems in Europe and entity of the claimant,’’. is the strategy set down by these big Japan, where the little guys are smoth- The CHAIR. Pursuant to House Reso- corporate interests to make trolls the ered and routinely have their patents lution 429, the gentleman from Colo- issue and not patent rights the issue. stolen from them. rado (Mr. POLIS) and a Member opposed In this particular amendment, what Let’s be real here. Okay, we can talk each will control 5 minutes. we have added is a further burden on patent troll, patent troll, patent troll; The Chair recognizes the gentleman the part of the small inventor to pro- and then they put in place changes like from Colorado. tect his patent in the name of getting this that dramatically damage small Mr. POLIS. Madam Chair, I am the trolls. We have notification re- inventors and their rights to protect thankful for Chairman GOODLATTE and quired and confirmation of exactly who themselves against infringement. his staff and the committee for their owns it. I oppose the amendment, and I yield work on this bill and increasing de- What we have got here now in the back the balance of my time. mand letter transparency in both the current law, yes, small inventors can Mr. POLIS. Madam Chair, I yield 30 committee mark and working with us seek investors, can seek people to join seconds to the gentleman from Vir- on the floor to incorporate a bipartisan them to help them take on the big ginia (Mr. GOODLATTE), the chair of the amendment that we were able to work guys. Now, all of those people who are committee. on with Representatives CONNOLLY, trying to help the little guy are going Mr. GOODLATTE. I thank the gen- CHAFFETZ, and MARINO that builds to have to be public knowledge. That tleman for his amendment, and I sup- upon the language in the bill. would have destroyed so many of the port it. Very simply, our amendment would small inventors who have done so Contrary to what the previous speak- ensure that trolls can no longer hide many great things for America because er said, this amendment does exactly behind shell companies to conceal their they know these corporate people who that—it helps to determine more fairly true identity from demand letter re- are infringing on the little guy, they and more quickly whether or not there cipients. Our amendment is a step in seek vengeance on people who oppose is a valid patent claim. It requires par- the right direction in providing busi- their power grab on these little guys. ties sending demand letters who wish nesses and entrepreneurs the tools to We don’t need that. We need to know to pursue treble damages to disclose better assess the validity of demand whether or not it is a valid patent their ultimate parent entity. letters. claim. That is what we need to know— This amendment improves the provi- I do have a comprehensive bill, along does someone have a valid patent sion offered by Mr. CHAFFETZ and Mr. with Representatives MARINO and claim. And if they do, let’s not demon- DEUTCH in committee, and I support its DEUTCH, that moves further in that di- ize these people who are helping the inclusion in the bill. rection that we introduced 2 weeks small inventor. Let’s find out if this is Mr. POLIS. Madam Chair, I would ago, and our bill would clarify that the a legitimate claim or not. point out that very little of the argu- FTC has the authority to go after pat- Unfortunately, this legislation and ments made by the gentleman from ent trolls. this amendment have nothing to do California were related to this par- As we move to enhance the value of with whether or not we are deter- ticular amendment. Much of that was demand letter transparency, I am mining a legitimate claim has been stuff that may have been loosely re- pleased that Energy and Commerce made or not made in a particular case, lated to the overall bill. Subcommittee Chairman TERRY, a few especially what we are talking about I yield 1 minute to the gentleman minutes ago, expressed the intent of here. We do need to make sure these from Virginia (Mr. CONNOLLY), the co- the committee to further examine this suits are not being filed. But what does sponsor of the amendment. issue. And this amendment is an im- that have to do with making sure that Mr. CONNOLLY. I thank my col- portant step in the right direction. every small inventor in this country league, Mr. POLIS, for his leadership. I urge my colleagues to support the has to disclose all of the people who Madam Chair, I join with the distin- Polis-Connolly-Chaffetz-Marino amend- have invested in this company, et guished chairman in support of this ment and reserve the balance of my cetera? amendment. I am proud to be one of time. Again, we have an example where the the coauthors. Mr. ROHRABACHER. Madam Chair, I little guy is going to be emasculated by I must say, contrary to what our dear rise in opposition to the amendment. this law and what is being proposed. friend from California just said, a lot of The CHAIR. The gentleman from And the big guys: of course, this small investors have in fact endorsed California is recognized for 5 minutes. doesn’t hurt them at all. this bill because it protects innovators

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00030 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.024 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7539 in the garage from being killed off by tify the ultimate parent entity in the The Chair recognizes the gentleman large litigation they cannot afford. demand letters they send to their tar- from Kentucky. And it is precisely the opposite of what gets. Mr. MASSIE. Madam Chair, section 5 was being asserted by our friend from It is about openness. It is about of this bill shares a common defect California. That is why Application De- transparency. You should be able to with the rest of this bill. Although velopers Alliance, Engine, EFF, and face your accuser in the courts; and well-intentioned, it will have bad ef- others have in fact endorsed the bill. that is all that this does is make sure fects on our patent law. In fact, it will I want to commend my friend, Mr. that we strengthen the openness and affect legitimate patent-holders as POLIS, for his leadership on this amend- transparency of the system. We think much or worse than it would patent ment, and I am glad to join my col- that will improve the system. We do it trolls. leagues, Messrs. CHAFFETZ and MARINO, in a very bipartisan way. That is going Section 5 of H.R. 3309, the Innovation in offering it. to help everybody in this process, espe- Act, is entitled, ‘‘Customer-Suit Ex- Businesses large and small are being cially the little guy. emption.’’ This section inserts a new inundated with demand letters that es- Mr. POLIS. I am happy to yield 1 provision into the patent code: section sentially amount to an extortion for minute to the gentleman from Penn- 296, Stay of Action Against the Cus- money based on vague or even illegit- sylvania (Mr. MARINO), an original tomer. imate claims that a patent has been in- sponsor of the underlying bill that I in- The new section 296 would require a fringed upon. Because the cost of liti- troduced with him 2 weeks ago and a court to grant a motion to stay a pat- gation often runs into the millions of cosponsor of this amendment. ent infringement suit against certain dollars, many businesses are forced to Mr. MARINO. Thank you, Mr. POLIS. ‘‘covered customers.’’ While well-inten- settle, which is sapping them of money Madam Chair, I rise in support of the tioned, this section of the bill was not that could otherwise be spent on inno- Polis-Chaffetz-Marino-Connolly amend- drafted in a careful and narrowly tai- vation and hiring. ment. lored way so as to achieve its purpose, We know last year, for the first time Trolls assert a claim in a letter with which is to protect innocent cus- ever, Apple and Google spent more on little or no specificity, and often it tomers, i.e., small retail customers in- litigation than they did on R&D. isn’t clear who owns the patent being volved in patent lawsuits. Instead, the broad language of sec- I urge the adoption of the amend- asserted or how the patent was even in- tion 296 would likely insert more con- ment. fringed. It is time the entity sending fusion into an already complicated pat- For example, Apple and Google recently out these mass mailers does their due ent infringement suit process and reached a dubious milestone as both spent diligence, just as we expect in just cause harmful unintended con- more on patent lawsuits and purchases than about every other area of the law. sequences. on R&D. The cost of payouts from frivolous This amendment requires the entity sending the letter to include the person For example, section 5’s weakening suits brought by patent trolls drained $29 bil- of the right to sue downstream from lion from the economy last year. who holds the rights to the patent in order to later raise a claim that the op- the original manufacturer opens a new Our amendment would require claimants al- loophole for corporations to exploit—a leging patent infringements to disclose their posing party received an adequate let- ter putting them on notice of their in- huge loophole. It could allow a large parent entities, which will prevent patent trolls computer corporation, for instance, to from hiding behind shell corporations. This will fringement. Patent trolls have been playing a hide behind third-party chip manufac- help weed out nuisance claims and preserve shell game and hiding who is actually turers or third-party developers and the rights of legitimate patent holders. thus continue to ship infringing prod- I urge my colleagues to support this com- holding the rights to the patent and often who is supplying the money to ucts. The large computer corporation mon-sense, bipartisan amendment. could thus construct a shadow shield There is a list of industry supporters below. the litigation. I fully support this amendment. This against injunctions. The injunction PhRMA will not oppose and AAJ is neutral. amendment will shine some much- tool is one of the most effective weap- GOODLATTE has agreed to go on voice. needed light on this dark practice. ons in an individual, independent in- Supporting organizations: App Developers Mr. POLIS. Madam Chair, this ventor’s arsenal. We should not protect Alliance, American Hotel and Lodging Asso- amendment is important. those in the supply chain who stand to ciation, American Association of Advertising First, I like the way my colleague benefit the most from stealing patents. Agencies, American Bankers Association, As- Mr. CHAFFETZ put it: the right to face Patent experts oppose section 5 of sociation of National Advertisers, Credit Union your accuser in court is an important H.R. 3309. My amendment would strike National Association, Direct Marketers Asso- part of our justice system. There is a section 5 of H.R. 3309. ciation, DISH Network, Electronic Frontier long way to go with regard to demand Let me tell you what David Kappos, Foundation, Food Marketing Institute, Inde- letter transparency, but this amend- former Under Secretary of Commerce pendent Community Bankers of America, ment is the first step. and Director of the United States Pat- International Franchise Association, Mobile I encourage my colleagues to support ent and Trademark Office, said about Marketing Association, National Association of it, and I yield back the balance of my this bill, particularly section 5, which Convenience Stores, National Council of time. my amendment seeks to strike: Chain Restaurants, National Grocers Associa- The CHAIR. The question is on the I am most concerned about the covered tion, National Restaurant Association, and Na- amendment offered by the gentleman customer stay provision which, as written, is tional Retail Federation. from Colorado (Mr. POLIS). significantly overbroad. While we all want to Mr. POLIS. I am happy to yield 1 The amendment was agreed to. help relieve innocent retailers and coffee shops from being taken hostage in patent in- minute to the gentleman from Utah AMENDMENT NO. 4 OFFERED BY MR. MASSIE fringement suits, we should not open up the (Mr. CHAFFETZ), a cosponsor of the The CHAIR. It is now in order to con- patent system to abuse by others who will amendment. sider amendment No. 4 printed in part take advantage of this provision to shift li- Mr. CHAFFETZ. Madam Chair, we do A of House Report 113–283. ability up or down the product creation and this in a very bipartisan way. I appre- Mr. MASSIE. Madam Chair, I have an distribution chain to thwart legitimate ciate Mr. POLIS; Mr. CONNOLLY; my col- amendment at the desk. innovators from enforcing their patent league, Mr. MARINO; and Chairman The CHAIR. The Clerk will designate rights. GOODLATTE. the amendment. We should listen to the experts. This This is simple. If you want to help The text of the amendment is as fol- was the former Under Secretary of the little guy, if you want to help pro- lows: Commerce and Director of the United tect the integrity of the system, you Strike section 5, redesignate subsequent States Patent Office. He is telling us should be for transparency in the legal sections, and amend the table of contents ac- that this part of the bill is drafted system. cordingly. overly broad and has unintended con- This amendment simply builds upon The CHAIR. Pursuant to House Reso- sequences. something that is already in the bill by lution 429, the gentleman from Ken- I reserve the balance of my time. mandating that claimants seeking to tucky (Mr. MASSIE) and a Member op- Mr. GOODLATTE. Madam Chair, I bring willful infringement claims iden- posed each will control 5 minutes. rise in opposition to this amendment.

VerDate Mar 15 2010 02:40 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00031 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.027 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7540 CONGRESSIONAL RECORD — HOUSE December 5, 2013 The CHAIR. The gentleman from Vir- Despite the Federal circuit precedent should be suing the people who actu- ginia is recognized for 5 minutes. of recognizing the customer suit excep- ally made the product, not the retailer Mr. GOODLATTE. Madam Chairman, tion, district courts continue to deny who sold it or the customer who uses I yield myself such time as I may con- stays of customer suits in a wide array it. sume. of circumstances in which a stay would How on Earth is the owner of a coffee This amendment strikes a key provi- be appropriate. The stay under section shop supposed to know how a router sion of the bill for retailers, res- 5 is voluntary. No stay would be en- works? I don’t know how a router taurants, and grocery stores, among tered unless the customer and manu- works. Why would we expect someone others. This provision is the product of facturer agreed that the manufacturer who didn’t build it to defend a claim years of discussion with stakeholders most appropriately bore the burden of that it infringes? and the Patent Office. defending against the infringement For this reason, Max Bibo’s deli in This section codifies and provides for litigation. Wethersfield, Connecticut, supports the enforcement of the common law This is a good provision. It is a key this legislation. I am not sure any pat- doctrine that infringement suits provision. It is an essential part of the ent bill before the Congress has ever against a customer, retailer, or user of bill to protect customers and retailers won the support of a delicatessen, but an infringing product should be stayed against abusive suits over technology this one does. Chairman GOODLATTE’s in favor of an action against the manu- that they did not design or develop. It bill addresses it, so I support the bill, facturer of the allegedly infringing is for these and many other reasons and I oppose the amendment. product. that I strongly oppose the amendment Mr. MASSIE. Mr. Chairman, section Customers and retailers typically are offered by the gentleman from Ken- 5 remains overly broad. ill-suited to defend against an infringe- tucky to strike section 5. The former Director of the United ment suit. They often are not familiar I would also point out that former States Patent and Trademark Office with the inner workings of the product Director Kappos, speaking pre-man- told me as early as yesterday that we and usually have no reason to know ager’s amendment version of the bill, are playing with fire with section 5. whether or not the product infringes a indicated a concern that has been ad- That is why I urge my colleagues to op- valid patent. Suits against such parties dressed in the manager’s amendment, pose section 5 and to support my are inherently coercive and have be- and we made important improvements amendment. come a tactic employed by patent to this section in coordination with Only in Washington, D.C., would you trolls. Senators LEAHY and LEE. I think that see the kind of hubris that is displayed here. We portend that we are going to b 1115 this provision in the bill is very good and that this amendment is not well- protect the innovators—the people who As an infamous recent example, one founded, and I oppose it. invent in this country—yet we are ig- troll has begun suing cafes, res- I reserve the balance of my time. noring their pleas to protect their taurants, and shops that provide wire- Mr. MASSIE. Mr. Chairman, I yield 1 rights. In this very bill, we will take less Internet access to their customers minute to the gentleman from Michi- away their rights while maintaining via routers that they bought off the gan (Mr. CONYERS). that we are helping them. shelf. These small shops have no idea Mr. CONYERS. I thank you. If you must vote for this bill, please how the routers work or why they in- I want to applaud the gentleman vote for this amendment. This amend- fringe, and they have often paid as lit- from Kentucky (Mr. MASSIE). This is ment will improve the bill consider- tle as $40 for them. Now they are being exactly what will improve this measure ably. sued for using allegedly infringing considerably. I yield back the balance of my time. products and are being asked to pay Mr. Chair, the language currently in Mr. GOODLATTE. Mr. Chairman, thousands of dollars. section 5 will not likely curb abusive this amendment will considerably The troll could have sued the manu- patent litigation. It needs substantial harm this bill and the hundreds of or- facturer but chose not to because the revisions to be effective and to remove ganizations and businesses that have manufacturer would have vigorously loopholes which allow manufacturers supported this bill because they know defended against the suit. Coffee shops and others to avoid litigation. Striking how important it is that the common and other small businesses, however, section 5 of the bill will give patent law customer stay be applied fairly in are more likely to settle for a few stakeholders, retailers, and customers jurisdictions across the country. thousand dollars rather than the hun- more time to improve the customer Concerns have been voiced that an dreds of thousands it would cost to stay provision. injunction could not be obtained be- fight an infringement suit over tech- I support the gentleman’s amend- cause of this provision against a party nology that the coffee shop did not de- ment. that is the supplier of the infringing sign or develop, and we see the same Mr. GOODLATTE. Mr. Chairman, product. However, the bill expressly re- situation repeated over and over again. may I ask how much time is remaining quires that all parties, both customers Another troll has sued small busi- on both sides. and manufacturers, agree to be bound nesses, charities, and others just be- The Acting CHAIR (Mr. YODER). The by any issues decided in the suit cause they use scanners and photo- gentleman from Virginia has 11⁄2 min- against the manufacturer. In other copiers. Again, the troll chose not to utes remaining, and the gentleman words, if the patent is found valid and sue the manufacturer because the man- from Kentucky has 11⁄4 minutes re- infringed, an injunction could also be ufacturer understands the technology maining. obtained against any supplier of the and would be able to defend against the The gentleman from Virginia has the product because of this requirement. suit. These types of lawsuits are a lit- right to close. I believe that this amendment should tle more than a shakedown of small, Mr. GOODLATTE. Mr. Chairman, at be strongly opposed. medium, and large businesses that sim- this time, it is my pleasure to yield 1 I yield back the balance of my time. ply bought technology and are not the minute to the gentleman from North The Acting CHAIR. The question is true sources of any infringement. Carolina (Mr. COBLE), the chairman of on the amendment offered by the gen- This provision is designed to stay ac- the Courts, Intellectual Property, and tleman from Kentucky (Mr. MASSIE). tions against customers when the man- the Internet Subcommittee. The question was taken; and the Act- ufacturer, who is the true source of any Mr. COBLE. I thank the chairman for ing Chair announced that the noes ap- infringement, is a party to a co-pend- yielding. peared to have it. ing action. The provision effectively Mr. Chairman, I support the Good- Mr. MASSIE. Mr. Chair, I demand a pushes infringement claims up the sup- latte bill, and I oppose the gentleman recorded vote. ply chain to the true source of infringe- from Kentucky’s amendment. The Acting CHAIR. Pursuant to ment. The provision thereby prevents This is a commonsense provision that clause 6 of rule XVIII, further pro- harassment and the abuse of customers cures one of the patent troll abuses. ceedings on the amendment offered by when it is unnecessary for the plaintiff These suits against customers target the gentleman from Kentucky will be to sue customers. the wrong people. Patent owners postponed.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00032 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.030 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7541 AMENDMENT NO. 5 OFFERED BY MS. JACKSON As the bill is currently drafted, the became Smith-Leahy, or the American Invents LEE provision applies to all entities. Mom- Act. That it took so long is somewhat per- The Acting CHAIR. It is now in order and-pop shops at the end of the chain plexing but even more interesting is that the to consider amendment No. 5 printed in are, in essence, undermined. The legs bill had a Republican House and a Democratic part A of House Report 113–283. have gone from underneath them. I Senate. Yet we came together in a collabo- Ms. JACKSON LEE. Mr. Chairman, I know that all of us are committed to rative fashion and made lemonade out of sixty have an amendment at the desk. innovation, and I ask that the Jackson years of lemons while in the midst of some of The Acting CHAIR. The Clerk will Lee amendment be accepted. the most jarring partisanship we have seen in designate the amendment. I reserve the balance of my time. this great body. The text of the amendment is as fol- Mr. Chairman, I wish to thank the Rules A number of the provisions in this bill may lows: Committee, particularly Chairman SESSIONS be well-intentioned, but they have undesirable Page 24, strike lines 7 through 10 and insert and Ranking Member SLAUGHTER, for making consequences for the patent system as a the following: ‘‘(1) COVERED CUSTOMER.—The term ‘cov- my amendment in order. whole. ered customer’ means a party that— Let me also express my appreciation to They have the potential to undermine the ‘‘(A) is accused of infringing a patent or Chairman GOODLATTE and Ranking Member enforceability of all patent rights, no matter patents in dispute based on a covered prod- CONYERS for their hard work on this legislation how valuable the patent, and thus potentially uct or process; and and for their shared commitment to ensuring incentivize infringement. ‘‘(B) is a small business concern as defined that the American patent system remains the When patent rights are weakened, the in- under section 3 of the Small Business Act (15 best in the world. centive for investing in innovation is dimin- U.S.C. 632) that has an annual revenue of My amendment modifies the bill to ensure ished. We must guard against that at all costs. $25,000,000 or less.’’. that small businesses are protected and by One such provision is the customer-suit ex- The Acting CHAIR. Pursuant to expanding the amendment from what was of- ception. Though well-intentioned, this provision House Resolution 429, the gentlewoman fered in the Judiciary Committee markup so is overbroad. Former USPTO Director David from Texas (Ms. JACKSON LEE) and a that businesses with revenue under $25 mil- Kappos said this himself when he testified be- Member opposed each will control 5 lion are included—my hope is that it will gar- fore us recently. minutes. ner more support. As currently drafted, the provision applies to The Chair recognizes the gentle- Under my amendment, the definition of a all entities in the chain of commerce of a woman from Texas. covered customer is modified to be one who good, not just the innocent ‘mom and pop’ Ms. JACKSON LEE. Mr. Chairman, I shops at the end of the chain. rise again to express my appreciation is accused of infringing a patent or patents on a covered product or process, and is a small In fact, this provision is drafted so that it to Chairman GOODLATTE and to Rank- business concern under Section 3 of the Small would protect the very companies that benefit ing Member CONYERS. Business Act that has revenue of $25 million the most from the sale of an infringing good. This is an unusual posture for us to And the provision would require a patent be in. Again, all of us are for innova- or less. I have modified this amendment from that holder to prove indirect infringement—which tion and love the name of the legisla- requires a higher level of proof—as well as di- tion, but are raising concerns that offered in the Judiciary Committee markup in order to accommodate more businesses who rect infringement. Taken together, these would be worked out or could be changes would result in significantly more liti- worked out with a slower process. feel they might benefit from the narrowed lan- guage while still maintaining the intended con- gation, not less. Again, I refer to the Constitution and My amendment modifies the Manager’s sequence of allowing for stays in proceedings. to the aging that went on with the con- Amendment to ensure that all of those small The expanded language might allow some stitutional leaders in Philadelphia who businesses that motivated this provision are businesses who are past the ‘‘mom and pop’’ meticulously designed how this great protected. government would work. I noted ear- growth phase but if this will provide medium- Please support this amendment to protect lier that they focused on innovation, sized businesses from going bankrupt, or los- innocent end users without jeopardizing the competition, and inventiveness. ing valuable revenues because of expensive patent system as a whole and all of the bene- My amendment builds on that of the patent litigation, it is a useful expansion. fits that it provides us. gentleman from Kentucky (Mr. It is well documented that our innovation And Mr. Chairman, I quote from the Fed- MASSIE), an inventor whom, I believe, ecosystem—founded on patents—drives eco- eralist Papers No. 18: It happened but too we should listen to. He has chosen to nomic growth and job creation in the United often, according to Plutarch, that the deputies strike the section dealing with small States. From the hustle and bustle of down- of the strongest cities awed and corrupted businesses or the covered customer town Houston, Silicon Valley, Chicago, New those of the weaker; and that judgment went issue, and mine narrowly focuses to York, and even here in Washington, D.C., in favor of the most powerful party. And that hone in on helping small businesses. Americans want to keep our cherished system is what is the underlying theme of this amend- My point here on the floor of the House as strong as possible. For the future of our ment: protecting the small business which is that we cannot ignore that this bill economy, we cannot risk jeopardizing it. might grow into the bigger business. Jeff skews the scales of justice against Section 5 is no doubt the most overbroad Bezos of Amazon.com drove a Ford truck to small investors. proposal in this legislation. In the only Judici- make some of his earlier deliveries—but now When my good friend from Virginia ary hearing none other than former Undersec- he could probably buy Ford. was explaining it, it was already too retary of Commerce and USPTO Director In the name of fairness to the little person— complicated. My bill is simple. It ex- David Kappos testified that the litigation stay the Davids in the land of the Goliaths, com- pands or provides the covered customer provisions of H.R. 3309 would immunize from mercially-speaking—and I ask my colleagues to small businesses making $25 million liability ALL parties and not just end users and to support the Jackson Lee Amendment. or less. So we are looking for the bal- retailers, provided they are located some- Mr. GOODLATTE. Mr. Chairman, I ance and the compromise that point- where in a product channel downstream of the rise in opposition to this amendment. edly goes toward small businesses. It first component part maker. This grant of in- The Acting CHAIR. The gentleman modifies that they are protected and fringement immunity would include large com- from Virginia is recognized for 5 min- that their litigation costs are down. mercial actors. such as manufacturers com- utes. Under my amendment, the definition bining procured components into value-added Mr. GOODLATTE. I yield myself of a ‘‘covered customer’’ is modified to completed devices, as well as those who as- such time as I may consume. be one who is accused of infringing a semble. Mr. Chairman, this amendment offers patent or patents on a covered product My amendment seeks to narrowly tailor the a reformulation of section 5 of the bill. or process, and is a small business con- language in the bill so that it harms fewer in- The provision, however, is the product cern under section 3 that has revenue ventors and legitimate patent licensing activity. of years of discussions with stake- of $25 million or less. We must act thoughtfully and with great holders and the Patent Office. This It is well-documented that our inno- caution as we pursue reforms to a system amendment unduly restricts the pro- vation ecosystem, founded on patents, which took sixty years to change—and then in tections offered by section 5 to cus- started with small businesses. This bill the batting of a Congressional eyelash—look tomers. skews the justice system away from to significantly modify once again. I was here The amendment has been presented them. Why would we want to do so? during the long road that led to the path that as protecting small business, but the

VerDate Mar 15 2010 02:40 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00033 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.032 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7542 CONGRESSIONAL RECORD — HOUSE December 5, 2013 underlying provision already applies to over $25 million in gross revenues size, and the manufacturer, regardless small businesses. What this amend- would not be protected. So why com- of the size, both agree, then the cus- ment does is deny protection to larger plicate the matter? tomer stay provision will apply; the grocery stores, charities, hospitals, This amendment that my distin- manufacturer can come in and defend universities, and restaurant chains guished colleague wants to put in is the case. It is eminently fair to every that are sued on account of technology not required because it is already ad- party involved to get at the core of that they have purchased from others dressed in the legislation that we have whether or not the patent is a good and did not design or develop. been going over for months and months patent and a valid patent. And who This provision would prevent many and months. Therefore, I do not sup- knows best? The manufacturer. customers from benefiting from the port her amendment, and I support the So this provision in the bill is very important protections of section 5. chairman’s bill. important and this amendment is Customer suits against a party that Ms. JACKSON LEE. Mr. Chairman, I harmful to the interest of small busi- neither manufactures nor develops the think quite the contrary to my good nesses, and I urge my colleagues to op- product, accused of infringement, are friend from Pennsylvania, my legisla- pose it. frequent tactics used by trolls because tion responds to the very individuals I reserve the balance of my time. they know that most customers are not whom we are proclaiming we are inter- Ms. JACKSON LEE. Mr. Chairman, sophisticated in patent laws and, thus, ested in—the small inventors and busi- the Club for Growth is opposed to this are more vulnerable to extortion. This nesses. legislation. What this legislation does my amendment corrects. That is why I amendment would eliminate a tool the b 1130 bill provides to customers to protect want to ensure that we slow this down themselves from truly abusive patent I would offer to say that the opposi- and make sure that the people who are litigation. tion to this whole scheme of this bill impacted positively are small inven- It is for these and many other rea- comes from the Association of Amer- tors and small businesses. This gives a gift to big guys, con- sons that I strongly oppose the amend- ican Universities, the Institute of Elec- glomerates, that can already hammer ment. trical and Electronics Engineers, and you down if you challenge their use of I reserve the balance of my time. the Innovation Alliance. These are your invention. What this says is the Ms. JACKSON LEE. Mr. Chair, what groups that understand there is a prob- small guys get protected. That means is the remaining time? lem. These are typically smaller innovation and inventiveness is pro- The Acting CHAIR. The gentlewoman groups. tected. My amendment is a right way from Texas has 21⁄2 minutes remaining, I would suggest that in the Fed- eralist Papers No. 18 it says that we to go. It is a good solid balance. and the gentleman from Virginia has I ask my colleagues to support the 3 shall not tip the scales of justice to the 3 ⁄4 minutes remaining. Jackson Lee amendment, and I yield Ms. JACKSON LEE. Mr. Chair, I big and the wealthy, but protect the back the balance of my time. yield 1 minute to the distinguished weak. This particular amendment pro- vides for protecting those making $25 I have modified this amendment from that gentleman from Michigan (Mr. CON- offered in the Judiciary Committee markup in YERS). million, not having them in the cross- hairs of the pleading scheme that is in order to accommodate more businesses who Mr. CONYERS. I thank the gentle- feel they might benefit from the narrowed lan- this bill, in the crosshairs of loser pays lady from Texas for her amendment. It guage while still maintaining the intended con- that is in this bill. is an important one because it limits sequence of allowing for stays in proceedings. I would ask my colleagues to recog- the use of customer stay provisions to The expanded language might allow some nize that David Kappas has not re- smaller businesses. This is very, very businesses who are past the ‘‘mom and pop’’ trenched from his position that this li- important. growth phase but if this will provide medium- ability posture is too dangerous. As my Mr. Chair, this amendment would im- sized businesses from going bankrupt, or los- good friend Mr. MASSIE indicated, he is prove the customer stay provision by ing valuable revenues because of expensive striking the whole section. I am find- limiting the use of the provision to patent litigation, it is a useful expansion. smaller businesses, those who most ing a balance. It is well documented that our innovation likely did not know they were infring- With that, I reserve the balance of ecosystem—founded on patents—drives eco- ing when they bought and used a mod- my time. nomic growth and job creation in the United ern scanner or a fax machine. They are Mr. GOODLATTE. Mr. Chairman, States. From the hustle and bustle of down- most likely local mom-and-pop shops. let’s use a little common sense here. town Houston, Silicon Valley, Chicago, New So, in preventing larger businesses We have a provision in the common law York, and even here in Washington, DC, from using the customer stay provision called ‘‘customer stay,’’ which says Americans want to keep our cherished system to avoid litigation, this amendment that a customer can ask to join the as strong as possible. For the future of our will also help protect the ability of in- manufacturer of the product that it is economy, we cannot risk jeopardizing it. dividual inventors and entrepreneurs alleged is infringing because that man- Section 5 is no doubt the most overbroad to enforce their patent rights. ufacturer knows a lot more about how proposal in this legislation. In the only Judici- Please support the Jackson Lee the product was manufactured, what li- ary hearing none other than former Undersec- amendment. censes and patents were used to do retary of Commerce and USPTO Director Mr. GOODLATTE. Mr. Chairman, at that, and is best able to defend a claim David Cappos testified that the litigation stay this time, I yield 11⁄2 minutes to the by a patent troll or by a legitimate in- provisions of H.R. 3309 would immunize from gentleman from Pennsylvania (Mr. ventor that a claim is valid or not liability ALL parties—and not just end users MARINO). valid. and retailers, provided they are located some- Mr. MARINO. I thank the chairman. What the gentlewoman from Texas where in a product channel downstream of the Mr. Chairman, I have had a rash of does is she says that any small busi- first component part maker. This grant of in- people in my office over the last couple ness above $25 million—say the local fringement immunity would include large com- of months from all sides of this issue, hospital, the local university, the res- mercial actors such as manufacturers com- and there is no one who supports the taurant chain of, say, 15 or 20 res- bining procured components into value-added intent of my colleague’s across the taurants, the same thing for a retail completed devices, as well as those who as- aisle concerning small business, and store, a grocery store chain—they can’t semble. there is an unintended consequence avail themselves. So what happens? It is well documented that our innovation here that, I think, may be overlooked. The patent troll knows that there are ecosystem—founded on patents—drives eco- It is the fact that, certainly, those certain jurisdictions in this country nomic growth and job creation in the United doing business with gross revenues where the court will not issue the cus- States. From the hustle and bustle of down- coming in of $25 million or less are pro- tomer stay, notwithstanding the long town Houston, Silicon Valley, Chicago, New tected, as they should be and as it historic common law doctrine of cus- York, and even here in Washington, DC, stands in our legislation at this point. tomer stay. Americans want to keep our cherished system However, this amendment could cause What we simply say in this bill is as strong as possible. For the future of our a problem in which anyone making that if the customer, regardless of the economy, we cannot risk jeopardizing it.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00034 Fmt 0636 Sfmt 9920 E:\CR\FM\K05DE7.034 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7543 A number of the provisions in this bill may AMENDMENT NO. 6 OFFERED BY MS. JACKSON vice that allowed for messages to be be well-intentioned, but they have undesirable LEE sent from moving trains and railway consequences for the patent system as a The Acting CHAIR. It is now in order stations; Patricia Bath invented a whole. to consider amendment No. 6 printed in method for removing eye cataracts. They have the potential to undermine the part A of House Report 113–283. Great women inventors: Mary Ander- enforceability of all patent rights, no matter Ms. JACKSON LEE. Mr. Chairman, I son invented the windshield wipers. how valuable the patent, and thus potentially have an amendment at the desk. And our famous Hispanic inventors and incentivize infringement. The Acting CHAIR. The Clerk will others from other backgrounds: Pedro My amendment seeks to narrowly tailor the designate the amendment. Flores, the first woman to manufacture language in the bill so that it harms fewer in- The text of the amendment is as fol- the yo-yo. Our veterans are included in ventors and legitimate patent licensing activity. lows: that. Many, many others throughout I would note the opposition of my colleague Page 46, after line 22, insert the following: the Nation are included in this body of from Kentucky, Congressman THOMAS MASSIE, (g) STUDY ON IMPACT OF LEGISLATION ON inventors. himself an inventor, and unlike most of us in ABILITY OF INDIVIDUALS AND SMALL BUSI- With that, I ask my colleagues to NESSES TO PROTECT EXCLUSIVE RIGHTS TO IN- this body—a holder of patents—whose support this amendment, and I reserve amendment seeks to strike the entire Section VENTIONS AND DISCOVERIES.— (1) STUDY REQUIRED.—The Director, in con- the balance of my time. 5 of the bill. My amendment seeks to find a sultation with the Secretary of Commerce, Mr. GOODLATTE. Mr. Chairman, al- happy medium while not allowing large busi- the Director of the Administrative Office of though I am not opposed to the amend- ness concerns who have unlimited resources the United States Courts, the Director of the ment, I ask unanimous consent to con- and use the might of big law firms to take out Federal Judicial Center, the heads of other trol the time in opposition to the smaller businesses. relevant agencies, and interested parties, amendment. Also my colleague Mr. ROHRABACHER, a shall, using existing resources of the Office, The Acting CHAIR. Without objec- long-time champion of small inventors and conduct a study to examine the economic tion, the gentleman from Virginia is innovators has helped to spearhead a push impact of sections 3, 4, and 5 of this Act, and recognized for 5 minutes. urging leadership to delay this vote. any amendments made by such sections, on There was no objection. We must act thoughtfully and with great the ability of individuals and small busi- nesses owned by women, veterans, and mi- Mr. GOODLATTE. Mr. Chairman, caution as we pursue reforms to a system norities to assert, secure, and vindicate the this amendment provides for a study which took sixty years to change—and then in constitutionally guaranteed exclusive right that the USPTO would conduct to ex- the batting of a Congressional eyelash—look to inventions and discoveries by such indi- amine the impact of the changes in sec- to significantly modify once again. I was here viduals and small business. tions 3, 4, and 5 of the bill on individ- during the long road that led to the path that (2) REPORT ON STUDY.—Not later than 2 uals and small businesses owned by became Smith-Leahy, or the American Invents years after the date of the enactment of this women, veterans, and minorities. Act. Act, the Director shall submit to the Com- The Innovation Act will benefit all That it took so long is somewhat perplexing mittee on the Judiciary of the House of Rep- businesses, both large and small, re- but even more interesting is that the bill had resentatives and the Committee on the Judi- ciary of the Senate a report on the findings gardless of who owns them, including a Republican House and a Democratic Sen- and recommendations of the Director from women, veterans, and minorities. This ate. Yet we came together in a collaborative the study required under paragraph (1). bill has received strong support from fashion and made lemonade out of sixty years The Acting CHAIR. Pursuant to independent inventors, small busi- of lemons while in the midst of some of the House Resolution 429, the gentlewoman nesses, start-ups, manufacturers, re- most jarring partisanship we have seen in this from Texas (Ms. JACKSON LEE) and a tailers, Realtors, travel agents, hotels, great body. Member opposed each will control 5 and even a delicatessen. Yet here we are this morning looking to minutes. By bringing transparency and curb- pass a bill which has been essentially done in The Chair recognizes the gentle- ing litigation abuses, the Innovation under two months. woman from Texas. Act will reduce litigation costs for Mr. GOODLATTE. Mr. Chairman, I Ms. JACKSON LEE. Mr. Chairman, innovators and innovative companies would just say to the gentlewoman again, my hope is that we have the op- from all across this great land. This there is a wide array of organizations. portunity to continue to work to get will reduce the leverage patent litiga- We have 4 pages with hundreds of orga- where all of us would like to be. tion opportunists possess to extort nizations, including Americans for My amendment is very simple. It re- money from legitimate businesses and Prosperity, Americans for Tax Reform, quires the PTO director in consultation individuals. Public Knowledge. It crosses the spec- with other relevant agencies and inter- This bill not only lines up with our trum. ested parties to conduct a study to ex- constitutional authority, but our con- Small business innovators like En- amine the economic impact of the liti- stitutional duty and will help grow our gine Advocacy that the gentlewoman gation reform contained in the bill, economy, create jobs, and promote the from California put in their statement, sections 3, 4, and 5 of this act, on the engine of American ingenuity for dec- a lengthy statement, listing a whole ability of individuals and small busi- ades to come. host of companies that support this Mr. CONYERS. Will the gentleman nesses owned by women, veterans, and legislation. One of the key reasons yield? minorities to assert, secure, and vindi- they support it is because it protects Mr. GOODLATTE. I yield to the gen- cate the constitutionally guaranteed small businesses, both the innovators tleman from Michigan. exclusive right to inventions and dis- and the people who are the recipients Mr. CONYERS. I just want to asso- coveries. In essence, I think it brings of these demand letters. ciate myself with the gentleman’s re- I oppose the amendment and urge my all of us together to be able to ensure marks and join in the support for the colleagues to join me in doing so. that we promote this body politic of in- Jackson Lee amendment No. 6. It is a I yield back the balance of my time. ventors, the people who built America. very important one. The Acting CHAIR. The question is This is, in essence, to follow in the Mr. GOODLATTE. I reserve the bal- on the amendment offered by the gen- constitutional mandate to promote the ance of my time. tlewoman from Texas (Ms. JACKSON progress of science and useful arts by Ms. JACKSON LEE. Mr. Chairman, LEE). securing for limited times to authors let me thank both the chairman of the The question was taken; and the Act- and inventors an exclusive right to committee and the ranking member for ing Chair announced that the ayes ap- their respective writings and discov- their kind support of this amendment. peared to have it. eries. In my earlier discussions I said May I ask the Chair the amount of Mr. GOODLATTE. Mr. Chairman, I the wise persons of the constitutional time remaining, please. demand a recorded vote. construct recognize the importance of The Acting CHAIR. The gentlewoman The Acting CHAIR. Pursuant to inventiveness. from Texas has 3 minutes remaining. clause 6 of rule XVIII, further pro- I have with me a chart that recog- The gentleman from Virginia has 33⁄4 ceedings on the amendment offered by nizes some of our great African Amer- minutes remaining. the gentlewoman from Texas will be ican inventors: Madame C.J. Walker Ms. JACKSON LEE. Thank you very postponed. from Granville Woods invented a de- much.

VerDate Mar 15 2010 01:21 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00035 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.035 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7544 CONGRESSIONAL RECORD — HOUSE December 5, 2013 Mr. Chairman, I insert in the RECORD ufacturing powerhouse that produced the let-proof vests; Ann Moore, Inventor of the list of inventors that are just a products and ideas and created the jobs that Snugli® Baby Carrier; Lyda Newman, Inven- small measure of those coming from a would give Americans the highest standard of tor of a Synthetic Bristle Hair Brush; Patsy TM wide array of diversity. Sherman, Inventor of Scotchgard Stain living in the world. The patent system created Repellent; Ruth Wakefield, Inventor of the Let me say that we are on the floor by the Constitution’s framers played an indis- Chocolate Chip Cookie. today because we do believe in innova- pensable part in this transformation. FAMOUS HISPANIC INVENTORS tion. We are on the floor today because Mr. Chairman, it is critically important that we all believe in innovation. My whenever we consider legislation intended to Pedro Flores, First person to manufacture amendment attests to that fact. Both the yo-yo in the United States; Ellen Ochoa, improve or modernize our patent system that Invented an optical analysis system. Also the chairman and ranking member we do no harm to the individual inventors was first Hispanic astronaut; Luis Federico, agree that we should look into those whose innovations fuel our economy. Awarded Nobel Prize for discovery of sugar small inventors that have been the We also must take that we not change the nucleotides and their role in the biosynthesis backbone of American society. patent system in such a way that we discour- of carbohydrates; Carlos Finlay, Identified I would ask again that as we look at age inventors from unleashing the creative en- the mosquito as a carrier of the deadly yel- the full measure of this legislation, ergies that turn impossible dreams into prac- low fever germ; Santiago Ramon y Cajal, In- that we also will take that into consid- tical and commercially viable products and ventor who was awarded the Nobel Prize for his work on the structure of the nervous sys- eration. American jobs. I am hoping that my amendment No. tem; Luis Miramontes, Co-inventor of the Mr. Chairman, my amendment supplements contraceptive pill. Discovered procedure for 6 will be supported. But in conclusion, and improves the bill, which already requires synthesizing progestin norethindrone, the I want to take note of the fact that the PTO to conduct 4 studies and submit reports active ingredient in the birth control pill; Jackson Lee amendment No. 5 will be to Congress. The required studies are: Guillermo Gonzalez Camarena, Invented an voted on and Mr. MASSIE’s amendment 1. Study On Secondary Market Oversight early color television system; Felipe Vadillo, will be voted on. We hope that we will For Patent Transactions To Promote Trans- Invented method of predicting premature get a strong vote of support. But I parency And Ethical Business Practices. fetal membrane rupture in pregnant women; would hope that whatever reflection Juan Lozano, Invented the Rocket Belt, in- 2. Study On Patents Owned By The United spired by his fascination with jet packs. those votes characterize, it in no way States Government reflects on the issue which we are try- 3. Study On Patent Quality And Access To TEN GREAT AFRICAN AMERICAN INVENTORS ing to bring forward. Members will The Best Information During Examination Despite the hardships suffered through vote and Members will not vote. We 4. Study On Patent Small Claims Court slavery, many African Americans have man- hope they will vote for our amend- aged to become great inventors, scientists, What is missing from this list is a study on and thinkers. This is a list of the ten great- ments. the impact of the changes wrought by the leg- est African American inventors. But, really, what this is all about is islation on the very persons the American pat- Madame CJ Walker 1867–1919: Invented: to make sure that we do cover and pro- ent system was created to encourage and pro- Hair Lotion for black women—Madam Walk- tect that genius that lies across the tect: individual innovators who take the risk to er was an entrepreneur who built her empire landscape of America. Maybe a 5-year- create, innovate, and invent the discoveries developing hair products for black women. old that is tinkering with Legos is an that change our world for the better. Inventors She was the first African-American woman inventor who needs to be protected. like Steve Jobs (Apple), Bill Gates (Microsoft), millionaire. Frederick McKinley Jones 1893–1961: In- That is the gist of what our discussion Henry Ford (Ford Motors), Thomas Edison and debate is. That is why my amend- vented automatic refrigeration systems for (GE); Alexander Graham Bell (AT&T). long-haul trucks—Frederick McKinley is ment No. 6 was offered and No. 5. Mr. Chairman, H.R. 3309 contains many best known for inventing an automatic re- I ask that this amendment be accept- new and complex changes to the patent litiga- frigeration system for long-haul trucks in ed by my colleagues, and I yield back tion system such as ‘‘loser pays,’’ delayed and 1935 (a roof-mounted cooling device). the balance of my time. restricted discovery, and heightened pleading Jan Ernst Matzeliger 1852–1889: Invented: Mr. Chairman, I wish to thank the Rules requirements imposed on inventors seeking to Shoe lasting machinery—Jan Matzeliger was Committee, particularly Chairman Sessions protect their constitutional right to their discov- born in Paramaribo, Dutch Guiana in 1852. and Ranking Member Slaughter, for making eries. He immigrated to the United States at the age of 18. Jan Matzeliger helped revolu- my amendment in order. Let me also express If these changes were found to impede their my appreciation to Chairman Goodlatte and tionize the shoe industry by developing a ability to protect their rights and thus discour- shoe lasting machine that would attach the Ranking Member Conyers for their hard work age future innovators from inventing, would we sole to the shoe in one minute. on this legislation and for their shared commit- not want to revisit the law and make the need- Norbert Rillieux 1806–1894: Invented: Sugar ment to ensuring that the American patent ed revisions? refining machinery—Norbert Rillieux was system remains the best in the world. The Jackson Lee Amendment simply directs born on March 17, 1806 in New Orleans, Lou- The Jackson Lee Amendment simply re- that the impact of these new changes be stud- isiana. Norbert was born a free man, al- quires the PTO Director, in consultation with ied and reported to Congress so that identified though his mother was a slave. His father was a wealthy White engineer involved in other relevant agencies, and interested par- problems, if any, may be later corrected to en- ties, to conduct a study to examine the eco- the cotton industry. Rillieux invented the sure our patent system remains the best in the multiple-effect vacuum pan evaporator. This nomic impact of the litigation reforms con- world. innovation, adopted in sugar refining, esca- tained in the bill (sections 3, 4, and 5 of this I ask unanimous consent to append at the lated production, reduced the price, and was Act) on the ability of individuals and small end of my remarks a list of some of the great responsible for transforming sugar into a businesses owned by women, veterans, and advances created by American inventors of all household item. minorities to assert, secure, and vindicate the backgrounds, races, and gender. George Edward Alcorn 1940: Invented: Im- constitutionally guaranteed exclusive right to I urge my colleagues to support the Jackson aging X-Ray Spectrometer—Physicist George Edward Alcorn, Jr. is best known for inventions and discoveries. Lee Amendment #8. Mr. Chairman, while there may be con- his development of the imaging x-ray spec- FAMOUS WOMEN INVENTORS OF THE MODERN flicting views on both sides of the aisle regard- trometer. An x-ray spectrometer assists sci- ERA entists in identifying a material by pro- ing the wisdom or necessity of some of the Mary Anderson, Inventor of Windshield ducing an x-ray spectrum of it, allowing it to legislative proposals contained in H.R. 3309, Wipers; Barbara Askins, Inventor of a New be examined visually. For this achievement there is no disagreement in this House on the Film Developing Method Used by NASA; Pa- he was recognized with the NASA/GSFC central importance of honoring the mandate of tricia Billings, Invented Geobond®, first non- (Goddard Space Flight Center) Inventor of the Constitution to ‘‘Promote the Progress of toxic workable replacement for asbestos; the Year Award. Science and useful Arts, by securing for lim- Marion Donovan, Inventor of Disposable Dia- Lewis Latimer 1848–1928: Invented: Long ited times to Authors and Inventors the exclu- pers; Bette Nesmith Graham, Inventor of life lightbulb—Lewis Latimer was born in sive Right to their respective Writings and Dis- Liquid Paper; Ruth Handler, Inventor of the Chelsea, Massachusetts in 1848. He was the Barbie Doll; Dr. Grace Murray Hopper, In- son of George and Rebecca Latimer, escaped coveries’’ (U.S. Const. Art. I, Sec. 8, clause 8.) vented COBOL Computer Language. slaves from Virginia. Latimer devised a way Mr. Chairman, the Founding Fathers under- Mary Phelps Jacob, Inventor of the Modern of encasing the filament within a cardboard stood that America’s future and its security lay Brassiere; Margaret Knight, Inventor of the envelope which prevented the carbon from in its ability to transform itself from a rural and Paper Bag Machine; Stephanie Kwolek, In- breaking and thereby provided a much agrarian economy into a commercial and man- ventor of Kevlar, the main ingredient in bul- longer life to the bulb and hence made the

VerDate Mar 15 2010 02:48 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00036 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.038 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7545 bulbs less expensive and more efficient. This attack on their constitutional rights hedge against misconduct in the Pat- enabled electric lighting to be installed by eliminating from this bill the bill’s ent Office and, at a minimum, will help within homes and throughout streets. elimination of the right for judicial re- ensure that the PTO’s initial deter- Granville Woods 1856–1910: Invented: A var- iation on the induction telegraph—Granville view of the American inventors who minations are as meticulous as inven- Woods was often referred to as the ‘‘Black feel that perhaps they were not treated tors deserve. Thomas Edison.’’ In 1887, Woods developed legally by their applications to the pat- I spoke in favor of this amendment his most important invention—a device that ent system. and voted for it when it was offered in allowed for messages to be sent from moving They have had a right since 1836 to a the Judiciary Committee, and I con- trains and railway stations. By allowing dis- judicial review. This is a constitutional tinue to support it. I urge my col- patchers to know the location of each train, right that has been for a long time rec- leagues to vote in favor. it provided for greater safety and a decrease ognized. This bill eliminates that. Of in railway accidents. Mr. GOODLATTE. Mr. Chairman, I Patricia Bath 1942: Invented: A form of eye course, we are out to get the troll. Ev- rise in opposition to the amendment surgery using lasers—Dr. Patricia Bath, an erything is going to be aimed at get- and claim the time in opposition to the ophthalmologist became the first African ting the troll. How does eliminating amendment. American woman doctor to receive a patent the constitutional right of an inde- The Acting CHAIR. The gentleman for a medical invention. The method she in- pendent inventor who doesn’t have a from Virginia is recognized for 5 min- vention for removing cataract lenses, trans- lot of money but now he feels maybe he utes. formed eye surgery, using a laser device has been mistreated or maybe not le- making the procedure more accurate. An- Mr. GOODLATTE. Mr. Chairman, I other device invented by Dr. Bath was able gally treated by the patent office, up strongly oppose the gentleman’s to restore sight to people who had been blind until now he has had the right, as amendment to strike the bill’s provi- for over 30 years. every other American citizen, to their sions regarding section 145. The bill’s Garrett Morgan 1877–1963: Invented: Gas day in court; and instead, we are tak- provisions are strongly supported by mask, and a type of traffic light—Garrett ing the little guy and eliminating his Morgan invented the gas mask in 1914. On the Patent Office. day in court if he feels that he has a le- The amendment would strike one of July 25, 1916, Garrett Morgan made national gitimate legal claim that he was not news for using his gas mask to rescue 32 men the bill’s most important reforms for trapped during an explosion in an under- treated legally through the patent sys- preventing patent trolls from obtaining ground tunnel 250 feet beneath Lake Erie. tem? low-quality patents and bringing extor- The Morgan gas mask was later refined for Why are we attacking the little guy? tionate lawsuits. The bill’s provisions use by U.S. Army during WWI. After wit- Well, we have to get to the trolls. We are necessary because of the Supreme nessing a collision between an automobile have got to make it much more dif- Court’s recent decision in Kappos v. and a horse-drawn carriage, Garrett Morgan ficult for a little guy to get a patent. Hyatt which construed section 145 to invented the traffic signal. We have got to make it much more dif- Otis Boykin 1920–1982: Invented: Improved allow an applicant to evade substantive electrical resistor, and a control unit for ficult for a little guy to defend a patent patent examination in the Patent Of- pacemakers—Boykin’s most famous inven- against these mega-multinational cor- fice and to instead present his evidence tion was a control unit for the heart pace- porations that routinely infringe on of patentability for the first time in maker. The device uses electrical impulses the small guy. Federal district court. A district judge to maintain a regular heartbeat. Also in- Now, we know we have heard about would then be required to make de vented more than 25 electronic devices, in- the wrongdoing of a certain percentage novo findings of patentability. cluding an improved electrical resistor for of inventors or people who own patents Section 145 is outdated and unneces- computers, radios, televisions, and guided in this country. Let’s get a patent. But sary. Today, applicants have adminis- missiles. this bill totally undermines and at- trative routes for offering new evi- Mr. GOODLATTE. Mr. Chairman, I tacks the rights of people who are han- dence. Even after a board decision af- thank the gentlewoman for her amend- dling themselves correctly. It makes it firming the examiner’s rejection, an ment and urge my colleagues to sup- more difficult for the independent in- applicant can file a continuation appli- port the underlying bill. ventor. Here we are taking away his cation and can introduce new evidence I yield back the balance of my time. constitutional rights. The Acting CHAIR. The question is of patentability in that continuation. By the way, let me just note I have on the amendment offered by the gen- Ever since 1836, the United States has heard Mr. GOODLATTE say that this in tlewoman from Texas (Ms. JACKSON required that all patent applications be some way eliminates the regular proc- LEE). reviewed by patent examiners with a ess of the Patent Office. That is not the The amendment was agreed to. scientific education, people who under- case, Mr. GOODLATTE. The Patent Of- AMENDMENT NO. 7 OFFERED BY MR. stand the technology that the patent fice procedures are kept the same in ROHRABACHER covers. This helps to ensure that pat- this bill as they have been. The only The Acting CHAIR. It is now in order ents are not issued for inventions that thing that this bill changes, or that to consider amendment No. 7 printed in are already in the public domain or your bill seeks to change that my part A of House Report 113–283. that would be obvious to a person amendment would eliminate, is elimi- Mr. ROHRABACHER. Mr. Chairman, skilled in the technology. nating the right of these independent I rise in support of my amendment. Under the gentleman from Califor- The Acting CHAIR. The Clerk will inventors to go to court and say they made an unconstitutionally legal deci- nia’s amendment, however, an appli- designate the amendment. cant could short-circuit the entire ap- The text of the amendment is as fol- sion on my patent. plication process and present his evi- lows: I yield 1 minute to the gentlewoman dence of patentability for the first from California (Ms. LOFGREN). Page 47, strike line 3 and all that follows time in district court. Now, I have through page 48, line 20, and redesignate suc- Ms. LOFGREN. I thank the gen- ceeding subsections, and references thereto, tleman for yielding. known many district judges who are accordingly. Mr. Chairman, while Mr. ROHR- expert lawyers, but very few of them The Acting CHAIR. Pursuant to ABACHER and I do not agree on the un- have degrees in biotechnology. Very House Resolution 429, the gentleman derlying bill, I do support his amend- few of them have degrees in electrical from California (Mr. ROHRABACHER) and ment. engineering; yet under this amend- a Member opposed each will control 5 The Innovation Act would repeal sec- ment, these judges would be making minutes. tion 145, the right of a patent applicant the initial determination whether, for The Chair recognizes the gentleman to appeal an initial PTO determination example, a purported computer inven- from California. in Federal court. tion is novel and nonobvious and Mr. ROHRABACHER. Mr. Chairman, whether it has been properly enabled. I rise in support of my own amend- b 1145 I would ask my colleagues, is there ment, which would remove section 9(a) This is a long-standing provision of anyone here who believes the United from the Innovation Act. law, and while it is rarely used, and States will issue higher-quality patents My amendment would protect the even less often successful, I do believe if the applications are never, never, American inventors from an incredible that it poses at least theoretically a never reviewed by an examiner with a

VerDate Mar 15 2010 02:40 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00037 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.053 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7546 CONGRESSIONAL RECORD — HOUSE December 5, 2013 scientific background? Does anyone be- with my position. The Supreme Court (1) DIRECTOR.—The term ‘‘Director’’ means lieve that we will have better semicon- is interpreting the current law on the the Under Secretary of Commerce for Intel- ductor patents if they are never exam- books, a law which has been on the lectual Property and Director of the United ined by an electrical engineer? Will we books for a long time, and is super- States Patent and Trademark Office. (2) OFFICE.—The term ‘‘Office’’ means the really have better drug patents if they seded by new provisions that have been United States Patent and Trademark Office. are never reviewed by someone with a added into the patent law that give in- SEC. 3. TRANSPARENCY OF PATENT OWNERSHIP. degree in chemistry? ventors additional ways to have their (a) JUDICIAL PROCEEDINGS.— I would submit that the gentleman’s patents reviewed if they are denied by (1) IN GENERAL.—Section 281 of title 35, amendment is nothing more than a rec- the Patent Office. So the Supreme United States Code, is amended— ipe book for patent trolls to obtain Court is interpreting the current law. (A) by striking ‘‘A patentee’’ and inserting low-quality patents claiming tech- What this bill does is it changes the ‘‘(a) IN GENERAL.—A patentee’’; and nology that is already in widespread current law because it recognizes that, (B) by adding at the end the following: ‘‘(b) INITIAL DISCLOSURE.—A patentee who use. based on that decision, it enables pat- has filed a civil action under subsection (a) Finally, we cannot ignore the evi- ent trolls to do some of the most out- is required to disclose to the court and to all dence of who is actually using these rageous things and cripples the ability adverse parties, any persons, associations of section 145 actions. These lawsuits, of the Patent Office to actually look at persons, firms, partnerships, corporations which seek to obtain a patent without the patent in the form that the law in- (including parent corporations), or other en- review by technically trained exam- tends, and that is by engineers and sci- tities other than the patentee itself known iners, are heavily used by infamous by the patentee to have— entists, chemists, biologists, people ‘‘(1) a financial interest (of any kind) in patent trolls who are trying to obtain who have training in the field and can the subject matter in controversy or in a patents on computer technology from identify whether something is indeed a party to the proceeding; or the 1980s and 1990s. These trolls are novel idea or not. That is what the ‘‘(2) any other kind of interest that could still pursuing patent applications that amendment would lop off. be substantially affected by the outcome of were filed before 1995 when patent The amendment would continue a the proceeding. terms ran 17 years from when the pat- pathway around the Patent Office that ‘‘(c) ENFORCEMENT.—The court may enforce ent was issued. The most infamous user the requirement under subsection (b) upon a would allow patent trolls to get low- motion by an opposing party or sua sponte. of section 145 still has hundreds of quality patents because they would not ‘‘(d) DEFINITIONS.—For purposes of this sec- these applications pending and is try- be properly examined and continue the tion, the terms ‘proceeding’ and ‘financial ing to obtain patents on computer problem that we face with patent interest’ have the meaning given those terms technology that literally predate Win- trolls. So I strongly oppose the amend- in section 455(d) of title 28.’’. dows and Apple Macintosh. A vote for ment. (2) TECHNICAL AND CONFORMING AMEND- this amendment is nothing more than MENT.—Section 290 of title 35, United States I yield back the balance of my time. Code, is amended in the first sentence by in- a vote to advance that patent troll The Acting CHAIR. The question is serting after ‘‘inventor,’’ the following: ‘‘any agenda and allow abuse of the U.S. pat- on the amendment offered by the gen- information that a patentee has publicly dis- ent system. I strongly urge my col- tleman from California (Mr. ROHR- closed under section 281(b),’’. leagues to vote ‘‘no’’ on this amend- ABACHER). (b) PATENT AND TRADEMARK OFFICE PRO- ment. The question was taken; and the Act- CEEDINGS.— I reserve the balance of my time. ing Chair announced that the noes ap- (1) IN GENERAL.—Chapter 26 of title 35, Mr. ROHRABACHER. Mr. Chairman, United States Code, is amended by adding at peared to have it. the end the following: I yield 30 seconds to the gentleman Mr. ROHRABACHER. Mr. Chairman, ‘‘§ 263. Disclosure of information relating to from Michigan (Mr. CONYERS). I demand a recorded vote. Mr. CONYERS. I want to commend patent ownership The Acting CHAIR. Pursuant to ‘‘(a) DEFINITIONS.—In this section— Mr. ROHRABACHER for what he is doing clause 6 of rule XVIII, further pro- ‘‘(1) the term ‘period of noncompliance’ re- here. This is another little guy provi- ceedings on the amendment offered by fers to a period of time during which the ul- sion that deserves support because the the gentleman from California will be timate parent entity of an assignee of a pat- Supreme Court has even recently af- postponed. ent has not been disclosed to the United States Patent and Trademark Office in ac- firmed the expansive breadth of evi- AMENDMENT NO. 8 OFFERED BY MR. CONYERS cordance with this section; and dence that a patent applicant may in- The Acting CHAIR. It is now in order troduce in a section 145 proceeding. ‘‘(2) the term ‘ultimate parent entity’ has to consider amendment No. 8 printed in the meaning given the term in section And so I am for keeping this provision part A of House Report 113–283. in, and I am proud to add my support 801.1(a)(3) of title 16, Code of Federal Regula- Mr. CONYERS. Mr. Chairman, I have tions, or any successor regulation. to the Rohrabacher amendment. an amendment at the desk. ‘‘(b) REQUIREMENT TO DISCLOSE ASSIGN- Mr. GOODLATTE. I reserve the bal- The Acting CHAIR. The Clerk will MENT.—An assignment of all substantial ance of my time. designate the amendment. rights in an issued patent that results in a Mr. ROHRABACHER. I yield myself change to the ultimate parent entity shall be The text of the amendment is as fol- 30 seconds. recorded in the Patent and Trademark Office Well, the Supreme Court disagrees lows: within 3 months of the assignment. with what the chairman of our Judici- Strike all after the enacting clause and in- ‘‘(c) DISCLOSURE REQUIREMENTS.—A disclo- sure under subsection (b) shall include the ary Committee says. The Supreme sert the following: SECTION 1. SHORT TITLE; TABLE OF CONTENTS. name of the assignee and the ultimate par- Court has decided against the very ar- ent entity of the assignee. (a) SHORT TITLE.—This Act may be cited as gument that he gave. And the fact is, if ‘‘(d) FAILURE TO COMPLY.—If a party re- the ‘‘Deceptive Patent Practices Reduction someone in this country, an inventor, quired to make a disclosure under subsection Act’’. (b) fails to comply with such requirement, in an independent inventor or anybody (b) TABLE OF CONTENTS.—The table of con- else thinks they have a claim that a a civil action in which that party asserts a tents for this Act is as follows: claim for infringement of the patent, that government agency has not treated Sec. 1. Short title; table of contents. party may not recover increased damages them in a constitutional and lawful Sec. 2. Definitions. under section 284 or attorney fees under sec- manner, they have a right to take that Sec. 3. Transparency of patent ownership. tion 285 with respect to infringing activities before a court. This bill eliminates Sec. 4. Customer stay. taking place during any period of noncompli- that constitutional right that our in- Sec. 5. Small business education, outreach, ance.’’. ventors have had since the 1830s. I am and information access. (2) APPLICABILITY.—The amendment made sorry, this again discloses the power Sec. 6. Codification of the double-patenting by paragraph (1) shall apply to any patent doctrine for first-inventor-to- grab behind this bill. I ask support for issued on or after the date of enactment of file patents. this Act. my amendment. Sec. 7. Technical corrections to the Leahy- (3) CONFORMING AMENDMENT.—The table of I yield back the balance of my time. Smith America Invents Act. sections for chapter 26 of title 35, United Mr. GOODLATTE. Mr. Chairman, I Sec. 8. Reports. States Code, is amended by adding at the end yield myself the balance of my time. Sec. 9. Effective date. the following new item: I would just say to the gentleman, SEC. 2. DEFINITIONS. ‘‘263. Disclosure of information relating the Supreme Court doesn’t disagree In this Act: to patent ownership.’’.

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00038 Fmt 0636 Sfmt 0655 E:\CR\FM\K05DE7.042 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7547 SEC. 4. CUSTOMER STAY. or more of the common issues that gave rise was, or were deemed to be, effectively filed (a) IN GENERAL.—Chapter 29 of title 35, to the stay, under section 102(d) before the effective fil- United States Code, is amended by adding at the court may, upon motion, determine that ing date of the claimed invention of the sec- the end the following new section: such consent judgment or unappealed final ond patent; and ‘‘§ 299A. Customer stay decision shall not be binding on the covered ‘‘(3) the patentee of the second patent has ‘‘(a) DEFINITIONS.—In this section— customer with respect to one or more of such not disclaimed the rights to enforce the sec- ‘‘(1) the term ‘covered customer’ means a common issues based on a showing that such ond patent independently from, and beyond party accused of infringing a patent or pat- an outcome would unreasonably prejudice or the statutory term of, the first patent.’’. ents in dispute based on a covered product or be manifestly unjust to the covered cus- (b) REGULATIONS.—The Director shall pro- process; tomer in light of the circumstances of the mulgate regulations setting forth the form ‘‘(2) the term ‘covered manufacturer’ case. and content of any disclaimer required for a means a person who manufactures or sup- ‘‘(f) RULE OF CONSTRUCTION.—Nothing in patent to be issued in compliance with sec- plies, or causes the manufacture or supply this section shall be construed to limit the of, a covered product or process, or a rel- ability of a court to grant, expand, or modify tion 106 of title 35, United States Code, as evant part thereof; and any stay granted pursuant to this section, or added by subsection (a). Such regulations ‘‘(3) the term ‘covered product or process’ grant any motion to intervene, if otherwise shall apply to any disclaimer filed after a means a component, product, process, sys- permitted by law.’’. patent has issued. A disclaimer, when filed, tem, service, method, or a relevant part (b) CONFORMING AMENDMENT.—The table of shall be considered for the purpose of deter- thereof, that— sections for chapter 29 of title 35, United mining the validity of the patent under sec- ‘‘(A) is alleged to infringe the patent or States Code, is amended by adding at the end tion 106 of title 35, United States Code. patents in dispute, or the following new item: (c) CONFORMING AMENDMENT.—The table of ‘‘(B) implements a process alleged to in- ‘‘299A. Customer stay.’’. sections for chapter 10 of title 35, United fringe the patent or patents in dispute. SEC. 5. SMALL BUSINESS EDUCATION, OUT- States Code, is amended by adding at the end OTION FOR STAY.—In a civil action in ‘‘(b) M REACH, AND INFORMATION ACCESS. the following new item: which a party asserts a claim for relief aris- (a) SMALL BUSINESS EDUCATION AND OUT- ing under any Act of Congress relating to REACH.— ‘‘106. Prior art in cases of double pat- patents (other than an action that includes a (1) RESOURCES FOR SMALL BUSINESS.—Using enting.’’. cause of action described in section 271(e) of existing resources, the Director shall develop (d) EXCLUSIVE RULE.—A patent subject to this title), the court shall grant a motion to educational resources for small businesses to section 106 of title 35, United States Code, as stay at least the portion of the action address concerns arising from patent in- added by subsection (a), shall not be held in- against a covered customer that relates to fringement. infringement of a patent involving a covered valid on any nonstatutory, double-patenting (2) SMALL BUSINESS PATENT OMBUDSMAN.— product or process if— The Patent Ombudsman Program established ground. ‘‘(1) the covered manufacturer and the cov- under section 28 of the Leahy-Smith America (e) EFFECTIVE DATE.—The amendments ered customer consent in writing to the stay; Invents Act (35 U.S.C. 2 note) shall coordi- made by this section shall take effect on the ‘‘(2) the covered manufacturer is a party to nate with the existing small business out- date of the enactment of this Act and shall the action or a separate action involving the reach programs of the Office to provide edu- apply to a patent or patent application only same patent or patents relating to the same cation and awareness on abusive patent liti- if both the first and second patents described covered product or process; gation practices. in section 106 of title 35, United States Code, ‘‘(3) the covered customer agrees to be (b) IMPROVING INFORMATION TRANSPARENCY as added by subsection (a), are patents or bound under the principles of collateral es- FOR SMALL BUSINESS AND THE UNITED STATES patent applications that are described in sec- toppel by any issues finally decided as to the PATENT AND TRADEMARK OFFICE USERS.— tion 3(n)(1) of the Leahy-Smith America In- covered manufacturer in an action described (1) WEB SITE.—Using existing resources, vents Act (35 U.S.C. 100 note). in paragraph (2) that the covered customer the Director shall create a user-friendly sec- has in common with the covered manufac- tion on the official Web site of the Office to SEC. 7. TECHNICAL CORRECTIONS TO THE turer; and notify the public when a patent case is LEAHY-SMITH AMERICA INVENTS ACT. ‘‘(4) the motion is filed after the first brought in Federal court and with respect to pleading in the action but not later than the each patent at issue in such case, the Direc- (a) TECHNICAL CORRECTIONS.— later of— tor shall include— (1) INVENTOR’S OATH OR DECLARATION.— ‘‘(A) 120 days after service of the first (A) information disclosed pursuant to sec- (A) AMENDMENT.—Section 115(g)(1) of title pleading in the action that specifically iden- tion 290 of title 35, United States Code, as 35, United States Code, is amended— tifies the covered product or process as a amended by section 4(a)(2) of this Act; and (i) in the matter preceding subparagraph basis for the alleged infringement of the pat- (B) any information the Director deter- (A), by striking ‘‘claims the benefit’’ and in- ent by the covered customer, and specifically mines to be relevant. serting ‘‘is entitled, as to each invention identifies how the covered product or process (2) FORMAT.—In order to promote accessi- claimed in the application, to the benefit’’; is alleged to infringe the patent; or bility for the public, the information de- and ‘‘(B) the date on which the first scheduling scribed in paragraph (1) shall be searchable (ii) in subparagraph (A), by striking ‘‘meet- order in the case is entered. by patent number, patent art area, and enti- ing the requirements of subsection (a) was ‘‘(c) APPLICABILITY.—A stay issued under ty. executed by the individual and was filed in subsection (b) shall apply only to those as- SEC. 6. CODIFICATION OF THE DOUBLE-PAT- connection with the earlier-filed applica- serted patents and products, systems, meth- tion’’ and inserting the following: ‘‘executed ods, or components accused of infringement ENTING DOCTRINE FOR FIRST-IN- VENTOR-TO-FILE PATENTS. by or on behalf of the individual was filed in in the action. (a) AMENDMENT.—Chapter 10 of title 35, ‘‘(d) VACATING STAY.— connection with the earlier-filed application United States Code, is amended by adding at ‘‘(1) IN GENERAL.—A stay entered under and meets the requirements of this section this section may be vacated upon grant of a the end the following new section: as effective on the date such oath or declara- motion based on a showing that— ‘‘§ 106. Prior art in cases of double patenting tion was filed’’. ‘‘(A) the action involving the covered man- ‘‘A claimed invention of a patent issued (B) EFFECTIVE DATE.—The amendment ufacturer will not resolve a major issue in under section 151 (referred to in this section made by subparagraph (A) shall be effective suit against the covered customer; or as the ‘first patent’) that is not prior art to as if included in the amendment made by ‘‘(B) the stay unreasonably prejudices or a claimed invention of another patent (re- section 4(a)(1) of the Leahy-Smith America would be manifestly unjust to the party ferred to in this section as the ‘second pat- Invents Act (Public Law 112–29; 125 Stat. 293). seeking to vacate the stay. ent’) shall be considered prior art to the (2) NOVELTY.— ‘‘(2) SEPARATE ACTIONS.—In the case of a claimed invention of the second patent for (A) AMENDMENT.—Section 102(b)(1)(A) of stay entered under this section based on the the purpose of determining the nonobvious- title 35, United States Code, is amended by participation of the covered manufacturer in ness of the claimed invention of the second striking ‘‘the inventor or joint inventor or a separate action described in subsection patent under section 103 if— by another’’ and inserting ‘‘the inventor or a (b)(2), a motion under paragraph (1) may ‘‘(1) the claimed invention of the first pat- joint inventor or another’’. only be granted if the court in such separate ent was effectively filed under section 102(d) (B) EFFECTIVE DATE.—The amendment action determines that the showing required on or before the effective filing date of the made by subparagraph (A) shall be effective under paragraph (1) has been made. claimed invention of the second patent; as if included in the amendment made by ‘‘(e) WAIVER OF ESTOPPEL EFFECT.—If, fol- ‘‘(2) either— section 3(b)(1) of the Leahy-Smith America lowing the grant of a motion to stay under ‘‘(A) the first patent and the second patent Invents Act (Public Law 112–29; 125 Stat. 285). this section, the covered manufacturer in an name the same inventor; or (3) ASSIGNEE FILERS.— action described in subsection (b)(2)— ‘‘(B) the claimed invention of the first pat- (A) BENEFIT OF EARLIER FILING DATE; RIGHT ‘‘(1) seeks or consents to entry of a consent ent would constitute prior art to the claimed OF PRIORITY.—Section 119(e)(1) of title 35, judgment involving one or more of the com- invention of the second patent under section United States Code, is amended, in the first mon issues that gave rise to the stay; or 102(a)(2) if an exception under section sentence, by striking ‘‘by an inventor or in- ‘‘(2) fails to prosecute, to a final, non-ap- 102(b)(2) were deemed to be inapplicable and ventors named’’ and inserting ‘‘that names pealable judgment, a final decision as to one the claimed invention of the first patent the inventor or a joint inventor’’.

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(B) BENEFIT OF EARLIER FILING DATE IN THE the patent secondary market, including on Comptroller General shall submit to the UNITED STATES.—Section 120 of title 35, the participants in such markets, to ensure Committee on the Judiciary of the House of United States Code, is amended, in the first that the market is a level playing field and Representatives and the Committee on the sentence, by striking ‘‘names an inventor or that brokers in the market have the req- Judiciary of the Senate a report on the find- joint inventor’’ and inserting ‘‘names the in- uisite expertise and adhere to ethical busi- ings and recommendations from the study ventor or a joint inventor’’. ness practices; and required by this subsection, including rec- (C) EFFECTIVE DATE.—The amendments (D) to examine the requirements placed on ommendations for any changes to laws and made by this paragraph shall take effect on other markets. regulations that will improve the examina- the date of the enactment of this Act and (2) SUBMISSION OF STUDY.—Not later than tion of patent applications and patent qual- shall apply to any patent application, and 18 months after the date of the enactment of ity. any patent issuing from such application, this Act, the Director shall submit a report (d) STUDY ON PATENT SMALL CLAIMS that is filed on or after September 16, 2012. to the Committee on the Judiciary of the COURT.— (4) DERIVED PATENTS.— House of Representatives and the Committee (1) STUDY REQUIRED.— (A) AMENDMENT.—Section 291(b) of title 35, on the Judiciary of the Senate on the find- (A) IN GENERAL.—The Director of the Ad- United States Code, is amended by striking ings and recommendations of the Director ministrative Office of the United States ‘‘or joint inventor’’ and inserting ‘‘or a joint from the study required under paragraph (1). Courts, in consultation with the Director of inventor’’. (b) STUDY ON PATENTS OWNED BY THE the Federal Judicial Center, shall, using ex- (B) EFFECTIVE DATE.—The amendment UNITED STATES GOVERNMENT.— isting resources, conduct a study to examine made by subparagraph (A) shall be effective (1) STUDY REQUIRED.—The Director, in con- the idea of developing a pilot program for as if included in the amendment made by sultation with the heads of relevant agencies patent small claims courts in certain judi- section 3(h)(1) of the Leahy-Smith America and interested parties, shall, using existing cial districts within the existing patent pilot Invents Act (Public Law 112–29; 125 Stat. 288). resources of the Office, conduct a study on program mandated by Public Law 111–349 (28 (5) SPECIFICATION.—Notwithstanding sec- patents owned by the United States Govern- U.S.C. 137 note). tion 4(e) of the Leahy-Smith America In- ment that— (B) CONTENTS OF STUDY.—The study con- vents Act (Public Law 112–29; 125 Stat. 297), (A) examines how such patents are licensed ducted under subparagraph (A) shall exam- the amendments made by subsections (c) and and sold, with reference to any litigation re- ine— (d) of section 4 of such Act shall apply to any lating to the licensing or sale of such pat- (i) the number and qualifications for judges proceeding or matter, that is pending on, or ents; that could serve on the courts described in filed on or after, the date of the enactment (B) provides legislative and administrative subparagraph (A); of this Act. recommendations on whether there should (ii) how the courts described in subpara- (6) PATENT OWNER RESPONSE.— be restrictions placed on patents acquired graph (A) would be designated and the nec- (A) CONDUCT OF INTER PARTES REVIEW.— from the United States Government; essary criteria; Section 316(a)(8) of title 35, United States (C) examines whether or not each relevant (iii) the costs that would be incurred for Code, is amended by striking ‘‘the petition agency maintains adequate records on the establishing, maintaining and operating the under section 313’’ and inserting ‘‘the peti- patents owned by such agency, specifically pilot program described in subparagraph (A); tion under section 311’’. whether such agency addresses licensing, as- and signment, and Government grants for tech- (iv) the steps that would be taken to en- (B) CONDUCT OF POST-GRANT REVIEW.—Sec- tion 326(a)(8) of title 35, United States Code, nology related to such patents; and sure that the pilot small claims courts are is amended by striking ‘‘the petition under (D) provides recommendations to ensure not misused for abusive patent litigation. section 323’’ and inserting ‘‘the petition that each relevant agency has an adequate (2) REPORT.—Not later than 1 year after under section 321’’. point of contact that is responsible for man- the date of the enactment of this Act, the aging the patent portfolio of the agency. Director of the Administrative Office of the (C) EFFECTIVE DATE.—The amendments United States Courts shall submit a report made by this paragraph shall take effect on (2) REPORT ON STUDY.—Not later than 9 to the Committee on the Judiciary of the the date of the enactment of this Act. months after the date of completion of the study required by subsection (a)(1), the Di- House of Representatives and the Committee (7) TIME LIMIT FOR COMMENCING MISCONDUCT rector shall submit to the Committee on the on the Judiciary of the Senate on the find- PROCEEDINGS.— Judiciary of the House of Representatives ings and recommendations from the study (A) AMENDMENT.—The fourth sentence of required under paragraph (1). section 32 of title 35, United States Code, is and the Committee on the Judiciary of the (e) STUDY ON BAD-FAITH DEMAND LET- amended by striking ‘‘1 year’’ and inserting Senate a report on the findings and rec- TERS.— ‘‘2 years’’. ommendations of the Director from the study required under paragraph (1). (1) STUDY.—The Intellectual Property En- (B) EFFECTIVE DATE.—The amendment (c) STUDY ON PATENT QUALITY AND ACCESS forcement Coordinator, in consultation with made by this paragraph shall apply to any TO THE BEST INFORMATION DURING EXAMINA- the Director, shall conduct a study of the action in which the Office files a complaint TION.— practice by a person, in connection with the on or after the date of enactment of this Act. (1) GAO STUDY.—The Comptroller General assertion of a United States patent, of send- (b) POST-GRANT REVIEW AMENDMENT.—Sec- of the United States shall conduct a study on ing written communications that state that tion 325(e)(2) of title 35, United States Code, is amended by striking ‘‘or reasonably could patent examination at the Office and the the intended recipients or any affiliated per- have raised’’. technologies available to improve examina- sons of such recipients are infringing or have (c) CLARIFICATION OF JURISDICTION.—Sec- tion and improve patent quality. infringed the patent and bear liability or owe tion 1338 of title 28, United States Code, is (2) CONTENTS OF THE STUDY.—The study re- compensation to another, whereby— amended by adding at the end the following: quired under paragraph (1) shall include the (A) the communications falsely threaten ‘‘(d) For purposes of this section, section following: that administrative or judicial relief will be 1454, and section 1295(a), a claim of legal mal- (A) An examination of patent quality at sought if compensation is not paid or the in- practice that necessarily raises a disputed the Office. fringement issue is not otherwise resolved; question of patent law shall be deemed to (B) An examination of ways to improve (B) the assertions contained in the commu- arise under an Act of Congress relating to quality, specifically through technology, nications lack a reasonable basis in fact or patents.’’. that shall include examining best practices law, including, for example, because— SEC. 8. REPORTS. at foreign patent offices and the use of exist- (i) the person asserting the patent is not a (a) STUDY ON SECONDARY MARKET OVER- ing off-the-shelf technologies to improve pat- person, or does not represent a person, with SIGHT FOR PATENT TRANSACTIONS TO PRO- ent examination. the current right to license the patent to, or MOTE TRANSPARENCY AND ETHICAL BUSINESS (C) A description of how patents are classi- to enforce the patent against, the intended PRACTICES.— fied. recipients or any such affiliated persons; or (1) STUDY REQUIRED.—The Director, in con- (D) An examination of procedures in place (ii) the communications seek compensa- sultation with the Secretary of Commerce, to prevent double patenting through filing tion on account of activities undertaken the Secretary of the Treasury, the Chairman by applicants in multiple art areas. after the patent has expired; or of the Securities and Exchange Commission, (E) An examination of the types of off-the- (C) the content of the written communica- the heads of other relevant agencies, and in- shelf prior art databases and search software tions is likely to materially mislead a rea- terested parties, shall, using existing re- used by foreign patent offices and govern- sonable recipient, including, for example, be- sources of the Office, conduct a study— ments, particularly in Europe and Asia, and cause the content fails to include such facts (A) to develop legislative recommendations whether those databases and search tools reasonably necessary to inform the recipient to ensure greater transparency and account- could be used by the Office to improve patent of— ability in patent transactions occurring on examination. (i) the identity of the person asserting a the secondary market; (F) An examination of any other areas the right to license the patent to, or enforce the (B) to examine the economic impact that Comptroller General determines to be rel- patent against, the intended recipient or any the patent secondary market has on the evant. affiliated person of the recipient; United States; (3) REPORT TO CONGRESS.—Not later than 6 (ii) the patent issued by the United States (C) to examine licensing and other over- months after the date of the completion of Patent and Trademark Office alleged to have sight requirements that may be placed on the study required by subsection (b)(1), the been infringed; and

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00040 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.036 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7549 (iii) the reasons for the assertion that the about abusive patent litigation. And This substitute enables patent trolls patent may be or may have been infringed. Members on both sides of the aisle, and to create an elaborate web of shell (2) REPORT TO CONGRESS.—Not later than 18 a broad range of patent stakeholders, companies that can engage in frivolous months after the date of the enactment of are strongly opposed to H.R. 3309 be- litigation, allowing the patent trolls to this Act, the Intellectual Property Enforce- ment Coordinator shall submit to the Com- cause of its many deficiencies and un- hide behind them. mittee on the Judiciary of the House of Rep- intended consequences. This substitute would allow a patent resentatives and the Committee on the Judi- So rather than promoting innovation troll to engage in abusive and extor- ciary of the Senate a report on the study and job growth, we fear that the under- tionate patent litigation without any conducted under paragraph (1), including rec- lying bill will have just the opposite ef- accountability for the costs imposed on ommendations for any changes to laws and fect. Our amendment corrects many of defendants. regulations that will deter any abuses found the bill’s deficiencies in a responsive 1200 in the practice described in paragraph (1). and measured approach without b SEC. 9. EFFECTIVE DATE. unbalancing the entire patent system. This substitute would allow trolls to Except as otherwise provided in this Act, I implore my colleagues very strong- engage in submarine patenting by de- the provisions of this Act shall take effect on ly to support this amendment. laying prosecution and unreasonably the date of the enactment of this Act, and I reserve the balance of my time. extending patent terms far beyond the shall apply to any patent issued, or any ac- Mr. GOODLATTE. Mr. Chairman, I tion filed, on or after that date. 20-year term. This substitute would rise in opposition to the amendment force U.S. courts to follow foreign law The Acting CHAIR. Pursuant to and seek the time in opposition. and terminate IP licenses for U.S. man- House Resolution 429, the gentleman The Acting CHAIR. The gentleman ufacturers. This substitute would also from Michigan (Mr. CONYERS) and a from Virginia is recognized for 10 min- encourage courts to delay case disposi- Member opposed each will control 10 utes. tive motions and prolong litigation. minutes. Mr. GOODLATTE. Mr. Chairman, I This substitute also allows the The Chair recognizes the gentleman must strongly oppose this substitute from Michigan. issuance of low-quality patents by per- amendment. It is quite simply a poison mitting them to issue without review Mr. CONYERS. Mr. Chairman, this bill that is designed to kill the Innova- substitute amendment is entitled the by technically trained patent exam- tion Act. Although the substitute cuts iners. This substitute amendment is a Conyers-Watt amendment, and I am and pastes a few provisions from the very pleased to bring it to the atten- poison pill that will kill any chance at current bill, it includes additional pro- meaningful patent reform in this Con- tion of our colleagues at this time. visions that create serious problems I am offering this substitute amend- gress. and excludes whole sections of the In- By contrast, the Innovation Act ment because it will give the Members novation Act that are vital for Amer- an opportunity to vote for language helps to address the issues that busi- ica’s job creators and innovators. nesses of all sizes and industries face that will actually address the identifi- This substitute does not even include from patent troll-type behavior and able abuses in the patent system. all of the provisions of the Leahy-Lee aims to correct the current These abuses include the inability to bill. It omits provisions that are impor- asymmetries surrounding abusive pat- identify the real party in interest and tant to our Senate colleagues. ent litigation. Our bill keeps in mind filing abusive lawsuits against end The amendment’s transparency pro- several key principles. users instead of manufacturers of prod- vision would require a patent owner to First, we are targeting abusive pat- uct. These issues are addressed in a ‘‘disclose to the court and all adverse ent litigation behavior and not specific measured and balanced way in this sub- parties any person known by the pat- entities or attempting to eliminate stitute. entee to have a financial interest of valid patent litigation. When we use Unlike the reported bill, which any kind in a party to the proceeding.’’ makes one-sided changes in fee-shift- The bill then defines financial inter- the term ‘‘patent troll,’’ it is as an ad- ing, discovery, and pleading require- est in the context of the judicial jective describing behavior rather than ments in all patent cases, not just recusal provision in the law. Under this as a noun. Our goal is to prevent indi- cases involving trolls, my, our amend- definition, ‘‘financial interest’’ means viduals from taking advantage of gaps ment, directly responds to the real ‘‘ownership of a legal or equitable in- in the system to engage in litigation problems without undermining the pat- terest however small.’’ This would extortion. ent or legal system as a whole. That is clearly appear to include ownership of Second, our bill does not diminish or what the thrust of our arguments have a single share of stock in a company. devalue patent rights. The patent sys- been throughout this debate. Moreover, this disclosure is required tem is integral to U.S. competitive- Our amendment builds in large part not just to be made with respect to the ness, and we have ensured that our leg- on a patent reform bill introduced on patentee but, by the terms of the bill, islation strengthens the overall patent the Senate side by Chairman LEAHY with respect to ‘‘a party to the pro- system, aligns with our international and which even the present administra- ceeding.’’ This would mean that a pat- treaty obligations, and comports with tion and other stakeholders strongly entee would have to disclose all known the Constitution. support. The amendment does the fol- shareholders of even the defendant or Third, this bill strikes the right bal- lowing: any other party in the lawsuit. This is ance of pushing for robust legal reform It promotes transparency of patent obviously an absurd requirement. I as- measures while protecting property ownership by using a well-established sume that the sponsors did not intend rights, promoting invention by inde- standard utilized by many Federal to require this, but this is what their pendent inventors and small busi- courts to require plaintiffs to disclose language requires. Clearly, the sub- nesses, and strengthening the overall entities with an interest in the patent; stitute needs more work. patent system. It protects customers who are tar- Indeed, the substitute’s cosponsors Supporters of this bill understand geted in infringement suits by pro- have, themselves, admitted that the that if America’s inventors are forced viding an option to stay the case substitute needs more work and could to waste time with frivolous litigation, against them while the manufacturer have serious, unintended consequences. they won’t have time for innovation. litigates the alleged infringement; This substitute’s changes to the bill’s We can no longer allow our economy It directs the USPTO to develop edu- pleading requirements would also allow and job creators to be held hostage to cational resources for small businesses patent trolls to hide their identity, de- legal maneuvers and the judicial lot- that are targeted in patent suits; nying defendants the right to know tery. It helps innovators by ensuring that who is suing them. American inventors have led the applicants do not abuse the patent sys- This substitute denies the defendant world for centuries in new innovations, tem by simply filing variations on the right to know what they are being from Benjamin Franklin and Thomas their patents to extend the length of sued on in the first place. Edison to the Wright brothers and the patent term. This substitute also denies the de- Henry Ford. But if we want to continue Our amendment addresses the major fendant the right to know why they are as leaders in the global economy, we concerns expressed by key stakeholders being dragged into Federal court. must encourage the innovators of

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00041 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.036 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7550 CONGRESSIONAL RECORD — HOUSE December 5, 2013 today to develop the technologies of to- Mr. NADLER. Mr. Chairman, I thank erally, but we have created dozens of morrow. the gentleman for yielding. times instances where the losing party This bill holds true to the Constitu- I rise to support the Conyers-Watt can pay—let me just read the language: tion, our Founders, and our promise to substitute. Unlike the underlying bill, The courts will shift the costs and fees to future generations that America will the substitute takes effective steps to a non-prevailing party unless the party’s po- continue to lead the world as a foun- address the patent troll problem with- sition is reasonably justified in fact or law or tain for discovery, innovation, and eco- out including the unnecessary endan- the fee award would cause economic harm. nomic growth. gered so-called ‘‘tort reform’’ provi- The discretion is still with the judi- I stand in strong opposition to this sions. cial officer to avoid harm. substitute, and I urge my colleagues to The substitute, like the bill, includes In terms of what should be in the support the underlying bill. Oppose the provisions providing customer stay ex- bill, I mentioned at the outset that I substitute. ceptions, raising awareness in the don’t believe this bill is perfect. If it I reserve the balance of my time. small business community as to their were up to me, the bill would also ex- Mr. CONYERS. Mr. Chair, I am rights when confronted with patent empt PTO user-fees from sequestra- pleased to yield 2 minutes to the gen- trolls, and increasing transparency of tion; it would clarify the scope of prior tleman from North Carolina (Mr. patents in the companies that own art and the grace period; it would allow WATT), the cosponsor of this substitute them. the PTO to continue using its BRI amendment. The substitute takes additional steps standard in post-grant and inter partes Mr. WATT. Mr. Chairman, I rise in to address the problem. It includes a review. I hope that the Senate will ad- support of the Conyers-Watt substitute study of how to address bad-faith de- dress those issues. Certainly, the because the substitute is a superior al- mand letters, which are scaring retail- amendment by Mr. WATT and Mr. CON- ternative. ers and others into settling claims YERS does not. It pains me when I have to disagree The short title of our substitute is based on convenience as opposed to with my ranking member, who I ad- appropriately titled ‘‘The Deceptive merit. Patent Practices Reduction Act’’ be- And very importantly, the substitute mire so very much, but I do disagree with this amendment. I think it will cause it narrowly and specifically fo- does not include the loser-pays provi- absolutely gut the bill. I intend to vote cuses on areas within our patent sys- sions of the underlying bill. Loser-pays against it, and I hope that others join tem where abuses can be curtailed laws have a chilling effect on justice. without imposing onerous and dis- me. They would deter legitimate patent Mr. CONYERS. Mr. Chairman, I yield proportionate burdens on good-faith owners with meritorious claims from 11⁄2 minutes to the gentleman from participants in the system; and in a pursuing justice. Georgia (Mr. JOHNSON). number of cases, I believe the sub- In this country, the general rule is Mr. JOHNSON of Georgia. Mr. Chair- stitute will create efficiencies that will that each side in a legal proceeding man, I rise in support of the Conyers- benefit all patent stakeholders. pays its own attorney fees and costs. Watt substitute amendment. Our substitute has three core provi- Most of the statutory exceptions that I must say that this has been a very sions. First, we require patent holders Congress has enacted have been geared spirited debate here today, but I would who sue on a patent to provide trans- towards encouraging private litigation be remiss not to come back to speak on parency of ownership and other finan- to implement good public policy. the issue of an inventor such as Danny cial interests in the patent. This will Awards of attorneys’ fees are often Ross, a venture capitalist and an exam- expose those who seek to shield the designed to help to equalize disputes ple of the type of person that this bill true identity of the real party with the between private individual plaintiffs should protect. primary interests in asserting an in- and corporate or government defend- Danny cofounded a tech company fringement claim. ants. Thus, attorneys’ fees provisions down in Atlanta that employed more Second, our substitute reduces the are most often found in civil rights, en- than 100 people and reached more than burden on retailers, hotels, res- vironmental protection, and consumer half the Internet audience at its peak. taurants, and mom-and-pop shops that protection statutes. He owns several patents based on great find themselves entangled in legal bat- The provision in this bill differs from inventions and has got a start-up. He tles simply for using a product to make other congressional exceptions in that had the Patent Office review and af- their businesses more attractive to it would require anyone who loses a firm these patents. But not only were their customers. I believe our customer patent claim to pay the attorneys’ fees these strong patents, they were also stay provides a better baseline than of even large corporate defendants. sought after by several companies. the provision in the underlying bill, This is a giant deterrent to genuine in- Rather than pay Danny for his innova- but I also recognize that it too requires ventors from filing good-faith suits to tion and hard work, these companies further work. defend their valid patent claims. refused to license his patent. This prac- Finally, I believe the study required Therefore, I urge the adoption of the tice is common for large companies under our substitute sets forth a clear- Conyers-Watt substitute which would that would rather bully someone in er, more precise definition of demand drop the loser-pays provisions from the court than license their patents. letters that will avoid intrusions into underlying bill while still including the We are an innovation economy. The legitimate business negotiations. key reforms that are present in the un- drive to create and tinker is what mo- Perhaps more important is what the derlying bill and in the Senate bill tivates Americans to innovate. Those substitute does not do, namely, it does drafted by Senator LEAHY. innovations should be rewarded, and not disregard judicial independence in I urge adoption of the substitute. those innovators should be rewarded the courtroom or judicial prerogatives Mr. GOODLATTE. Mr. Chairman, I for their labor and contribution to so- outside the courtroom to study, de- am pleased to yield 2 minutes to the ciety. That is the whole point of the velop, and promulgate rules of proce- gentlewoman from California (Ms. LOF- patent system; but if this bill becomes dure to govern trials and appeals in the GREN), who has been a great person to law, patent owners and inventors will courtroom. Our substitute also does work with on the Judiciary Committee be unable to enforce their patents not act with utter indifference to the and here on the floor of the House on without risking personal bankruptcy. collateral damage levied upon legiti- this legislation. I have long supported reform and am mate inventors and businesses that Ms. LOFGREN. Mr. Chairman, I ap- a friend of the innovation economy, this bill will do. preciate the time. but today I call on my colleagues to Mr. GOODLATTE. Mr. Chairman, I Earlier in the debate, I jumped ahead support this amendment. reserve the balance of my time. of myself and addressed the issue of Mr. GOODLATTE. Mr. Chairman, I Mr. CONYERS. Mr. Chairman, I am pleadings and discovery costs during yield 1 minute to the gentleman from now pleased to yield 2 minutes to the the Watt amendment about fee shift- Pennsylvania (Mr. MARINO), the vice gentleman from New York (Mr. NAD- ing. So I will focus on fee shifting now. chairman of the Courts, Intellectual LER), a senior member of the com- The provision in the bill is absolutely Property and the Internet Sub- mittee. right on. I oppose the English rule gen- committee.

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00042 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.045 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7551 Mr. MARINO. Mr. Chairman, I oppose Some of the groups opposing, or concerned the gentleman from Michigan will be this substitute, and I will explain why with, the Innovation Act: Association of postponed. American Universities; American Council on I support the Goodlatte bill, H.R. 3309. ANNOUNCEMENT BY THE ACTING CHAIR Education; Association of American Medical This bill has been methodically The Acting CHAIR. Pursuant to drafted with abundant openness and Colleges; Association of Public and Land- grant Universities; Association of University clause 6 of rule XVIII, proceedings will clarity. Among other parts of this bill, Technology Managers; California Healthcare now resume on those amendments and there are many, two are extremely Institute; Council on Government Relations; printed in part A of House Report 113– important that I see. One is that it pro- Eagle Forum; Club for Growth; American 283 on which further proceedings were tects small business owners, entre- Bar Association (ABA); Patent Office Profes- postponed, in the following order: preneurs, young men and women who sional Association; Judicial Conference, Amendment No. 1 by Mr. GOODLATTE Committee on Rules of Practice and Proce- could lose their business or could lose of Virginia. their idea, young men and women that dure; American Intellectual Property Asso- ciation (AIPLA); Intellectual Property Own- Amendment No. 2 by Mr. WATT of may even be visiting the Capitol today. North Carolina. I want to explain what a troll does. A ers Association IPO); National Association of Patent Practitioners (NAPP); University of Amendment No. 4 by Mr. MASSIE of troll doesn’t primarily go after larger California; National Venture Capital Asso- Kentucky. companies. They go after upstarts, ciation; Innovation Alliance; Coalition for they go after young people who are Amendment No. 5 by Ms. JACKSON 21st Century Patent Reform; Institute of LEE of Texas. starting to make a profit after years of Electrical and Electronics Engineers (IEEE). Amendment No. 7 by Mr. ROHR- work. They send them a letter and say, Some concerns with the Innovation Act: Pay me X amount of dollars, $10,000, creates more paperwork when an inventor ABACHER of California. $20,000, $50,000, and I won’t sue you. If I files an infringement claim, increasing the Amendment No. 8 by Mr. CONYERS of do sue you, we will go to court and you costs to defend their rights; forces a patent Michigan. will probably go bankrupt because it is holder who files a claim of infringement to The Chair will reduce to 2 minutes maintain a new bureaucratic reporting re- going to cost you that much. They are the minimum time for any electronic quirement; and to pay new recordkeeping vote after the first vote in this series. suing people based on using a phone, a fees; eliminates the independent judicial re- AMENDMENT NO. 1 OFFERED BY MR. GOODLATTE scanner, and a copier which they pur- view of patent applicants by striking Section chased. They have no interest in the 145 of Title 35. This is very important in The Acting CHAIR. The unfinished software; yet they are being sued for order to keep the patent office honest. Strik- business is the demand for a recorded that. ing this provision will leave the inventor vote on the amendment offered by the This is good law. We have to get over with no independent recourse outside of the gentleman from Virginia (Mr. GOOD- the fact that the trolls are really tak- patent office. Dramatically increases the po- LATTE) on which further proceedings ing advantage here. It is really going tential financial risks for filing an infringe- were postponed and on which the noes to cut the cost of litigation and get ment lawsuit. prevailed by voice vote. owners to the court on time. b 1215 The Clerk will redesignate the Mr. CONYERS. Mr. Chairman, I am Mr. GOODLATTE. Mr. Chairman, I amendment. pleased to yield the balance of my time yield myself the balance of my time. The Clerk redesignated the amend- to the distinguished gentleman from Yes, there is some problem with pat- ment. California (Mr. ROHRABACHER). ent trolls, tens of billions of dollars a RECORDED VOTE Mr. ROHRABACHER. Mr. Chairman, year in problems with patent trolls. The Acting CHAIR. A recorded vote we keep hearing about the trolls; and, Fifty-five percent of all the demand has been demanded. yes, there is some problem with the letters that are sent by these patent A recorded vote was ordered. trolls, and sometimes it hurts middle trolls go to small businesses. The vote was taken by electronic de- class people. But we can solve that There are serious problems that re- vice, and there were—ayes 341, noes 73, problem without destroying the rights quire real patent litigation reform, and not voting 17, as follows: of our American independent inven- I am proud that this bipartisan bill, tors, and they are pleading with us, in- [Roll No. 623] supported by many Members on both terest groups around the country are AYES—341 sides of the aisle, supported by the ad- pleading with us not to go so fast. Aderholt Carter Doggett I support the Conyers substitute, but ministration, and supported by hun- Amash Cassidy Duckworth I rise in opposition to this bill. Among dreds of organizations that are listed Amodei Castro (TX) Duffy right here—come by the desk and you Bachmann Chabot Duncan (SC) those opposing or having expressed se- Bachus Chaffetz Duncan (TN) rious concern about this Innovation can see the huge list of organizations, Barber Chu Ellmers Act are the Association of American conservatives, all across the political Barletta Clarke Engel Barr Clay Enyart Universities, American Council on Edu- spectrum support this legislation. American inventors have led the Barrow (GA) Cleaver Eshoo cation, Association of American Med- Barton Clyburn Esty ical Colleges, Eagle Forum, Club for world for centuries. This bill holds true Bass Coble Farenthold Growth, the American Bar Association, to the Constitution, our Founders, and Beatty Coffman Farr our promise to future generations that Benishek Cohen Fattah the Patent Office Professional Associa- Bentivolio Cole Fincher tion, the American Intellectual Prop- America will continue to lead the Bera (CA) Collins (GA) Fitzpatrick erty Association, the National Associa- world as a fountain for discovery, inno- Bilirakis Collins (NY) Fleischmann Bishop (UT) Conaway Fleming tion for Patent Practitioners, the Judi- vation, economic growth, and job cre- ation. Black Connolly Flores cial Conference committee on rules and Blackburn Cook Forbes practices and procedures. Our judges I stand in strong opposition to this Blumenauer Cooper Fortenberry are absolutely opposed to this, and yet substitute amendment, and I urge my Bonamici Costa Foster colleagues to vote for the underlying Boustany Cotton Foxx we have this idea that we will just take Brady (PA) Courtney Franks (AZ) away the rights of the little guy to bill. Brady (TX) Cramer Frelinghuysen have his day in court, that it doesn’t Mr. Chairman, I yield back the bal- Bridenstine Crenshaw Gabbard Brooks (AL) Crowley Gallego make any difference. That is not what ance of my time. The Acting CHAIR. The question is Brooks (IN) Cuellar Garamendi our judges say. Broun (GA) Daines Garcia Mr. Chairman, I submit this list to be on the amendment offered by the gen- Brown (FL) Davis, Rodney Gardner placed in the RECORD. tleman from Michigan (Mr. CONYERS). Brownley (CA) DeFazio Garrett The question was taken; and the Act- Buchanan DeGette Gerlach Please, let’s not rush into a move Bucshon Delaney Gibbs that will destroy our independent in- ing Chair announced that the noes ap- Burgess DelBene Gibson ventors and our innovators in America. peared to have it. Bustos Denham Gohmert Calvert Dent Goodlatte DON’T BLOW UP THE BRIDGE TO INNOVATION Mr. CONYERS. Mr. Chairman, I de- mand a recorded vote. Camp DeSantis Gosar TO KILL THE ‘‘PATENT TROLL’’ Cantor DesJarlais Gowdy Oppose HR 3309, the Innovation Act, which The Acting CHAIR. Pursuant to Capito Deutch Granger will have numerous unintended con- clause 6 of rule XVIII, further pro- Capps Diaz-Balart Graves (GA) sequences. ceedings on the amendment offered by Ca´ rdenas Dingell Graves (MO)

VerDate Mar 15 2010 02:40 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00043 Fmt 0636 Sfmt 0634 E:\CR\FM\K05DE7.046 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7552 CONGRESSIONAL RECORD — HOUSE December 5, 2013 Green, Al Marchant Ruiz Tierney Vela Wilson (FL) Nadler Ruiz Takano Green, Gene Marino Runyan Tsongas Visclosky Yarmuth Napolitano Ruppersberger Terry Griffin (AR) Matheson Ruppersberger Vargas Waters Neal Ryan (OH) Thompson (MS) Griffith (VA) Matsui Ryan (WI) Negrete McLeod NOT VOTING—17 Salmon Tierney Grimm McAllister Salmon O’Rourke Sa´ nchez, Linda Titus Guthrie McCarthy (CA) Sa´ nchez, Linda Bishop (GA) Herrera Beutler Miller, Gary Owens T. Tonko Gutie´rrez McCaul T. Campbell Joyce Nolan Pallone Sanchez, Loretta Tsongas Hahn McClintock Sanford Crawford McCarthy (NY) Radel Pascrell Sarbanes Valadao Hall McCollum Scalise Culberson McHenry Reed Pastor (AZ) Schakowsky Van Hollen Hanabusa McDermott Schiff Doyle McMorris Rush Pelosi Schiff Vargas Hanna McGovern Schneider Gingrey (GA) Rodgers Sires Perlmutter Schneider Veasey Harper McIntyre Schock Peters (CA) Schrader Vela Harris McKeon Schrader Peters (MI) Schwartz Vela´ zquez Hartzler McKinley Schwartz b 1241 Petri Scott (VA) Hastings (WA) Meadows Schweikert Visclosky Mr. JEFFRIES, Ms. WASSERMAN Pingree (ME) Heck (NV) Meehan Scott (VA) Scott, David Wagner Heck (WA) Meeks Scott, Austin SCHULTZ, Messrs. REICHERT, BERA Pocan Serrano Walz Hensarling Meng Sensenbrenner of California, HALL, ROKITA, GOSAR, Posey Sewell (AL) Wasserman Higgins Messer Serrano HIGGINS, MEEKS, and AL GREEN of Quigley Shea-Porter Schultz Himes Mica Sessions Rahall Sherman Waters Hinojosa Michaud Sherman Texas changed their vote from ‘‘no’’ to Rangel Sinema Watt Holding Miller (FL) Shimkus ‘‘aye.’’ Richmond Slaughter Waxman Honda Miller (MI) Shuster So the amendment was agreed to. Rigell Smith (WA) Welch Horsford Moran Simpson The result of the vote was announced Rohrabacher Speier Wilson (FL) Hoyer Mullin Sinema Ross Stockman Yarmuth Hudson Mulvaney Smith (MO) as above recorded. Roybal-Allard Swalwell (CA) Yoho Huelskamp Murphy (FL) Smith (NE) AMENDMENT NO. 2 OFFERED BY MR. WATT Huffman Murphy (PA) Smith (NJ) NOES—213 Huizenga (MI) Nadler Smith (TX) The Acting CHAIR. The unfinished Hultgren Neugebauer Smith (WA) business is the demand for a recorded Aderholt Graves (GA) Olson Hunter Noem Southerland Amodei Graves (MO) Palazzo vote on the amendment offered by the Bachmann Griffin (AR) Paulsen Hurt Nugent Stewart gentleman from North Carolina (Mr. Israel Nunes Stivers Bachus Grimm Payne Issa Nunnelee Stutzman WATT) on which further proceedings Barletta Guthrie Pearce Jeffries O’Rourke Swalwell (CA) were postponed and on which the noes Barr Hall Perry Barton Hanna Peterson Jenkins Olson Takano prevailed by voice vote. Johnson (OH) Owens Terry Benishek Harper Pittenger Johnson, Sam Palazzo Thompson (CA) The Clerk will redesignate the Bentivolio Harris Pitts Jordan Pallone Thompson (PA) amendment. Bilirakis Hartzler Poe (TX) Kelly (IL) Pascrell Thornberry Bishop (UT) Hastings (WA) Polis The Clerk redesignated the amend- Black Heck (NV) Pompeo Kelly (PA) Pastor (AZ) Tiberi ment. Kildee Paulsen Tipton Blackburn Hensarling Price (GA) Kilmer Pearce Titus RECORDED VOTE Blumenauer Holding Price (NC) Boustany Honda Reichert Kind Perlmutter Tonko The Acting CHAIR. A recorded vote King (IA) Perry Turner Brady (TX) Hudson Renacci King (NY) Peters (MI) Upton has been demanded. Brooks (AL) Huizenga (MI) Ribble Kingston Peterson Valadao A recorded vote was ordered. Brooks (IN) Hultgren Rice (SC) Kinzinger (IL) Petri Van Hollen Buchanan Hunter Roby The Acting CHAIR. This will be a 2- Bucshon Hurt Roe (TN) Kirkpatrick Pittenger Veasey minute vote. Kline Pitts Vela´ zquez Burgess Issa Rogers (AL) Kuster Poe (TX) Wagner The vote was taken by electronic de- Calvert Jenkins Rogers (KY) Labrador Polis Walberg vice, and there were—ayes 199, noes 213, Camp Johnson (OH) Rogers (MI) Cantor Johnson, Sam Rokita LaMalfa Pompeo Walden not voting 19, as follows: Lamborn Price (GA) Walorski Capito Jordan Rooney ´ Lance Price (NC) Walz [Roll No. 624] Cardenas Joyce Ros-Lehtinen Carter Kelly (PA) Roskam Lankford Quigley Wasserman AYES—199 Larsen (WA) Rahall Schultz Cassidy King (IA) Rothfus Larson (CT) Reichert Watt Amash DeLauro Johnson (GA) Chabot King (NY) Royce Latham Renacci Waxman Andrews DelBene Johnson, E. B. Chaffetz Kingston Runyan Latta Ribble Weber (TX) Barber Deutch Jones Coble Kinzinger (IL) Ryan (WI) Lee (CA) Rice (SC) Webster (FL) Barrow (GA) Dingell Kaptur Coffman Kline Sanford Levin Rigell Welch Bass Doggett Keating Cole Labrador Scalise Lipinski Roby Wenstrup Beatty Duckworth Kelly (IL) Collins (GA) LaMalfa Schock LoBiondo Roe (TN) Westmoreland Becerra Edwards Kennedy Collins (NY) Lamborn Schweikert Lofgren Rogers (AL) Whitfield Bera (CA) Ellison Kildee Conaway Lankford Scott, Austin Long Rogers (KY) Williams Bishop (NY) Engel Kilmer Cook Latham Sensenbrenner Lowey Rogers (MI) Wilson (SC) Bonamici Enyart Kind Costa Latta Sessions Lucas Rokita Wittman Brady (PA) Esty Kirkpatrick Crenshaw LoBiondo Shimkus Luetkemeyer Rooney Wolf Braley (IA) Farr Kuster Cuellar Lofgren Shuster Luja´ n, Ben Ray Ros-Lehtinen Womack Bridenstine Fattah Lance Daines Long Simpson (NM) Roskam Woodall Broun (GA) Fitzpatrick Langevin Davis, Rodney Lucas Smith (NE) Maffei Ross Yoder Brown (FL) Foster Larsen (WA) DeFazio Luetkemeyer Smith (NJ) Maloney, Rothfus Yoho Brownley (CA) Frankel (FL) Larson (CT) Denham Lummis Smith (TX) Carolyn Roybal-Allard Young (AK) Bustos Fudge Lee (CA) Dent Maffei Southerland Maloney, Sean Royce Young (IN) Butterfield Gabbard Levin DeSantis Marchant Stewart Capps Gallego Lewis DesJarlais Marino Stivers NOES—73 Capuano Garamendi Lipinski Diaz-Balart Matheson Thompson (CA) Carney Garcia Loebsack Duffy McAllister Thompson (PA) Andrews Hastings (FL) Neal Carson (IN) Gibson Lowenthal Duncan (SC) McCarthy (CA) Thornberry Becerra Holt Negrete McLeod Cartwright Gosar Lowey Duncan (TN) McCaul Tiberi Bishop (NY) Jackson Lee Payne Castor (FL) Grayson Lujan Grisham Ellmers McClintock Tipton Braley (IA) Johnson (GA) Pelosi Castro (TX) Green, Al (NM) Eshoo McCollum Turner Butterfield Johnson, E. B. Peters (CA) Chu Green, Gene Luja´ n, Ben Ray Farenthold McHenry Upton Capuano Jones Pingree (ME) Cicilline Griffith (VA) (NM) Fincher McIntyre Walberg Carney Kaptur Pocan Clarke Grijalva Lynch Fleischmann McKeon Walden Carson (IN) Keating Posey Cleaver Hahn Maloney, Fleming McKinley Walorski Cartwright Kennedy Rangel Clyburn Hanabusa Carolyn Flores Meadows Weber (TX) Castor (FL) Langevin Richmond Cohen Hastings (FL) Maloney, Sean Forbes Meehan Webster (FL) Cicilline Lewis Rohrabacher Connolly Heck (WA) Massie Fortenberry Messer Wenstrup Conyers Loebsack Ryan (OH) Conyers Higgins Matsui Foxx Mica Westmoreland Cummings Lowenthal Sanchez, Loretta Cooper Himes McDermott Franks (AZ) Miller (FL) Whitfield Davis (CA) Lujan Grisham Sarbanes Cotton Hinojosa McGovern Frelinghuysen Miller, George Williams Davis, Danny (NM) Schakowsky Courtney Holt McNerney Gardner Mullin Wilson (SC) DeLauro Lummis Scott, David Cramer Horsford Meeks Garrett Mulvaney Wittman Edwards Lynch Sewell (AL) Crowley Hoyer Meng Gerlach Murphy (PA) Wolf Ellison Massie Shea-Porter Cummings Huelskamp Michaud Gibbs Neugebauer Womack Frankel (FL) McNerney Slaughter Davis (CA) Huffman Miller (MI) Gohmert Noem Woodall Fudge Miller, George Speier Davis, Danny Israel Moore Goodlatte Nugent Yoder Grayson Moore Stockman DeGette Jackson Lee Moran Gowdy Nunes Young (AK) Grijalva Napolitano Thompson (MS) Delaney Jeffries Murphy (FL) Granger Nunnelee Young (IN)

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00044 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.038 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7553 NOT VOTING—19 Benishek Guthrie O’Rourke NOT VOTING—16 Bera (CA) Hahn Olson Bishop (GA) Gutie´rrez Radel Bishop (GA) Gingrey (GA) Nolan Bilirakis Hall Owens Campbell Herrera Beutler Reed Campbell Herrera Beutler Radel Bishop (UT) Hanna Palazzo Clay McCarthy (NY) Rush Crawford McCarthy (NY) Reed Black Harper Pallone Crawford McMorris Sires Culberson McMorris Rush Blackburn Hartzler Pascrell Culberson Rodgers Smith (MO) Doyle Rodgers Sires Blumenauer Hastings (WA) Pastor (AZ) Doyle Miller, Gary Stutzman Gerlach Miller, Gary Gingrey (GA) Nolan Bonamici Heck (NV) Pearce Boustany Heck (WA) Pelosi ANNOUNCEMENT BY THE ACTING CHAIR ANNOUNCEMENT BY THE ACTING CHAIR Brady (TX) Hensarling Perry The Acting CHAIR (during the vote). Brooks (IN) Higgins The Acting CHAIR (during the vote). Peters (MI) There is 1 minute remaining. Brownley (CA) Himes Peterson There is 1 minute remaining. Buchanan Hinojosa Pittenger b 1250 Bucshon Holding Poe (TX) b 1246 Bustos Honda Polis Messrs. PALLONE, VEASEY, and Ms. Butterfield Horsford Pompeo GABBARD changed their vote from Mr. POE of Texas changed his vote Calvert Hoyer Price (GA) ‘‘aye’’ to ‘‘no.’’ from ‘‘aye’’ to ‘‘no.’’ Camp Hudson Price (NC) Cantor Huffman Quigley Ms. SPEIER changed her vote from So the amendment was rejected. Capito Huizenga (MI) The result of the vote was announced Rahall ‘‘no’’ to ‘‘aye.’’ Capps Hunter Reichert So the amendment was rejected. as above recorded. Ca´ rdenas Hurt Renacci Carney Israel The result of the vote was announced AMENDMENT NO. 4 OFFERED BY MR. MASSIE Ribble Carter Issa Rice (SC) as above recorded. The Acting CHAIR. The unfinished Cassidy Jeffries Rigell AMENDMENT NO. 5 OFFERED BY MS. JACKSON Castor (FL) Jenkins business is the demand for a recorded Roby LEE Castro (TX) Johnson (OH) vote on the amendment offered by the Roe (TN) The Acting CHAIR. The unfinished gentleman from Kentucky (Mr. Chabot Johnson, Sam Rogers (AL) Chaffetz Jordan Rogers (KY) business is the demand for a recorded MASSIE) on which further proceedings Chu Kelly (IL) Rogers (MI) vote on the amendment offered by the Clarke were postponed and on which the noes Kelly (PA) Rokita Clay gentlewoman from Texas (Ms. JACKSON prevailed by voice vote. Kennedy Ros-Lehtinen Clyburn Kildee LEE) on which further proceedings were Roskam The Clerk will redesignate the Coble Kilmer Rothfus postponed and on which the ayes pre- amendment. Coffman King (IA) Roybal-Allard vailed by voice vote. Cohen King (NY) The Clerk redesignated the amend- Royce Cole Kingston The Clerk will redesignate the ment. Ruiz Collins (GA) Kinzinger (IL) amendment. Runyan RECORDED VOTE Collins (NY) Kirkpatrick Ruppersberger The Clerk redesignated the amend- Conaway Kline The Acting CHAIR. A recorded vote Ryan (WI) ment. Connolly Kuster has been demanded. Scalise Cook Labrador RECORDED VOTE Schiff A recorded vote was ordered. Cooper LaMalfa Schneider The Acting CHAIR. A recorded vote The Acting CHAIR. This will be a 2- Costa Lankford Schock has been demanded. minute vote. Courtney Larsen (WA) Schrader A recorded vote was ordered. The vote was taken by electronic de- Crenshaw Larson (CT) Crowley Latham Schwartz The Acting CHAIR. This will be a 2- vice, and there were—ayes 119, noes 296, Scott, Austin Cuellar Latta minute vote. not voting 16, as follows: Cummings Levin Sensenbrenner Sessions The vote was taken by electronic de- [Roll No. 625] Daines Lewis DeFazio Lipinski Sewell (AL) vice, and there were—ayes 144, noes 266, AYES—119 DeGette LoBiondo Sherman not voting 21, as follows: Shimkus Amash Hanabusa Rangel Delaney Lofgren [Roll No. 626] Andrews Harris Richmond DelBene Long Shuster Bachmann Hastings (FL) Rohrabacher DeSantis Lowey Simpson AYES—144 Sinema Barton Holt Rooney DesJarlais Lucas Andrews Fattah Matsui Smith (MO) Beatty Huelskamp Ross Deutch Luetkemeyer Barrow (GA) Foster McGovern Smith (NJ) Bentivolio Hultgren Ryan (OH) Diaz-Balart Luja´ n, Ben Ray Bass Frankel (FL) McIntyre Smith (TX) Bishop (NY) Jackson Lee Salmon Dingell (NM) Beatty Fudge McNerney Smith (WA) Brady (PA) Johnson (GA) Sa´ nchez, Linda Doggett Lynch Becerra Gabbard Meeks Southerland Braley (IA) Johnson, E. B. T. Duckworth Maffei Bishop (NY) Garamendi Moore Bridenstine Jones Stewart Sanchez, Loretta Duffy Maloney, Bonamici Garcia Murphy (FL) Brooks (AL) Joyce Stivers Sanford Duncan (SC) Carolyn Brady (PA) Gosar Napolitano Broun (GA) Kaptur Swalwell (CA) Braley (IA) Grayson Sarbanes Edwards Maloney, Sean Neal Brown (FL) Keating Takano Broun (GA) Green, Al Negrete McLeod Schakowsky Ellison Marino Burgess Kind Matheson Terry Brown (FL) Green, Gene O’Rourke Schweikert Ellmers Capuano Lamborn Enyart McAllister Thompson (CA) Brownley (CA) Grijalva Owens Scott (VA) Carson (IN) Lance Eshoo McCarthy (CA) Thompson (PA) Bustos Hahn Pallone Scott, David Cartwright Langevin Esty McCaul Thornberry Butterfield Hanabusa Pascrell Serrano Cicilline Lee (CA) Farenthold McClintock Tiberi Capps Hastings (FL) Payne Shea-Porter Cleaver Loebsack Farr McCollum Tipton Capuano Heck (WA) Perlmutter Conyers Lowenthal Slaughter Fincher McGovern Titus Carney Himes Peters (CA) Cotton Lujan Grisham Smith (NE) Fitzpatrick McHenry Turner Carson (IN) Holt Peters (MI) Cramer (NM) Speier Fleischmann McIntyre Upton Cartwright Horsford Pingree (ME) Davis (CA) Lummis Stockman Fleming McKeon Van Hollen Castor (FL) Hoyer Pocan Davis, Danny Marchant Cicilline Huelskamp Stutzman Flores McKinley Veasey Poe (TX) Davis, Rodney Massie Clarke Jackson Lee Quigley Thompson (MS) Forbes Meadows Vela´ zquez DeLauro Matsui Clay Jeffries Rahall Tierney Fortenberry Meehan Wagner Denham McDermott Cleaver Johnson (GA) Rangel Tonko Foster Meeks Walberg Dent McNerney Clyburn Johnson, E. B. Richmond Tsongas Foxx Meng Walden Duncan (TN) Messer Conyers Jones Rohrabacher Valadao Franks (AZ) Mica Walorski Engel Mullin Cooper Kaptur Rothfus Vargas Michaud Fattah Mulvaney Frelinghuysen Walz Courtney Keating Roybal-Allard Vela Frankel (FL) Napolitano Gabbard Miller (FL) Wasserman Crowley Kelly (IL) Ruppersberger Visclosky Fudge Paulsen Gallego Miller (MI) Schultz Cuellar Kennedy Ryan (OH) Waters Garamendi Payne Garcia Miller, George Waxman Cummings Kilmer Salmon Garrett Perlmutter Watt Gardner Moore Webster (FL) Davis (CA) Kirkpatrick Sa´ nchez, Linda Gibson Peters (CA) Weber (TX) Gibbs Moran Welch Davis, Danny Langevin T. Gosar Petri Westmoreland Gohmert Murphy (FL) Wenstrup DeGette Larson (CT) Sanchez, Loretta Grayson Pingree (ME) Wilson (FL) Goodlatte Murphy (PA) Whitfield DeLauro Lee (CA) Sarbanes Green, Al Pitts Wolf Gowdy Nadler Williams Deutch Lewis Schakowsky Grijalva Pocan Yarmuth Granger Neal Wilson (SC) Duckworth Lipinski Schiff Gutie´rrez Posey Yoho Graves (GA) Negrete McLeod Wittman Duncan (TN) Loebsack Schweikert Graves (MO) Neugebauer Womack Edwards Lowenthal Scott (VA) NOES—296 Green, Gene Noem Woodall Ellison Lujan Grisham Scott, David Aderholt Barber Barrow (GA) Griffin (AR) Nugent Yoder Engel (NM) Serrano Amodei Barletta Bass Griffith (VA) Nunes Young (AK) Enyart Lynch Sewell (AL) Bachus Barr Becerra Grimm Nunnelee Young (IN) Esty Massie Shea-Porter

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00045 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.039 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7554 CONGRESSIONAL RECORD — HOUSE December 5, 2013 Slaughter Tsongas Visclosky NOT VOTING—21 LoBiondo Peters (CA) Sherman Speier Van Hollen Waters Loebsack Peters (MI) Sinema Amodei Herrera Beutler Reed Stockman Vargas Watt Lofgren Peterson Slaughter Bishop (GA) McCarthy (NY) Rokita Thompson (MS) Veasey Wilson (FL) Lowenthal Petri Smith (NJ) Campbell McMorris Rush Tierney Vela Yarmuth Lowey Pingree (ME) Smith (WA) Crawford Rodgers Sires Tonko Vela´ zquez Luetkemeyer Pocan Speier Culberson Messer Walz Lujan Grisham Polis Stivers Doyle Miller, Gary Woodall NOES—266 Gingrey (GA) Nolan (NM) Posey Stockman ´ Luja´ n, Ben Ray Price (NC) Stutzman Aderholt Grimm Pastor (AZ) Gutierrez Radel (NM) Quigley Takano Amash Guthrie Paulsen ANNOUNCEMENT BY THE ACTING CHAIR Lummis Rahall Terry Bachmann Hall Pearce Lynch Rangel Thompson (CA) Bachus Hanna Pelosi The Acting CHAIR (during the vote). Barber Harper Perry There is 1 minute remaining. Maloney, Richmond Thompson (MS) Barletta Harris Peterson Carolyn Roe (TN) Tiberi Barr Hartzler Petri b 1253 Maloney, Sean Rohrabacher Tierney Barton Hastings (WA) Pittenger Marchant Rokita Tonko Benishek Heck (NV) Pitts So the amendment was rejected. Massie Rooney Tsongas Bentivolio Hensarling Polis The result of the vote was announced Matsui Ross Turner McClintock Roybal-Allard Valadao Bera (CA) Higgins Pompeo as above recorded. Bilirakis Hinojosa Posey McCollum Royce Van Hollen Bishop (UT) Holding Price (GA) AMENDMENT NO. 7 OFFERED BY MR. McGovern Ruiz Vargas Black Honda Price (NC) ROHRABACHER McIntyre Ryan (OH) Veasey Blackburn Hudson Reichert The Acting CHAIR. The unfinished McNerney Ryan (WI) Vela Meeks Salmon Vela´ zquez Blumenauer Huffman Renacci business is the demand for a recorded Boustany Huizenga (MI) Ribble Meng Sa´ nchez, Linda Visclosky Brady (TX) Hultgren Rice (SC) vote on the amendment offered by the Messer T. Wagner Bridenstine Hunter Rigell gentleman from California (Mr. ROHR- Miller, George Sanchez, Loretta Walorski Brooks (AL) Hurt Roby ABACHER) on which further proceedings Moore Sanford Walz Brooks (IN) Israel Roe (TN) were postponed and on which the noes Nadler Sarbanes Waters Buchanan Issa Rogers (AL) Napolitano Schakowsky Watt Bucshon Jenkins Rogers (KY) prevailed by voice vote. Neal Schiff Waxman Burgess Johnson (OH) Rogers (MI) The Clerk will redesignate the Noem Schneider Weber (TX) Calvert Johnson, Sam Rooney amendment. Nugent Schock Webster (FL) Camp Jordan Ros-Lehtinen Nunes Schrader Welch Cantor Joyce The Clerk redesignated the amend- Roskam ment. Pallone Schwartz Wenstrup Capito Kelly (PA) Ross Pascrell Scott (VA) Westmoreland ´ Cardenas Kildee Royce RECORDED VOTE Pastor (AZ) Scott, David Whitfield Carter Kind Ruiz Paulsen Sensenbrenner Wilson (FL) Cassidy King (IA) The Acting CHAIR. A recorded vote Runyan has been demanded. Payne Serrano Wolf Castro (TX) King (NY) Ryan (WI) Pelosi Sewell (AL) Yarmuth Chabot Kingston Sanford A recorded vote was ordered. Perlmutter Shea-Porter Yoder Chaffetz Kinzinger (IL) Scalise The Acting CHAIR. This will be a 2- Chu Kline Schneider minute vote. NOES—156 Coble Kuster Schock Coffman Labrador Schrader The vote was taken by electronic de- Aderholt Hartzler Pearce Cohen LaMalfa Schwartz vice, and there were—ayes 260, noes 156, Amash Hastings (WA) Perry Cole Lamborn Scott, Austin not voting 15, as follows: Amodei Heck (NV) Pittenger Collins (GA) Lance Bachus Hensarling Pitts Sensenbrenner [Roll No. 627] Collins (NY) Lankford Sessions Barletta Hinojosa Poe (TX) Conaway Larsen (WA) Sherman AYES—260 Benishek Holding Pompeo Connolly Latham Shimkus Bilirakis Hudson Price (GA) Cook Latta Andrews Crowley Grijalva Bishop (UT) Huizenga (MI) Shuster Bachmann Cuellar Grimm Reichert Costa Levin Blackburn Hurt Simpson Barber Cummings Guthrie Renacci Cotton LoBiondo Boustany Issa Sinema Barr Davis (CA) Gutie´rrez Ribble Cramer Lofgren Brady (TX) Johnson (OH) Smith (MO) Barrow (GA) Davis, Danny Hahn Rice (SC) Crenshaw Long Bridenstine Johnson, Sam Smith (NE) Barton Davis, Rodney Hanabusa Rigell Daines Lowey Buchanan Jordan Smith (NJ) Bass DeGette Harper Roby Davis, Rodney Lucas Bucshon Kelly (PA) Smith (TX) Beatty Delaney Harris Rogers (AL) DeFazio Luetkemeyer Camp King (IA) Smith (WA) Becerra DeLauro Hastings (FL) Rogers (KY) Delaney Luja´ n, Ben Ray Cantor King (NY) Southerland Bentivolio DelBene Heck (WA) Rogers (MI) DelBene (NM) Carter Kingston Stewart Bera (CA) Denham Higgins Denham Lummis Cassidy Kline Ros-Lehtinen Stivers Bishop (NY) Dent Himes Dent Maffei Castro (TX) Labrador Roskam Stutzman Black DesJarlais Holt DeSantis Chabot Lamborn Rothfus Maloney, Blumenauer Dingell Honda Swalwell (CA) Chaffetz Lankford Runyan DesJarlais Carolyn Bonamici Duckworth Horsford Takano Coble Latham Ruppersberger Diaz-Balart Maloney, Sean Brady (PA) Duffy Hoyer Terry Coffman Latta Scalise Dingell Marchant Braley (IA) Duncan (SC) Huelskamp Thompson (CA) Schweikert Doggett Marino Brooks (AL) Duncan (TN) Huffman Cole Long Thompson (PA) Scott, Austin Duffy Matheson Brooks (IN) Edwards Hultgren Collins (GA) Lucas Duncan (SC) McAllister Thornberry Collins (NY) Maffei Sessions Tiberi Broun (GA) Engel Hunter Ellmers McCarthy (CA) Brown (FL) Enyart Israel Conaway Marino Shimkus Eshoo McCaul Tipton Connolly Matheson Shuster Titus Brownley (CA) Eshoo Jackson Lee Farenthold McClintock Burgess Esty Jeffries Cotton McAllister Simpson Farr McCollum Turner Crenshaw McCarthy (CA) Smith (MO) Upton Bustos Farr Jenkins Fincher McDermott Butterfield Fattah Johnson (GA) Daines McCaul Smith (NE) Valadao Fitzpatrick McHenry Calvert Fincher Johnson, E. B. DeFazio McDermott Smith (TX) Wagner Fleischmann McKeon Capito Fitzpatrick Jones DeSantis McHenry Southerland Walberg Fleming McKinley Capps Fleischmann Joyce Deutch McKeon Stewart Walden Flores Meadows Capuano Fortenberry Kaptur Diaz-Balart McKinley Swalwell (CA) Walorski Forbes Meehan Ca´ rdenas Foster Keating Doggett Meadows Thompson (PA) Wasserman Ellison Meehan Fortenberry Meng Carney Frankel (FL) Kelly (IL) Thornberry Foxx Mica Schultz Ellmers Mica Carson (IN) Frelinghuysen Kennedy Tipton Franks (AZ) Michaud Waxman Farenthold Michaud Cartwright Fudge Kildee Titus Frelinghuysen Miller (FL) Weber (TX) Fleming Miller (FL) Castor (FL) Gabbard Kilmer Upton Gallego Miller (MI) Webster (FL) Chu Garamendi Kind Flores Miller (MI) Walberg Gardner Miller, George Welch Cicilline Garcia Kinzinger (IL) Forbes Moran Walden Garrett Moran Wenstrup Clarke Garrett Kirkpatrick Foxx Mullin Wasserman Gerlach Mullin Westmoreland Clay Gerlach Kuster Franks (AZ) Mulvaney Schultz Gibbs Mulvaney Whitfield Cleaver Gibbs LaMalfa Gallego Murphy (FL) Gibson Murphy (PA) Williams Clyburn Gibson Lance Gardner Murphy (PA) Williams Gohmert Nadler Wilson (SC) Cohen Gohmert Langevin Goodlatte Negrete McLeod Wilson (SC) Goodlatte Neugebauer Wittman Conyers Gosar Larsen (WA) Gowdy Neugebauer Wittman Gowdy Noem Wolf Cook Graves (GA) Larson (CT) Granger Nunnelee Womack Granger Nugent Womack Cooper Graves (MO) Lee (CA) Griffin (AR) O’Rourke Woodall Graves (GA) Nunes Yoder Costa Grayson Levin Griffith (VA) Olson Yoho Graves (MO) Nunnelee Yoho Courtney Green, Al Lewis Hall Owens Young (AK) Griffin (AR) Olson Young (AK) Cramer Green, Gene Lipinski Hanna Palazzo Young (IN) Griffith (VA) Palazzo Young (IN)

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00046 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.042 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE December 5, 2013 CONGRESSIONAL RECORD — HOUSE H7555 NOT VOTING—15 Pelosi Schiff Tsongas Valadao Wenstrup Womack Perlmutter Schneider Van Hollen Wagner Westmoreland Yoder Bishop (GA) Herrera Beutler Radel Peters (CA) Schwartz Vargas Walberg Whitfield Yoho Campbell McCarthy (NY) Reed Petri Scott (VA) Walden Williams Crawford McMorris Veasey Young (AK) Rush Pingree (ME) Scott, David Walorski Wilson (SC) Culberson Rodgers Vela Young (IN) Sires Pocan Serrano Weber (TX) Wittman Doyle Miller, Gary Vela´ zquez Quigley Sewell (AL) Webster (FL) Wolf Gingrey (GA) Nolan Visclosky Rahall Shea-Porter Walz NOT VOTING—16 ANNOUNCEMENT BY THE ACTING CHAIR Rangel Sherman Wasserman Richmond Slaughter Schultz Bishop (GA) Herrera Beutler Radel The Acting CHAIR (during the vote). Rohrabacher Speier Campbell McCarthy (NY) Waters Reed There is 1 minute remaining. Roybal-Allard Takano Crawford McMorris Watt Rush Ruppersberger Thompson (CA) Culberson Rodgers Waxman Sires Ryan (OH) Thompson (MS) Doyle Miller, Gary Woodall b 1257 Sanchez, Loretta Tierney Welch Gingrey (GA) Nolan Mr. POE of Texas changed his vote Sarbanes Titus Wilson (FL) Schakowsky Tonko Yarmuth ANNOUNCEMENT BY THE ACTING CHAIR from ‘‘aye’’ to ‘‘no.’’ The Acting CHAIR (during the vote). Ms. BROWN of Florida changed her NOES—258 There is 1 minute remaining. vote from ‘‘no’’ to ‘‘aye.’’ Aderholt Gardner Moran So the amendment was agreed to. Amash Garrett Mullin b 1301 The result of the vote was announced Amodei Gerlach Mulvaney So the amendment was rejected. as above recorded. Bachmann Gibbs Murphy (PA) Bachus Gibson Neal The result of the vote was announced Stated for: Barber Gohmert Neugebauer as above recorded. Mr. MEEHAN. Mr. Chairman, on amend- Barletta Goodlatte Noem The Acting CHAIR (Mr. WOMACK). ments to the Innovation Act (H.R. 3309), I in- Barr Gosar Nugent Barton Gowdy Nunes The question is on the amendment in tended to vote ‘‘yes’’ on the Rohrabacher Benishek Granger Nunnelee the nature of a substitute, as amended. amendment (rollcall No. 627), but inadvertently Bentivolio Graves (GA) O’Rourke The amendment was agreed to. voted ‘‘no.’’ Bera (CA) Graves (MO) Olson Bilirakis Green, Gene Owens The Acting CHAIR. Under the rule, AMENDMENT NO. 8 OFFERED BY MR. CONYERS Bishop (UT) Griffin (AR) Palazzo the Committee rises. The Acting CHAIR. The unfinished Black Griffith (VA) Paulsen Accordingly, the Committee rose; business is the demand for a recorded Blackburn Grimm Pearce Blumenauer Guthrie Perry and the Speaker pro tempore (Mr. vote on the amendment offered by the Boustany Hanna Peters (MI) YODER) having assumed the chair, Mr. gentleman from Michigan (Mr. CON- Brady (TX) Harper Peterson WOMACK, Acting Chair of the Com- YERS) on which further proceedings Bridenstine Harris Pittenger mittee of the Whole House on the state were postponed and on which the noes Brooks (AL) Hartzler Pitts Brooks (IN) Hastings (WA) Poe (TX) of the Union, reported that that Com- prevailed by voice vote. Broun (GA) Heck (NV) Polis mittee, having had under consideration The Clerk will redesignate the Buchanan Hensarling Pompeo the bill (H.R. 3309) to amend title 35, amendment. Bucshon Hinojosa Posey Burgess Holding Price (GA) United States Code, and the Leahy- The Clerk redesignated the amend- Calvert Honda Price (NC) Smith America Invents Act to make ment. Camp Hudson Reichert improvements and technical correc- RECORDED VOTE Cantor Huelskamp Renacci Capito Huffman Ribble tions, and for other purposes, and, pur- The Acting CHAIR. A recorded vote Capps Huizenga (MI) Rice (SC) suant to House Resolution 429, he re- has been demanded. Ca´ rdenas Hultgren Rigell ported the bill back to the House with A recorded vote was ordered. Carter Hunter Roby an amendment adopted in the Com- Cassidy Hurt Roe (TN) The Acting CHAIR. This will be a 2- Castro (TX) Issa Rogers (AL) mittee of the Whole. minute vote. Chabot Jenkins Rogers (KY) The SPEAKER pro tempore. Under The vote was taken by electronic de- Chaffetz Johnson (OH) Rogers (MI) the rule, the previous question is or- vice, and there were—ayes 157, noes 258, Coble Johnson, Sam Rokita Coffman Jordan Rooney dered. not voting 16, as follows: Cole Joyce Ros-Lehtinen Is a separate vote demanded on any [Roll No. 628] Collins (GA) Kelly (PA) Roskam amendment to the amendment re- Collins (NY) Kildee Ross ported from the Committee of the AYES—157 Conaway King (IA) Rothfus Andrews Engel Kirkpatrick Connolly King (NY) Royce Whole? Barrow (GA) Enyart Kuster Cook Kingston Ruiz If not, the question is on the amend- Bass Esty Langevin Cooper Kinzinger (IL) Runyan ment in the nature of a substitute, as Beatty Farr Larson (CT) Costa Kline Ryan (WI) Becerra Fattah Lee (CA) Cotton Labrador Salmon amended. Bishop (NY) Foster Lewis Cramer LaMalfa Sa´ nchez, Linda The amendment was agreed to. Bonamici Frankel (FL) Lipinski Crenshaw Lamborn T. The SPEAKER pro tempore. The Brady (PA) Fudge Loebsack Cuellar Lance Sanford question is on the engrossment and Braley (IA) Gabbard Lowenthal Daines Lankford Scalise Brown (FL) Garamendi Lujan Grisham Davis, Rodney Larsen (WA) Schock third reading of the bill. Brownley (CA) Garcia (NM) DeFazio Latham Schrader The bill was ordered to be engrossed Bustos Grayson Luja´ n, Ben Ray Delaney Latta Schweikert and read a third time, and was read the Butterfield Green, Al (NM) DelBene Levin Scott, Austin Capuano Grijalva Lummis Denham LoBiondo Sensenbrenner third time. Carney Gutie´rrez Lynch Dent Lofgren Sessions The SPEAKER pro tempore. The Carson (IN) Hahn Maffei DeSantis Long Shimkus question is on the passage of the bill. Cartwright Hall Maloney, DesJarlais Lowey Shuster The question was taken; and the Castor (FL) Hanabusa Carolyn Diaz-Balart Lucas Simpson Chu Hastings (FL) Maloney, Sean Dingell Luetkemeyer Sinema Speaker pro tempore announced that Cicilline Heck (WA) Matsui Duckworth Marchant Smith (MO) the ayes appeared to have it. Clarke Higgins McDermott Duffy Marino Smith (NE) RECORDED VOTE Clay Himes McGovern Duncan (SC) Massie Smith (NJ) Cleaver Holt McIntyre Duncan (TN) Matheson Smith (TX) Mr. CONYERS. Mr. Speaker, I de- Clyburn Horsford McNerney Ellmers McAllister Smith (WA) mand a recorded vote. Cohen Hoyer Meeks Eshoo McCarthy (CA) Southerland A recorded vote was ordered. Conyers Israel Meng Farenthold McCaul Stewart Courtney Jackson Lee Michaud Fincher McClintock Stivers The SPEAKER pro tempore. Pursu- Crowley Jeffries Miller, George Fitzpatrick McCollum Stockman ant to clause 8 of rule XX, this 5- Cummings Johnson (GA) Moore Fleischmann McHenry Stutzman minute vote on passage of the bill will Davis (CA) Johnson, E. B. Murphy (FL) Fleming McKeon Swalwell (CA) Davis, Danny Jones Nadler Flores McKinley Terry be followed by a 5-minute vote on the DeGette Kaptur Napolitano Forbes Meadows Thompson (PA) question on agreeing to the Speaker’s DeLauro Keating Negrete McLeod Fortenberry Meehan Thornberry approval of the Journal, if ordered. Deutch Kelly (IL) Pallone Foxx Messer Tiberi The vote was taken by electronic de- Doggett Kennedy Pascrell Franks (AZ) Mica Tipton Edwards Kilmer Pastor (AZ) Frelinghuysen Miller (FL) Turner vice, and there were—ayes 325, noes 91, Ellison Kind Payne Gallego Miller (MI) Upton not voting 15, as follows:

VerDate Mar 15 2010 01:31 Dec 06, 2013 Jkt 039060 PO 00000 Frm 00047 Fmt 0636 Sfmt 0634 E:\CR\FM\A05DE7.043 H05DEPT1 smartinez on DSK6TPTVN1PROD with HOUSE H7556 CONGRESSIONAL RECORD — HOUSE December 5, 2013 [Roll No. 629] Stivers Upton Welch corded because I was absent due to the birth Stutzman Valadao Wenstrup of my daughter. Had I been present, I would AYES—325 Swalwell (CA) Van Hollen Westmoreland Takano Veasey have voted ‘‘nay.’’ Aderholt Garcia McKeon Whitfield Terry Vela´ zquez Amodei Gardner McKinley Williams Mr. Speaker, on rollcall No. 627, on H.R. Thompson (CA) Wagner Bachmann Garrett Meadows Wilson (SC) 3309, on Agreeing to the Amendment offered Thompson (MS) Walberg Bachus Gerlach Meehan Wittman Thompson (PA) Walden by Mr. ROHRABACHER of California, I am not Barber Gibbs Meeks Womack Thornberry Walorski Woodall recorded because I was absent due to the Barletta Gibson Meng Tiberi Walz Yarmuth birth of my daughter. Had I been present, I Barr Goodlatte Messer Tipton Wasserman Yoder Barrow (GA) Gowdy Mica Titus Schultz would have voted ‘‘nay.’’ Barton Granger Michaud Tonko Waxman Young (AK) Mr. Speaker, on rollcall No. 628, on H.R. Bass Graves (GA) Miller (FL) Turner Webster (FL) Young (IN) Benishek Graves (MO) Miller (MI) 3309, on Agreeing to the Amendment offered Bentivolio Green, Al Miller, George NOES—91 by Mr. CONYERS of Michigan, I am not re- Bera (CA) Green, Gene Moran Amash Gohmert Payne corded because I was absent due to the birth Bilirakis Griffin (AR) Mullin Andrews Gosar Peters (CA) of my daughter. Had I been present, I would Black Griffith (VA) Mulvaney Beatty Grayson Petri Blackburn Grimm Murphy (FL) have voted ‘‘nay.’’ Becerra Grijalva Pingree (ME) Blumenauer Mr. Speaker, on rollcall No. 629, on H.R. Guthrie Murphy (PA) Bishop (NY) Harris Bonamici ´ Pocan Gutierrez Nadler Bishop (UT) Hinojosa 3309, on Passage, the Innovation Act, I am Boustany Posey Hahn Neal Braley (IA) Holt not recorded because I was absent due to the Brady (PA) Rangel Hall Neugebauer Bridenstine Huelskamp Brady (TX) Rohrabacher birth of my daughter. Had I been present, I Hanabusa Noem Brooks (AL) Huizenga (MI) Brooks (IN) Rothfus Hanna Nugent Broun (GA) Jackson Lee would have voted ‘‘yea.’’ Brown (FL) Royce Harper Nunes Capuano Johnson (GA) Brownley (CA) Salmon f Hartzler Nunnelee Carney Jones Buchanan Sarbanes Hastings (FL) O’Rourke Carson (IN) Joyce Bucshon Schakowsky THE JOURNAL Hastings (WA) Olson Cartwright Kaptur Burgess Schiff Heck (NV) Owens Castor (FL) Keating The SPEAKER pro tempore. Pursu- Bustos Heck (WA) Palazzo Cicilline Kind Scott (VA) Butterfield ant to clause 8 of rule XX, the unfin- Hensarling Pallone Conyers Langevin Shea-Porter Calvert Higgins Pascrell Cramer Lewis Sherman ished business is the question on agree- Camp Himes Paulsen Cummings Loebsack Slaughter ing to the Speaker’s approval of the Cantor Holding Pearce Davis (CA) Lowenthal Stockman Capito Journal, which the Chair will put de Honda Pelosi Davis, Danny Lujan Grisham Tierney Capps novo. Horsford Perlmutter DeLauro (NM) Tsongas Ca´ rdenas Hoyer Perry Duncan (SC) Lummis Vargas The question is on the Speaker’s ap- Carter Hudson Peters (MI) Duncan (TN) Lynch Vela proval of the Journal. Cassidy Huffman Peterson Edwards Massie Visclosky Castro (TX) Pursuant to clause 1, rule I, the Jour- Hultgren Pittenger Ellison McDermott Waters Chabot Hunter Pitts Enyart McNerney Watt nal stands approved. Chaffetz Hurt Poe (TX) Foster Moore Weber (TX) Chu f Israel Polis Frankel (FL) Napolitano Wilson (FL) Clarke Issa Pompeo Fudge Negrete McLeod Wolf Clay REMOVAL OF NAME OF MEMBER Jeffries Price (GA) Garamendi Pastor (AZ) Yoho Cleaver Jenkins Price (NC) AS COSPONSOR OF H. RES. 417 Clyburn Johnson (OH) Quigley NOT VOTING—15 Coble Johnson, E. B. Rahall Mr. CHABOT. Mr. Speaker, I ask Bishop (GA) Herrera Beutler Radel Coffman Johnson, Sam Reichert unanimous consent that my name be Campbell McCarthy (NY) Cohen Jordan Renacci Reed Crawford McMorris removed as a cosponsor of H. Res. 417. Cole Kelly (IL) Ribble Rush Culberson Rodgers Collins (GA) Kelly (PA) Rice (SC) Sires The SPEAKER pro tempore. Is there Doyle Miller, Gary Collins (NY) Kennedy Richmond objection to the request of the gen- Gingrey (GA) Nolan Conaway Kildee Rigell tleman from Ohio? Connolly Kilmer Roby ANNOUNCEMENT BY THE SPEAKER PRO TEMPORE There was no objection. Cook King (IA) Roe (TN) Cooper King (NY) Rogers (AL) The SPEAKER pro tempore (during f Costa Kingston Rogers (KY) the vote). There is 1 minute remaining. Cotton Kinzinger (IL) Rogers (MI) LEGISLATIVE PROGRAM Courtney Kirkpatrick Rokita b 1312 Crenshaw Kline Rooney (Mr. HOYER asked and was given Crowley Kuster Ros-Lehtinen Mr. FINCHER changed his vote from permission to address the House for 1 Cuellar Labrador Roskam ‘‘no’’ to ‘‘aye.’’ minute.) Daines LaMalfa Ross So the bill was passed. Davis, Rodney Lamborn Roybal-Allard Mr. HOYER. Mr. Speaker, I yield to DeFazio Lance Ruiz The result of the vote was announced my friend, the gentleman from Vir- DeGette Lankford Runyan as above recorded. ginia, the majority leader, for the pur- Delaney Larsen (WA) Ruppersberger A motion to reconsider was laid on pose of inquiring of the schedule for DelBene Larson (CT) Ryan (OH) the table. Denham Latham Ryan (WI) the week to come. Dent Latta Sa´ nchez, Linda PERSONAL EXPLANATION Mr. CANTOR. I thank the gentleman DeSantis Lee (CA) T. Mrs. MCMORRIS RODGERS. Mr. Speaker, from Maryland, the Democratic whip, DesJarlais Levin Sanchez, Loretta Deutch Lipinski Sanford on rollcall No. 623, on H.R. 3309, on Agreeing for yielding. Diaz-Balart LoBiondo Scalise to the Amendment offered by Mr. GOODLATTE Mr. Speaker, on Monday, the House Dingell Lofgren Schneider of Virginia, I am not recorded because I was will meet at noon for morning-hour Doggett Long Schock absent due to the birth of my daughter. Had Duckworth Lowey Schrader and at 2 p.m. for legislative debate. As Duffy Lucas Schwartz I been present, I would have voted ‘‘yea.’’ announced previously, no votes are Ellmers Luetkemeyer Schweikert Mr. Speaker, on rollcall No. 624, on H.R. scheduled on Monday. On Tuesday, Engel Luja´ n, Ben Ray Scott, Austin 3309, on Agreeing to the Amendment offered Wednesday, and Thursday, the House Eshoo (NM) Scott, David Esty Maffei Sensenbrenner by Mr. WATT of North Carolina, I am not re- will meet at 10 a.m. for morning-hour Farenthold Maloney, Serrano corded because I was absent due to the birth and at noon for legislative business. Farr Carolyn Sessions of my daughter. Had I been present, I would First votes of the week will occur no Fattah Maloney, Sean Sewell (AL) have voted ‘‘nay.’’ Fincher Marchant Shimkus earlier than 2 p.m. on Tuesday. On Fri- Fitzpatrick Marino Shuster Mr. Speaker, on rollcall No. 625, on H.R. day, the House will meet at 9 a.m. for Fleischmann Matheson Simpson 3309, on Agreeing to the Amendment offered legislative business. Last votes for the Fleming Matsui Sinema by Mr. MASSIE of Kentucky, I am not recorded week are expected no later than 3 p.m. Flores McAllister Smith (MO) because I was absent due to the birth of my Forbes McCarthy (CA) Smith (NE) b 1315 Fortenberry McCaul Smith (NJ) daughter. Had I been present, I would have Foxx McClintock Smith (TX) voted ‘‘nay.’’ Mr. Speaker, the House will consider Franks (AZ) McCollum Smith (WA) Mr. Speaker, on rollcall No. 626, on H.R. a few suspensions next week, a com- Frelinghuysen McGovern Southerland Gabbard McHenry Speier 3309, on Agreeing to the Amendment offered plete list of which will be announced by Gallego McIntyre Stewart by Ms. JACKSON LEE of Texas, I am not re- the close of business Friday.

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