[Congressional Record Volume 143, Number 49 (Wednesday, April 23, 1997)]
[House]
[Pages H1719-H1742]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               21ST CENTURY PATENT SYSTEM IMPROVEMENT ACT

  The SPEAKER pro tempore. Pursuant to House Resolution 116 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the further consideration of the bill, 
H.R. 400.

                              {time}  1425


                     In the Committee of the Whole

  Accordingly the House resolved itself into the Committee of the Whole 
House on the State of the Union for the further consideration of the 
bill (H.R. 400) to amend title 35, United States Code, with respect to 
patents, and for other purposes, with Mr. Hastings of Washington 
(Chairman pro tempore) in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN pro tempore. When the Committee of the Whole rose on 
Thursday, April 17, 1997, the amendment in the nature of a substitute 
offered by the gentleman from California [Mr. Rohrabacher] had been 
disposed of and the bill was open for amendment at any point.
  Are there further amendments to the bill?


                Amendment No. 1 Offered by Mr. Campbell

  Mr. CAMPBELL. Mr. Chairman, I offer an amendment.
  The CHAIRMAN pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Campbell: amend section 
     302(C)(2), p. 68 of March 20 text: Strike lines 4-6.
       Insert: ``under this chapter, and such use shall not be 
     greater in quantity, volume, or scope than had been the 
     actual quantity, volume, or scope of the prior use, however, 
     the defense shall also extend to improvements in''
       Amend section 302(C)(6), p. 69 of March 20 text:
       At line 23, strike ``,'' add: ``; in which case the use of 
     the defense shall not be greater in quantity, volume, or 
     scope than had been the actual quantity, volume, or scope of 
     the prior use.''

  Mr. CAMPBELL. Mr. Chairman, I begin today with a word of thanks to my 
good friend and colleague, the gentleman from California [Mr. 
Rohrabacher], on whose side I fought last week, and to my good friend 
and colleague, the gentleman from North Carolina [Mr. Coble], the 
chairman. This is a different subject from last week. It is an 
amendment that deals with the prior domestic use. I would just like to 
take a moment and explain it.
  This bill does something that has never before happened in American 
patent law. What it says is that where a prior user of a patented idea 
has made commercial use of that idea in the United States, then--even 
though the inventor files the patent on time and even eventually gets 
the patent--that inventor has no opportunity to get royalties from that 
prior domestic user. Now, that messes up the whole system. The idea is 
to reward the inventor, the person who comes up with the idea first, 
and who goes and gets it patented.
  If instead you have to look around and wonder if somebody else 
anywhere

[[Page H1720]]

in the country is engaged in the prior domestic use, you run the risk 
that when the patent eventually is awarded to you it will have very 
little value, very little value because some other company has already 
got it and the right to continue producing it.
  This is a problem that might be limited, and I was offering an 
amendment to my good friend the chairman of the committee, which 
regrettably he was not able to accept. I do wish to put on the Record, 
by the way, that he accepted many other amendments of mine, for which I 
am very grateful. So this has been a cooperative process, but he was 
not able to accept this one.
  What I suggested was, look, let us limit this prior domestic user to 
the kind and volume of that prior use. If you are an innocent prior 
domestic user, okay, continue. But you should not be able to double it, 
to triple it, increase it tenfold after somebody else has the patent. 
Particularly I am worried that if you sell your company, you should not 
be put in the position where the acquirer is bidding more for the 
company because it has the crown jewel of being able to do what, under 
existing law, would be a violation of patent.
  So I propose today on the floor exactly the amendment I offered to 
the chairman, and I am going to take just a moment further and explain 
it. It says, go ahead, I understand the occasional need for a prior 
domestic user to continue, but it will be limited in quantity, volume, 
and scope to the actual quantity, volume, and scope that you were 
producing before; and, if you are acquired, that the acquirer, in 
taking over the full company, also not expand that use in scope or 
quantity or volume. Obviously the Patent Office has the right to issue 
regulations that will be relevant for explaining and applying this 
exception.
  Where did I come up with this? This is a model in labor law about the 
opportunities and obligations to continue bargaining when an employer 
is taken over by another. The legal rules for changes in scope when 
there is a change in ownership are well known in existing law. I hope 
this is clear, and I offer this as an amendment that will improve the 
Coble bill that we are voting on later today. It will not defeat the 
other provisions of the bill. It is not inconsistent with it in my 
view.
  Since last week, one additional piece of testimony has come to my 
attention, Mr. Chairman, and that is from Robert Rines, the president 
of the Academy of Applied Science. He wrote the following in a letter 
dated April 22:

       I also know firsthand that staff at MIT, where I teach, 
     Stanford, Carnegie and Harvard, at least, are particularly 
     upset with the prior secret user provision, which is 
     certainly of no value to universities and which if passed 
     will be used to deprecate their patents.

  The importance of this is underlined by the fact that the major 
research universities have an interest in creating innovation and not 
having the value of it taken away because some prior domestic user 
making, let us say, 10 units can now make 100. That is it. I believe 
the amendment is simple, and I would urge my colleagues to support it.
  Mr. COBLE. Mr. Chairman, I rise in opposition to the amendment.
  I thank the gentleman from California. As he indicated, Mr. Chairman, 
we have been pretty easy dogs to hunt with. As the gentleman said, we 
have compromised, we gave away a lot. I do not think we compromised the 
bill in doing so, but we worked very favorably with many people who 
came to us.

                              {time}  1430

  The amendment made in order by my colleague would seriously undermine 
the effectiveness of title III of H.R. 400, however, which protects 
prior American users of patented technologies. The amendment would 
apply limitations on expansion of activities by the prior user and by 
any company to which the prior user might wish to transfer its 
business.
  The first part of this amendment is unclear to me as to exactly what 
type of limit would be placed upon a prior user. By limiting the 
quantity and volume to the, quote, actual quantity, volume or scope, 
close quote, of the prior use, the question is prior to what? Prior to 
the date of filing of an application covering an invention which is the 
subject of the prior use? Prior to the date of issuance on such a 
patent? Prior to the date the prior user is sued by the patent holder? 
It is very nebulous.
  Irrespective of the actual meaning of the first part of this 
amendment, Mr. Chairman, it would at least significantly erode the 
benefit of the prior user right to American manufacturers, leaving them 
at a serious disadvantage vis-a-vis European and Japanese patent 
holders. All of our major trading partners have prior use defenses in 
their laws now. Thus, while foreign firms could use their U.S. patents 
to effectively disrupt the U.S. manufacturing and production facilities 
of American companies, the manufacturing operations of these foreign 
firms would remain immune from attack on the basis of patents obtained 
in their countries by their U.S. competitors. Such serious limitation 
on the prior use defense would place enormous pressure on enterprises, 
large and small, to seek to patent every advance which formed part of 
their production technology to avoid disruptions from patents by 
subsequent inventors.
  The second part of the amendment, in addition to suffering the same 
infirmities of clarity, would be extremely prejudicial to start-up 
firms and small businesses which are frequently acquired by larger 
firms. A small business concern enjoying a prior use right, which it 
cannot transfer to a perspective purchaser, will be considerably less 
valuable to such a purchaser, depriving the individuals who created the 
small business in the first place of the just returns for their 
endeavors.
  For those reasons and others, Mr. Chairman, I oppose the amendment 
offered by the gentleman from California [Mr. Campbell].
  Mr. DELAHUNT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, the ranking member and I and other Democratic members 
of the subcommittee oppose this amendment. It forbids a technology-
based business to grow its operations if the benefits are from a prior 
use defense. It would also freeze the level of activity benefiting from 
a prior use defense when a business was sold. This would especially 
harm small firms selling their businesses. The amendment limits the 
protection for prior uses to use that is no greater in quantity, volume 
or scope than the use that occurred before a somewhat unclear point in 
time. The limitation applies both to any expansion in quantity, volume 
or scope by another company to which the prior user may wish to 
transfer its business.
  The practical effect of this limitation would be to discourage any 
growth or improvement in businesses that title III is intended to 
protect. The limitation also would discourage any transfer of a line of 
business to another firm that might be more efficient and competitive.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. DELAHUNT. Mr. Chairman, I yield the balance of my time to the 
gentlewoman from California.
  Ms. LOFGREN. Mr. Chairman, I just wanted a quick comment. The 
chairman has received a letter. Mr. Lehman, our Commissioner of Patents 
and Trademarks, has written to the chairman on this issue, and I want 
to quote him. He in his letter dated April 22 indicates that, and I 
quote:

       H.R. 400 contains provisions referred to as prior use 
     rights that are intended to make the patent system fairer by 
     allowing those who practice an invention before it was 
     patented by another to continue to practice invention after 
     the patent issued.

  According to Mr. Lehman, and again this is a quote:

       Mr. Campbell's amendment is unfair in limiting their rights 
     to exploit the invention to the quantity or volume of use at 
     the time of the prior use. In some instances they may have 
     reasonably expected to expand operations at a later time and 
     others that may be tantamount to eliminating the prior use 
     right.

That is Mr. Lehman's comment.
  Mr. CAMPBELL. Mr. Chairman, would the gentleman yield?
  Mr. DELAHUNT. I yield to the gentleman from California.
  Mr. CAMPBELL. Would the gentleman kindly request the gentlewoman to 
share that copy with me, in that I have not seen it until this moment?
  Ms. LOFGREN. Mr. Chairman, if the gentleman will yield, I am sorry. 
Of course. Since it was sent to the gentleman from North Carolina [Mr.

[[Page H1721]]

Coble] I assumed, but I would be happy to, when we go back into the 
House of Representatives, I will ask unanimous consent that the letter 
be submitted in the Record. In the meanwhile I will make a copy for the 
gentleman.
  Mr. CAMPBELL. If the gentlewoman from California can just bring it 
over to me, that way I can see it on my rebuttal.
  The letter referred to is as follows:

                                      U.S. Department of Commerce,


                                  Patent and Trademark Office,

                                   Washington, DC, April 22, 1997.
     Hon. Howard Coble,
     Chairman, Subcommittee on Courts and Intellectual Property, 
         Committee on the Judiciary, House of Representatives, 
         Washington, DC.
       Dear Mr. Chairman: Thank you for your request to review 
     proposed amendments to H.R. 400, the ``21st Century Patent 
     System Improvement Act.'' We oppose enactment of any of these 
     proposed amendments and amendments that may be presented 
     containing the same subject matter.
       One amendment offered by Mr. Hunter would amend provisions 
     of H.R. 400 related to patent reexamination--a proceeding 
     that offers a cost-effective alternative to litigation. As 
     changed by the Manager's Amendment, title V of H.R. 400 would 
     improve the existing procedures by permitting those who 
     question patent validity (other than the patent owner) to 
     participate more effectively in reexamination proceedings. 
     This makes reexamination a more effective alternative to 
     expensive and time-consuming litigation. This amendment would 
     eliminate this improvement and all others contained in H.R. 
     400. Furthermore, it would preclude the primary examiner who 
     authorized the issuance of the patent, the person in the 
     Patent and Trademark Office most familiar with the patent and 
     the technology involved in it, from participating in the 
     reexamination of the patent.
       Another proposed amendment offered by Mr. Hunter would 
     retain the provisions as amended by the Manager's Amendment 
     but would change them in such a way as to render 
     reexamination proceedings as almost useless. Under the 
     provisions of this amendment, reexamination proceedings could 
     only be instituted within nine months of the date of issue of 
     the patent. In many or most cases, disputes involving the 
     validity of the patent will not be apparent within the first 
     nine months after issue. Thus, reexamination will not be a 
     viable substitute for litigation in many instances and patent 
     owners and third parties will be forced to engage in 
     litigation that is more costly and time consuming. While this 
     would be a disadvantage for all businesses, this could be 
     especially disadvantageous for individual inventors and small 
     businesses. It is ironic that this amendment is claimed to 
     have been offered on their behalf.
       An amendment offered by Mr. Forbes would preclude pre-grant 
     publication of a patent application filed by small business 
     or individual inventors (as defined in the fee subsidy 
     provisions of title 35), unless requested by the applicant. 
     The public benefits from prompt publication of patent 
     applications. There appears to be no reason to exempt some 
     applicants from the publication requirement, especially when 
     any possible legitimate concerns about losing the 
     opportunity to use trade secrets are mitigated by the bill 
     under consideration. It provides that these applicants can 
     request delays in publication until after the second 
     office action.
       H.R. 400 contains provisions, referred to as ``prior user 
     rights,'' that are intended to make their patent system 
     fairer by allowing those who practiced an invention before it 
     was patented by another to continue to practice invention 
     after the patent issued. Mr. Campbell's amendment us unfair 
     in limiting their rights to exploit the invention to the 
     ``quantity or volume of use'' at the time of the prior use. 
     In some instances, they may have reasonably expected to 
     expand operations at a later time. In others, it may be 
     tantamount to eliminating the prior user right.
       Each of these proposed amendments would make it more 
     difficult for all businesses, but especially small businesses 
     or individual inventor, to exploit their inventions 
     successfully. Therefore, we oppose their enactment.
       Furthermore, during the debate on H.R. 400, some Members 
     cited a report released by the Congressional Research Service 
     that concluded that H.R. 811 would end the practice of 
     ``submarine patents''. This conclusion in it is incorrect. 
     H.R. 811 would permit publication at a late point in patent 
     prosecution (unlike H.R. 400 that requires early publication) 
     and permits the term to run from the date of issue (unlike 
     H.R. 400 that requires the term to run from the date of 
     filing). This means that the public would not receive notice 
     of the ``submarine'' patent until the five-year date. 
     Although this could be earlier than they would under the law 
     before the enactment of the Uruguay Round Amendments Act, the 
     public still could have invested substantial amounts 
     unknowingly in the technology covered by the submarine 
     patent. Worse, given the term provisions, the beginning of 
     the patent term can still be unjustifiably delayed so that it 
     appears that the submariner is obtaining a longer patent term 
     than authorized. Thus, the public may then know about the 
     patent application pending in the Office, but they cannot 
     stop the delay tactics or the unfair extension of the patent 
     term.
           Sincerely,

                                              Bruce A. Lehman,

                               Assistant Secretary of Commerce and
                           Commissioner of Patents and Trademarks.

  Mr. DELAHUNT. Mr. Chairman, I yield back the balance of my time.
  Mr. ROHRABACHER. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, I was very pleased that the gentlewoman from California 
[Ms. Lofgren] brought up Bruce Lehman, the head of our Patent Office. 
He is the one who actually made an agreement that has brought us all 
together today. It was his agreement with the Japanese, which I put 
into the Congressional Record on numerous occasions which the other 
side of this debate has yet to comment on, that has brought us 
together, because Mr. Lehman signed an agreement to harmonize American 
patent law with that of the Japanese. That is the reason we are here 
today.
  America had the strongest patent law in the world. That is the reason 
we had our great innovations that mankind has enjoyed over these last 
200 years coming from the United States of America.
  This is an attempt, what is happening today, H.R. 400, to destroy the 
fundamental legal protections that have been part of our legal system 
since the adoption of our Constitution and in the name of harmonizing 
our law with that of Japan.
  Last week, when we had this discussion as to basically our substitute 
amendment, all of this, quote, reform was being done to stop submarine 
patenting, supposedly. Well, those who were listening realized that 
argument did not wash. Well, what was the real reason we have the bill 
here? Why is there a portion of this bill that demands that every 
American inventor will have to have his invention published for 
everybody in the world to see and to steal before that patent is 
issued? That is part of the bill because that is the way the Japanese 
system works. That is what we have agreed to in a subterranean 
agreement with the Japanese.
  This bill will gut America's patent system. It is horrendous. It will 
make us technologically inferior one generation from now. I ask my 
colleagues to defeat it.
  Mr. Chairman, I yield the balance of my time to the gentleman from 
California [Mr. Campbell].
  Mr. CAMPBELL. Mr. Chairman, there were three points made in 
opposition to my amendment. I would like to rebut each of them. First 
of all, prior domestic use; it has been asked: Prior to what? The 
answer is already in the bill. Remember the bill itself creates the 
prior domestic use as a right. Accordingly, I am saying whatever that 
prior domestic use is, it shall be limited to its scope as of the time 
of the prior domestic use recognized by the bill. So it really is a 
circular argument against my amendment.
  Second, opponents of my amendment argue that this is a disadvantage 
for America in regard to Europe because Europe has a prior domestic use 
provision. This is the debate we had last week.
  If a European files over here, the European's prior domestic use does 
not give an excuse to violate American patent law. Everyone over here 
is treated the same. Over in Europe, whether an American or a European 
files, there is a prior domestic use exception. So there is a no 
unfairness between the two; we have a better system. In America the 
patent means more, and that should be protected.
  And, last, opponents argue that small businesses are somehow 
disadvantaged. I have now had the opportunity to read Mr. Lehman's 
letter. He claims small inventors are disadvantaged--but what he says 
is disadvantaged as opposed to what the amendment would provide instead 
of the bill, not disadvantaged as compared to the status quo. There is 
no prior domestic commercial use in the status quo.
  Now if my colleagues wish to create a prior domestic use exception, I 
am limiting it so that it is not expanded so broad as to take away the 
value of the right. And that is my intention. But please, to say that 
it limits the small businesses is really quite erroneous because small 
businesses do not have this right presently.
  Last, if you want to generalize, understand it is the large 
businesses who

[[Page H1722]]

are more likely engaged in the prior domestic commercial use. It is the 
small businesses who, if you want to generalize, are the inventors, the 
larger businesses who are the commer- cializers.
  This one provision shows as clearly as any in the bill that it is an 
attempt to take from the inventor and give to the commercializer, and 
we do that at great risk to the inventing process.
  I thank my colleague for yielding.
  Mr. ROHRABACHER. It is fascinating that in H.R. 400, which we will 
vote on as an up-and-down vote at the end of this long debate and after 
our amendments are through, that all of the Nobel Laureates that have 
been cited on the floor have been in favor of a substitute to H.R. 400 
and have opposed H.R. 400; the research departments of our major 
universities and colleges are opposed to H.R. 400; every inventors' 
organization in the country is opposed to H.R. 400; small businesses 
throughout our country are opposed to H.R. 400.
  They do not want to give huge, multinational, and foreign 
corporations every secret that they have been developing with their 
research and their efforts over the years, even before patents are 
granted to those who have applied for patents.
  This would make vulnerable small businessmen. It would make 
vulnerable our inventors. It would cut into what America has had as our 
edge against every one of our foreign adversaries both in terms of 
national security and in terms of our prosperity.
  I am asking my colleagues to join me in voting no on H.R. 400 but 
supporting the amendment of the gentleman from California [Mr. 
Campbell] which would, hopefully, improve it one little bit.
  Mr. HYDE. Mr. Chairman, I move to strike the requisite number of 
words. I just have a very brief statement I want to make.
  I want to say to my friend, the gentleman from California [Mr. 
Rohrabacher]: First, I disagree with him comprehensively in his 
interpretation of the bill; second, a local Capitol Hill-newspaper has 
quoted me according to some anonymous source, as referring to him with 
a highly uncomplimentary name. I would like the public record to show 
that I hold him in the highest regard, I hold him in the highest 
esteem, in the highest respect, and that I disavow such terms and 
dislike personalizing any disputes.
  I hope the gentleman does not put any credence in that published 
statement because that would be wrong. But again, I reiterate my 
comprehensive disagreement with the gentleman.
  Publication is protection. Yes, it is published. Yes, people can read 
it. But you have provisional rights as though you had a patent issued. 
What the publication does is say, yes, this is my idea, I was here 
first, do not tread on me. And it is that publication of foreign 
applications for patents that we would like to see, inasmuch as they 
see ours when we file over there.
  But notwithstanding that, that is not the real thrust of my remarks. 
The thrust of my remarks is to say that the gentleman is persistent and 
tenacious and a very worthy adversary; and I hope the misstatements in 
the press have not colored the gentleman's view of my opinion of him, 
which is of the highest.
  Ms. KAPTUR. Mr. Chairman, I move to strike the requisite number of 
words, and I yield to the gentleman from California [Mr. Rohrabacher].
  Mr. ROHRABACHER. Mr. Chairman, I thank the gentlewoman for yielding.
  First of all, I would like to say that this has been a heated debate 
and it has been a bipartisan debate; and no one can really chart who is 
going to fall down on what side of this debate in terms of their party 
or whether they are conservative or liberal or what have you.
  I think that is healthy for this body. And I certainly never believed 
that my colleague, the gentleman from Illinois [Mr. Hyde] would have 
personalized it the way the newspaper said it was. After all, it was a 
comment not about me but about my mother I seem to think. And I am sure 
that comment would not really have been something that would be 
characteristic of the gentleman from Illinois [Mr. Hyde], who has 
always kept debates on a very high plain, even though sometimes being 
called Mr. Periscope is not always the nicest thing in the world, but I 
did not take offense at that either.
  Mr. HYDE. Mr. Chairman, if the gentlewoman would yield, the 
gentleman's periscope is always up.
  Mr. ROHRABACHER. But I have nothing but respect for the gentleman 
from North Carolina [Mr. Coble] and the gentleman from Illinois [Mr. 
Hyde].
  As I say, if one would examine our voting records, one would find 
that we vote together 90 percent of the time. Again, however, in this 
particular instance, I am in strong disagreement with my two 
colleagues. And I am happy that we are discussing publication, because 
I believe publication is the essential ingredient of H.R. 400.

                              {time}  1445

  How one might determine this, whoever is listening from the outside 
or reading the Congressional Record or our colleagues listening from 
their offices, is that this bill was actually submitted to Congress 
during the last session. The bill was virtually the same bill, but it 
had a different title on the bill. The title of the bill in the last 
Congress was the Patent Publication Act.
  The reason it was called the Patent Publication Act is because the 
purpose of the bill, and the essential purpose, the essential thing 
that it accomplishes that could not be accomplished with other minor 
reforms, or actually things that could happen, reforms within the 
Patent Office itself, the publication is the thing that by necessity 
takes some congressional action.
  Why is publication bad? It is common sense. Those people who are 
listening, those people who are reading the Congressional Record, our 
colleagues who are listening at home, if one cannot understand the 
argument that was just presented to us of why publishing our secret 
information, information that by American tradition was kept absolutely 
confidential until the issuance of a patent, from the time our 
Constitution was adopted until after this bill passes and is signed 
into law, the law has been that an American has a right of 
confidentiality. If he has an invention and applies for a patent, no 
one will have the right to know about it until that patent is issued.
  This is a major divergence of American law in a fundamental area. We 
are talking about the law that has governed technological development 
in our country. It has served us well. America's competitors did not 
know what American inventors, innovators, and universities were doing 
until the patent was issued. This bill would mandate after 18 months 
that all of the information of an applicant would be made public even 
before the patent is issued.
  Sometimes patents take 5 and 10 years to issue. In that case, 
America's worst adversaries, people who want to destroy this country 
economically and bring us down, will have all of our technological 
secrets to use against us. The bill takes care of that, we are told, 
because it grants then, the innovator, the inventor, the right to sue 
these huge foreign and multinational corporations who might infringe 
upon us.
  That will not work. It does not fool the inventors. It is a formula 
for a catastrophe and the stealing of our technology to be used against 
us.
  I ask for people to vote no on H.R. 400.
  Ms. KAPTUR. Mr. Chairman, I yield the balance of my time to the 
gentleman from California [Mr. Campbell].
  Mr. HYDE. Mr. Chairman, will the gentlewoman from Ohio yield?
  Mr. CAMPBELL. Mr. Chairman, if the gentleman from Illinois [Mr. Hyde] 
will get us some more time.
  Mr. HYDE. Mr. Chairman, I ask unanimous consent that the gentlewoman 
from Ohio have an additional minute.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Illinois?
  There was no objection.
  Mr. HYDE. Mr. Chairman, will the gentlewoman yield?
  Ms. KAPTUR. I yield to the gentleman from Illinois.
  Mr. HYDE. Mr. Chairman, this is just kind of a passing comment. The 
gentleman from California [Mr. Rohrabacher] talked about countries that 
wanted to destroy us economically. I searched the globe, and I see all

[[Page H1723]]

of these countries wanting to trade with us. They like our markets. 
They do not really want to destroy us economically. They would like to 
get an advantage, but destruction, I do not think that is part of their 
agenda.
  Mr. CAMPBELL. Mr. Chairman, will the gentlewoman yield?
  Ms. KAPTUR. I yield to the gentleman from California.
  Mr. CAMPBELL. Mr. Chairman, if I could please get attention to my 
amendment. It has nothing to do with disclosure. My amendment has 
something to do with the prior user opportunity to undermine the 
patent. Here is what it is.
  The bill itself says something that has never existed before in 
American patent law. At it is now in patent law, if one who was making 
a product prior to you, but does not obtain the patent, and you do--
they have to pay you royalties. That is valuable. It is a way to make 
people go to the Patent Office and get their idea patented.
  Under this bill, for the first time in American patent law, that 
prior domestic user gets to continue--with no obligation to pay 
royalties, and worse, the right to expand, and sell the company and 
sell this right along with the company, with the result that it really 
takes away a significant percentage of the value of having a patent.
  So what I propose is this: I understand that there will occasionally 
be a prior innocent commercial user. Let him, let her continue--that is 
all right--but only with the scope and volume that that person was 
doing. Do not allow it to be a back door to expand so much as to take 
away the essential patent right.
  I think that is a very reasonable amendment. We had discussion on 
this as an amendment, and I think it improves the bill. I thank my 
colleagues from Ohio.
  Mr. HUNTER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I thank the gentleman for staying around to answer a 
few questions on his amendment. I just want to ask a couple of 
questions. Let me walk through this thing and make sure I get the right 
and accurate picture of what his amendment does.
  This has to do with prior use of a certain technology, and that means 
presumably, if one has a company that has been using technology, let us 
say they have kept it as a trade secret so other people do not know 
what it is, and they end up obtaining a patent for that particular 
technology, that the prior user, the corporation, can continue to use 
the technology without having to pay. But if they expand their activity 
beyond the scope that existed at the time the patent issued for the 
inventor over here, then they have to pay for the delta, the difference 
between their present activity and their expanded activity, using what 
is now patented technology.
  Is that an accurate description?
  Mr. CAMPBELL. Mr. Chairman, will the gentleman yield?
  Mr. HUNTER. I yield to the gentleman from California.
  Mr. CAMPBELL. Mr. Chairman, it is almost accurate; there is just one 
point where it was not, and that is that the expansion is of the use 
beyond the prior domestic use. At one point my colleague substituted 
the word ``patent'' for ``use,'' but I think he has said it absolutely 
accurately otherwise.
  Here it is: Under existing patent law, the prior domestic user has to 
pay royalties to the person who gets the patent. This bill says that 
prior domestic user who might have kept it secret can expand to his 
heart's content. My amendment says, no, look, if you have a prior 
domestic use, that is what you can continue doing; but if you expand it 
beyond that, then you have to deal with the fellow who has the patent.
  Mr. HUNTER. Mr. Chairman, I thank the gentleman for his explanation.
  Mr. CAMPBELL. Mr. Chairman, if the gentleman would yield further, I 
want to just take one moment to read the provision in the bill which I 
would amend. Again, I say to my colleagues, this has nothing to do with 
publication; it has to do with an exemption never before existing in 
American patent law. It says, I am quoting from the bill, title III: 
``except that the defense shall also extend to variations in the 
quantity or volume of use of the claimed subject matter.''
  I take that out, and I say, if you have a prior use, okay, continue 
it, just do not expand it. I thank the gentleman for yielding.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from California [Mr. Campbell].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             Recorded Vote

  Mr. CAMPBELL. Mr. Chairman, I demand a recorded vote.
  The CHAIRMAN. Pursuant to House Resolution 116, further proceedings 
on the amendment offered by the gentleman from California [Mr. 
Campbell] will be postponed.
  Mr. COBLE. Mr. Chairman, I move to strike the last word to engage in 
a colloquy with my friend from California [Mr. Campbell], a brief 
colloquy, if the gentleman is willing.
  Mr. Chairman, the gentleman and I talked about this in the back of 
the room earlier, and as best I recall, the gentleman was in agreement, 
but he may not be able to bind others.
  I think our colleagues have heard about enough of H.R. 400. Would the 
gentleman be willing, and it would be unanimous consent, to terminate 
all debate on this matter at 5 o'clock today?
  Mr. CAMPBELL. Mr. Chairman, will the gentleman yield?
  Mr. COBLE. I yield to the gentleman from California [Mr. Campbell].
  Mr. CAMPBELL. Mr. Chairman, I speak only for myself. I have consulted 
with my colleague from California. I know my other colleague from 
California, Mr. Hunter, will be offering an amendment, and I understand 
our colleague from New York, Mr. Forbes, will be offering an amendment.
  On my own behalf and having consulted with my colleague, I am more 
than willing to use every effort to end by 5. This is my last 
amendment.
  There is one disagreement. In my family, we speak of little else than 
patent law, and I am shocked that the gentleman would find that a 
limitation is somehow preferred by my colleagues on the floor. But if 
that is my colleague's perception, I would be agreeable.
  Perhaps the gentleman would yield to my colleague from California, 
Mr. Hunter.
  Mr. HUNTER. Mr. Chairman, if the gentleman would yield, certainly I 
have an amendment that I will be offering at the end of the other 
amendments and I will try to make it short and sweet and do everything 
I can to accommodate our friend.
  I would anticipate we ought to be finished by 5. I would hate to be 
at 4:45 or 4:50 and have one to go, but I think we can do it.
  Mr. COBLE. Mr. Chairman, I thank the gentleman.
  Mr. Chairman, for what it is worth, I ask unanimous consent that all 
debate on the bill and any amendments thereto be concluded by 5 o'clock 
today.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
North Carolina?
  There was no objection.


                   Amendment Offered by Mr. CAMPBELL

  Mr. CAMPBELL. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment offered by Mr. Campbell: page 48 of March 20 
     text, strike line 3, insert:
       ``111(b) of this title, as to which there have been two 
     substantive Patent Office actions since the filing, shall be 
     published, in accordance''
       Line 17, insert:
       ``(D) `Substantive Patent Office action' means an action by 
     the patent office relating to the patentability of the 
     material of the application (not including an action to 
     separate a patent application into parts), unless the patent 
     applicant demonstrates under procedures to be established by 
     the patent office that the office action in question was 
     sought in greater part for a purpose other than to achieve a 
     delay in the date of publication of the application. Such 
     Patent Office decision shall not be appealable, or subject to 
     the Administrative Procedures Act.''

  Mr. CAMPBELL. Mr. Chairman, this is the last amendment I will offer. 
It deals with the publication issue.
  For our colleagues who have not followed the debate on the floor, I 
would simply observe that the first amendment I offered was not on this 
subject; it dealt with prior commercial use. This does. This is the 
soul of a compromise that I thought made sense.
  I will point out that it deals with the obligation to disclose before 
a patent is

[[Page H1724]]

actually granted. Everyone who followed the debate last week is 
familiar with the argument, pro and con, but I, in good faith, tried to 
work out a compromise, and we were close, but it was not eventually 
successful. I believe it is the right way to go, though. Here is what I 
am suggesting.
  The whole argument in favor of disclosure offered by the supporters 
of the bill is that there is a submarine patent problem. Some patent 
applicants will keep their application secret, just below the surface 
for a while, and then ask for a continuation, ask for a delay, and then 
wait for somebody else to take their idea and turn it into a commercial 
product; and when they do, then they rise, like a submarine, and fire 
their torpedoes of litigation. I understand that argument. It has 
validity, in part.
  So what I suggest is, let us require disclosure for some, but by 
requiring disclosure for all, we run all the risks that we talked about 
last week. There are good-faith people who are not trying this 
submarine strategy who want to try to get a patent, but when they are 
told they are not likely to, they then want to take their idea to a 
company and say, ``I have a trade secret, are you interested in a trade 
secret?''
  But after the bill passes, if it does today and becomes law, if the 
other body passes it and the President signs it, well, then, it is 
gone, because they have already disclosed their secret.
  So let us solve the problem of the submarine patent but not cause 
everybody to have to disclose. That is the element of my compromise.
  So how do we determine who ought to disclose? Here is the part that I 
offer, and I think it is a generous offer. If this is acceptable to the 
majority of Members, we will have improved this bill. It says, look, I 
have one pretty good signal. If one has had two actions in the Patent 
Office, one is possibly involved in gaming the system. Let me emphasize 
``possibly,'' because there are a lot of innocent people who have two 
actions in the Patent Office. Indeed, I am informed by some of my 
research universities that three or four Office actions are needed 
before they are absolutely sure.
  I am being as generous as I can to try to seek compromise, and I am 
saying, disclose if you are in the Patent Office and you get two patent 
actions. That tells me that gaming the system is afoot, maybe.

                              {time}  1500

  This amendment says disclose only if we are convinced that you might 
be a submariner. I think it is a very generous exception, but it does 
not require everyone to disclose. So the innocent patent applicant who 
does everything he or she can and just does not get the patent by 18 
months can continue to try to get the patent without suffering the 
consequence that it is disclosed to the world. The person who is 
attempting to game the system really cannot game it without getting two 
patent actions.
  Let me take a moment and explain what a patent action is. For 
example, somebody would go in and ask for a continuation; the Patent 
Office is ready to make your decision and give you a patent, but I, the 
patent applicant, say: Take your time, please delay it a little more. 
Please consider the prior use that might have been alleged, for 
example. Please consider that this patent has more than one possible 
patentable idea in it, for example.
  All of those requests could, of course, be done innocently, but I am 
suggesting that they are sufficient for us to say the risk of the 
submariner is there.
  In conclusion, I put to my colleagues, if the patent applicant has 
not even gotten two Patent Office actions, how can this patent 
applicant be engaged in a subterfuge, an attempt to engage in or an 
attempt to do a submarine number? It is really practically impossible. 
That is not how it is done. So rather than force the world to disclose, 
please, just go after the wrongdoers, and even so, I am sweeping 
broadly.
  That is what I offer. I appreciate the attention of my colleagues.
  Mr. COBLE. Mr. Chairman, I rise in opposition to the amendment 
offered by my friend, the gentleman from California [Mr. Campbell].
  Mr. Chairman, I say to the gentleman from California, I have referred 
to him on many occasions as one of the most learned, if not the most 
learned, Member of this august body, and perhaps I was presumptuous 
when I accused him of committing infirmities of clarity. The gentleman 
might remind me that it was my inability to interpret. But it appeared 
to me to be an infirmity of clarity, nothing personal meant by that.
  The amendment submitted by my friend, the gentleman from California, 
Mr. Chairman, can be interpreted to require the PTO, Patent and 
Trademark Office, to complete two substantive office actions in every 
application filed and still publish all applications in 18 months.
  The PTO is simply not able to comply with such a requirement at this 
time with their existing resources. This solution would force the PTO 
to ask Congress for a fee increase, which comes, guess where, out of 
the inventor's pockets. It could also affect the quality of patent 
examinations, causing more examiners to make mistakes through hurried 
examinations, and therefore exposing inventors to more court 
challenges, which can cost millions of dollars. That does not propel 
innovation, it seems to me.
  The second interpretation of the gentleman's amendment could be to 
delay the publication of all applications until the second substantive 
office action determining the patentability of an invention. If this 
interpretation holds true, the gentleman from California proposes to 
expand the choice over publication offered only to small businesses in 
H.R. 400. I repeat, we offer that to small businesses in our bill.
  But the gentleman from California [Mr. Campbell] would expand that to 
all applicants, including big business, without granting the inventor a 
3-month grace period before publication. This will remove one of the 
benefits of publishing applications in the United States, the early 
availability of foreign origin applications in the United States in our 
language, in the English language.
  Title II of H.R. 400 requires publication of foreign origin 
applications within about 6 months after filing in the United States. 
That means we see their technology 1 year before any of ours is 
published and protected in the United States. The amendment offered by 
the gentleman from California delays the publication of foreign origin 
applications for a year after the date they would otherwise be 
published in the United States under H.R. 400. Let us not take away 
that benefit.
  Moreover, the Campbell amendment would delay the publication of 
applications by U.S. businesses who are also filing abroad, where their 
applications are already published 18 months after filing in the United 
States. Delayed publication of these applications that are also filed 
abroad deprives American inventors of easy access to the same.
  Whichever way it is read, the amendment offered by the gentleman from 
California, it seems to me, favors foreign applicants over U.S. 
applicants and effectively guts the protections and benefits offered in 
H.R. 400.
  Vote no on the Campbell amendment.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. COBLE. I yield to the gentlewoman from California.
  Ms. LOFGREN. Mr. Chairman, I would just like to note that the ranking 
member concurs in the analysis that the chairman of the subcommittee 
has just outlined.
  Mr. GOODLATTE. Mr. Chairman, I move to strike the last word, and I 
rise in opposition to the amendment offered by the gentleman from 
California [Mr. Campbell].
  Mr. Chairman, I think the debate here has been wrongly focused on the 
whole idea that somehow the patent system operates to protect the work 
of inventors through secrecy. That is not the case at all. We protect 
the work of inventors through secrecy by using a trade secret process.
  Patents operate just the opposite. We protect the rights of American 
inventors through our patent system when the patent is issued today by 
telling the whole world that that particular individual is the first to 
patent that item. That is the protection they get, by publishing the 
work, by publishing the discovery of the invention.
  That is exactly what we are trying to improve in this process by 
publishing after 18 months. We are, if we simply look at this debate 
from the standpoint of how many of these can we continue

[[Page H1725]]

to not publish, overlooking the fact that we are, in point of fact, 
having the opportunity to improve our system and improve the protection 
on those inventors through publication.
  The gentleman from North Carolina has rightly pointed out that if we 
do not change our system, the fact that 75 percent of all the patents 
filed in the United States are published after 18 months because they 
are also filed in Japan, in Germany, in France, and other places around 
the world, in the languages of those countries, in Japanese, in German, 
in French, so inventors in those countries, the little guys, have the 
opportunity to see in their own language exactly what everybody else in 
this process is doing. The small inventor, the major business, anybody 
in the United States, does not have that opportunity under our system 
because we do not publish.
  Of all the patents filed in the United States, 45 percent are filed 
by foreign inventors. We do not get the opportunity to see what they 
are doing in this country because it is not published in English for 
our inventors to see. If we adopt this amendment, we are going to miss 
out on what is a major reform in our patent law that improves the 
conditions, does not harm the conditions for the small inventor.
  The second thing that is harmful for the small inventor in our 
current process is the amount of time it takes that small inventor to 
get capital to get their product on the market. A major business does 
not have that problem. They have the capital. They are ready to go with 
their product, whether they have a patent issued or not. But the little 
guy has the problem of not being able to get that capital.
  Quite to the contrary of the criticism of this legislation by the 
opponents, the experience in Europe and other places around the world 
is that when you publish after 18 months, the entrepreneurial investor 
will be willing to put the money behind your invention sooner because 
you are being published, and not only are you being published, and this 
is the critical element, everybody else in the patent process is being 
published as well, so that entrepreneurial investor has the opportunity 
to know that you are the first one out of the box because you are the 
first one being published.
  If there is anybody else out there with a competing patent idea, that 
if they put their money behind you and somehow somebody else is going 
to get that patent, they now have the opportunity to know that you are 
the one because you are the first one out of the box with that 
publication.
  The experience in Europe and other places has been that the 
entrepreneurs put the money behind that little inventor sooner, get 
their product to market sooner as a result of having that publication.
  Finally, the amendment offered by the gentleman from California does 
not eliminate gaming of the system. As the gentleman from North 
Carolina [Mr. Coble] correctly pointed out, it simply changes the 
nature of the gaming. If somebody wants to force publication of 
somebody else's patent, then they go through the process of having a 
patent controversy in the Patent Office. The result is that there is a 
new way of gaming our system.
  That has not improved the system, that has simply changed the way 
that lawyers and those who want to game the system and take advantage 
of it, who do not want to bring a new idea to market, who do not want 
to get the capital to put an idea on the line but rather want to take 
advantage of somebody else, they will still be able to do it under the 
gentleman's amendment.
  Mr. Chairman, I urge opposition to the amendment and support of H.R. 
400, which will truly improve the system not only for all American 
business but most especially for the little guy.
  Ms. KAPTUR. Mr. Chairman, I move to strike the requisite number of 
words.
  I listen to this discussion about why we have to do things in this 
country to benefit foreign inventors, Mr. Chairman, and I think they 
should be helped, but not at the expense of our own people. The truth 
is that if our country has 10 times as many intellectual breakthroughs 
as any other country in the world, why do we want to conform our system 
to countries that are not working as well as ours?
  The gentleman from Virginia said something about that our inventors 
need to see all this information from other places, but they are not 
clamoring for this. We have more inventors in our part of America, and 
we are the State of Thomas Alva Edison. They are not asking for this to 
be done. What they are asking for is their property rights be 
protected, and that their inventions not be opened up to snooping in 
the 18-month window that the gentleman is talking about, there, that 
after that they can take a look; for whichever country in the world or 
whichever inventor in the world wants to take a look at that, and 
really have special privilege over that intellectual property, which 
has never been granted by this country before.
  If we talk about what other countries do, if you file a patent in 
Germany or one in Japan, you do not file the kind of detailed patent 
that you do in this country. We require so much more of our inventors. 
What is interesting, I just have to put this in the Record, and I am 
going to ask unanimous consent that it be placed in the Record, what is 
driving this entire debate, the amendments, the base bill, is this 
agreement that our government got itself locked into back in January 
1994 called a mutual understanding between the Japanese Patent Office 
and the United States Patent and Trademark Office.
  Mr. Chairman, this is not something that is not significant. This is 
very significant, because what the United States agreed to is exactly 
what the proponents of H.R. 400 are trying to get us to pass here. 
Essentially it says that our Government had to come back to the United 
States after agreeing to this and agree to introduce legislation to 
amend the U.S. patent laws to change the term of patents from 17 years 
from the date of grant of a patent, which has been our current law now, 
for an invention to 20 years from the date of filing, which is the 
change that the proponents of H.R. 400 obviously want.
  What did we get for this; for changing, turning upside down the 
system that has created 10 times more inventions, better inventions, 
intellectual property breakthroughs, than any other country in the 
world? What we got was an agreement from the Japan Patent Office that 
says the following; that they would permit foreign nationals to file 
patent applications in the English language, with a translation in 
Japanese to follow within 2 months.
  So what we agreed to was to turn the entire system that drives job 
creation in this country and has created the standard of living in this 
society, and what we get is a little teeny, weeny agreement from Japan 
that they are going to agree to translate the patents that are filed 
into their own language.
  Mr. Chairman, it seems to me there is something very uneven about 
this playing field, and for those Members that were not a party to 
these negotiations, if the staffs have not informed the Members of what 
is going on here, let me tell them, we are talking about a wholesale 
gutting of the patent laws that have protected the intellectual 
property of our inventors. This has not been talked about much in the 
debate. Our system is completely different than these other countries, 
but what is wrong with our current system? Why is it so bad? Have these 
Members' inventors actually been beating their doors down and asking 
for changes? The only changes my inventors back home have been asking 
for is to make the maintenance fees more easily payable for them. They 
are getting too high for the small people, for the small people.
  What H.R. 400 does is opens up the possibilities of litigation to the 
small people, which are the people that are creating the new jobs in 
this country, making life much more difficult for them, and we get 
almost nothing for it. I would hope that one of the proponents of the 
legislation could explain to me how this is an evenhanded deal for the 
United States, that they are out here. I would hope the gentleman from 
Virginia [Mr. Goodlatte] would respond.
  Mr. GOODLATTE. Mr. Chairman, will the gentlewoman yield?
  Ms. KAPTUR. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. Mr. Chairman, in responding to the gentlewoman's 
comments earlier where she said we were helping foreign inventors, 
quite the opposite. Foreign inventors are helped right now under the 
current laws of

[[Page H1726]]

their countries that publish the 75 percent of all patents filed in the 
U.S. Patent Office that are also filed in other countries.
  The CHAIRMAN. The time of the gentlewoman from Ohio [Ms. Kaptur] has 
expired.
  (By unanimous consent, Ms. Kaptur was allowed to proceed for 1 
additional minute.)

                              {time}  1515

  Ms. KAPTUR. As I mentioned to the gentleman, when you file in Europe 
or you file in Japan, you file a generic patent. You do not file the 
kind of detailed patent that you do in this country. We have a 
different kind of patent system, and the proof is in the pudding. Look 
at this country compared to the places that we are competing with.
  So it seems to me that we should be about the task of saying, if we 
have created a good system, how do we make the system here function 
better for our people rather than getting ourselves into a position 
where we are arguing to rubberstamp an agreement that is going to 
harmonize the United States with countries whose systems are flat, who 
commercialize the inventions made here, and we will disadvantage our 
own people by getting them caught up in all types of litigation.
  Why are we making it harder for the people of the United States to 
protect their intellectual property?
  Mr. Chairman, I submit this for inclusion in the Record.

Mutual Understanding Between the Japanese Patent Office and the United 
                   States Patent and Trademark Office

       Actions to be taken by Japan:
       1. By July 1, 1995, the Japanese Patent Office (JPO) will 
     permit foreign nationals to file patent applications in the 
     English language, with a translation into Japanese to follow 
     within two months.
       2. Prior to the grant of a patent, the JPO will permit the 
     correction of translation errors up to the time allowed for 
     the reply to the first substantive communication from the 
     JPO.
       3. After the grant of a patent, the JPO will permit the 
     correction of translation errors to the extent that the 
     correction does not substantially extend the scope of 
     protection.
       4. Appropriate fees may be charged by the JPO for the above 
     procedure.
       Actions to be taken by the U.S.:
       1. By June 1, 1994, the United States Patent and Trademark 
     Office (USPTO) will introduce legislation to amend U.S. 
     patent law to change the term of patents from 17 years from 
     the date of grant of a patent for an invention to 20 years 
     from the date of filing of the first complete application.
       2. The legislation that the USPTO will introduce shall take 
     effect six months from the date of enactment and shall apply 
     to all applications filed in the United States thereafter.
       3. Paragraph 2 requires that the term of all continuing 
     applications (continuations, continuations-in-part and 
     divisionals), filed six months after enactment of the above 
     legislation, be counted from the filing date of the earliest-
     filed of any applications invoked under 35 U.S.C. 120.
     Wataru Asou,
       Commissioner, Japanese Patent Office.
     Bruce A. Lehman,
       Assistant Secretary of Commerce and Commissioner of Patents 
     and Trademarks, United States Patent and Trademark Office.

  The CHAIRMAN. The time of the gentlewoman from Ohio [Ms. Kaptur] has 
again expired.
  (On request of Mr. Goodlatte, and by unanimous consent, Ms. Kaptur 
was allowed to proceed for 1 additional minute.)
  Mr. GOODLATTE. Mr. Chairman, if the gentlewoman will continue to 
yield, 45 percent of the patents that are filed in the U.S. Patent 
Office are filed by foreign inventors, and we do not have the 
opportunity to see in the English language what is published by those 
folks.
  Second, no one has addressed the whole point that we have made that 
these inventors get the capital to bring their product to market 
sooner, when you publish sooner, so that entrepreneurs who invest know 
sooner that this is the investment they should put their money behind 
because that is the person who is going to be getting the patent.
  Ms. KAPTUR. Reclaiming my time, Mr. Chairman, nobody is complaining 
about the current system. People like the protection attendant with the 
current system. Inventors are not breaking our doors down and coming 
through the windows asking for these changes. There are a few 
multinational corporations that want to do a little snooping. And they 
are famous for buying out inventions of inventors in this country. You 
know how the current system works. Why would you want to advocate for 
them rather than the vast majority of inventors who want to have their 
rights protected.
  The CHAIRMAN. The time of the gentlewoman from Ohio [Ms. Kaptur] has 
again expired.
  (On request of Mr. Goodlatte, and by unanimous consent, Ms. Kaptur 
was allowed to proceed for 1 additional minute.)
  Mr. GOODLATTE. Mr. Chairman, if the gentlewoman will continue to 
yield, the fact of the matter is we are advocating for the little 
inventor by pointing out the advantages of the system that we have 
elsewhere in the world that benefits them. We have seen how it benefits 
them. It will benefit them here as well.
  I have had many small inventors who have contacted me in support of 
this legislation and, yes, I have had some of those multinational 
corporations you talk about. They file an awful lot of patents as well 
and they want their patents protected under our system as well. That is 
exactly why we need to pass this legislation, to help both.
  Ms. KAPTUR. Mr. Chairman, if what the gentleman says is true, then 
why are all the small business groups of the United States opposed to 
his proposal: the Small Business Legislative Council, the Small 
Business Technology Coalition, the National Association for the Self-
Employed, the National Patent Association, National Small Business 
United. If your idea is so good, then why are the small guys who cannot 
afford suits on the international scene, why are they opposing the 
bill?
  Mr. ROHRABACHER. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, the gentlewoman's points were right on target. I hope 
my colleagues who are following this debate in their offices and those 
people following on C-SPAN and those people reading the Congressional 
Record will note that throughout the debate we have made reference to a 
subterranean agreement with Japan and have indicated that what we see 
here today we believe is nothing more than an attempt to implement this 
agreement, subterranean, hushed-up agreement with the Japanese to 
harmonize our law, make our law like theirs. And you will notice that 
that has never been addressed, nothing has been addressed by the other 
side of this debate to that charge. We make it over and over and over 
again. And I would like the gentleman from Virginia [Mr. Goodlatte] to 
come forward now if he would like to have a colloquy and deny that this 
has something to do with implementing this secret agreement with Japan. 
Mr. Chairman, I thank the gentleman from Virginia [Mr. Goodlatte].
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I note that none of the proponents of H.R. 
400 are willing to stand up and explain about this agreement with Japan 
and how that is driving this debate and what is the relationship 
between that and these.
  Mr. ROHRABACHER. Mr. Chairman, I would challenge Members on the other 
side of this debate to spend their time and their 5 minutes explaining 
to the American people why what they are proposing directly parallels a 
secret agreement that we have made with Japan. They will have time on 
their side to answer that.
  The fact is that the driving force behind this, whether or not the 
members of the committee are themselves committed to this agreement, 
the driving force behind this has been to fulfill this agreement. How 
can you tell? Because there were two avenues to this agreement in 
harmonizing our law with Japan. There were two major factors that made 
American law different than the Japanese law.
  No. 1 was we had a guaranteed patent term, a guaranteed patent term 
which meant no matter how long it takes you to get your patent issued, 
at the end of that time period, would be guaranteed 17 years of patent 
protection and, No. 2, the other aspect of American patent law, since 
the founding of our country, was that there was 

[[Page H1727]]

a right of confidentiality. The inventor had a right, when he applied 
for a patent, that that would be kept secret and, yes, secret really 
meant something to those people and has meant a lot to our 
technological edge throughout the years. They had a right to that until 
the patent was issued.
  This legislation goes in exactly the opposite direction, changes the 
fundamental rules of the game to correspond with this agreement to 
harmonize our law with Japan. This is absolutely, the American people 
should understand that what we are doing is trading a strong system of 
protection that gave us the leverage on all our competitors in the 
world, gave us our own national security because we had the edge 
technologically on our adversaries, we are now changing that to a weak 
system. And where will that weak system take America?
  I would beg to disagree with my esteemed colleague, the gentleman 
from Illinois [Mr. Hyde]. I believe there are people who are out to 
destroy us economically. I believe there are other countries in the 
world and other forces at play in the world that would like very much 
to destroy America's economic prosperity and to put all of those 
billions of dollars in their pocket. I am assuming that they are 
adversaries. I am assuming that our Government should be doing 
everything we can to strengthen the rights of the American people to 
thwart those adversaries overseas that would steal their technology.
  This bill, H.R. 400, I implore my colleagues, please vote against 
this monstrous threat to American security and prosperity. Please 
remember that all the inventors organizations, research departments at 
our major universities, all the Nobel laureates that have been cited on 
this floor are begging us not to pass this bill. It will not in any way 
improve a situation that could not be improved with smaller type 
improvements and reforms. We do not need to destroy the fundamentals of 
the system to reform and make our system better.
  This is the equivalent, this bill, of cutting off our leg in order to 
cure a hangnail. If your doctor says, I am sorry, we have to change the 
fundamental makeup of your body in order to cure that hangnail and we 
are going to cut your leg off, go to another doctor.
  Please, let us not harmonize our law with Japan. God bless the 
gentleman from Virginia [Mr. Goodlatte]. Yes, it has worked maybe one 
way in Europe, but how this system has worked, 18 months with 
publication, how has it worked in Japan? The economic shoguns, the 
people, the elite of Japan have beaten down their people in submission 
every time they have raised their head. The Japanese do not invent 
anything because when an inventor applies for a patent in Japan, he is 
beaten down and his invention is stolen. They will do that to us, too.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the 
requisite number of words.
  I note, I thought it was rather an odd orchestration when my friend 
from Ohio challenged anybody to stand up and respond, and her colleague 
from California then refused to allow anyone to do it. I think we 
should notice that there was a certain reason why no one stood up to 
respond. The gentlewoman from Ohio, she said, why does not someone 
respond? And the answer was, the gentleman from California would not 
let them.
  Mr. Chairman, I yield to the gentleman from Virginia [Mr. Goodlatte].
  Mr. GOODLATTE. Mr. Chairman, I thank the gentleman for yielding to 
me.
  I just want to make the point that the so-called agreement that the 
gentleman refers to is not something that has been honored in any way, 
shape, or form by this Congress or by the Committee on the Judiciary 
that comes forward with this legislation.
  We are a first to invent Nation, not a first to file Nation. That is 
what they want to have. We have always had a number of very significant 
differences in our patent system.
  All we are doing is saying that these are things that help us in this 
country, and we want to modify our system to engage small inventors and 
large inventors in having the opportunity to receive the benefits of 
publication. This is not a battle over trade secrets. There is a 
mechanism to protect trade secrets for anyone who wants to take 
advantage of it. Patents are protected by broadcasting to the whole 
world that an individual has the first to invent, and we should protect 
that by advancing publication where it helps.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, if the gentleman from Virginia's statement 
is correct, then why does H.R. 400 embody the Japanese agreement?
  Mr. FRANK of Massachusetts. Mr. Chairman, let me respond now. First 
of all, I want to congratulate my friend from California. I did not 
realize he had such good intelligence sources, because he has been 
waving around a secret agreement.
  My reaction was to wonder, if it was a secret, where he got it. And I 
do not want to force him to reveal his sources, but apparently the 
gentleman from California has some tentacles into the intelligence 
networks of either America or Japan, because he is privy to secret 
agreements. Frankly I did not think it was that much of a secret, and 
the fact that the gentleman had it did not surprise me. But when he 
waved it around as a secret agreement, I was little bit puzzled.
  I just want to totally disagree with the conspiracy theory here. This 
is a difficult subject in some regards. People who have different 
economic interests may have different views. There is room for 
legitimate intellectual debate here.
  I and others have had some differences with the bill. H.R. 400 today 
is a different bill than it was before. There are some close questions. 
Some of the questions the gentleman from California [Mr. Campbell] 
raised about prior use, I had hoped to work with him further. But this 
is not some conspiracy.
  There was not a secret agreement signed in some tunnel in Tokyo. The 
gentleman from California is refuting me on a secret agreement by 
waving that secret around. I have to say, it is a pretty poor secret 
that falls into the hands of the gentleman from California. It is not a 
secret. There is a discussion of policy. We are making these changes. 
Some of us make changes in this bill without checking with anybody 
else. And the unwillingness to debate the issue on the merits but to 
invoke these kinds of conspiracy theories, I think ill-serves the 
policymaking process.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentlewoman from 
California.
  Ms. LOFGREN. Mr. Chairman, I think that the secret source for 
uncovering this secret agreement has been found. It is the Commerce 
News Press Release for immediate release. It is 1994. The headline is, 
``American Inventors Promised Swifter, Stronger Intellectual Property 
Protection by Japan.``
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, this is 
very sneaky. Not only is the Commerce Department signing secret 
agreements, but they are then publicizing their secret agreements to 
throw people off the track of the fact that they had a secret 
agreement. I think that is an underhandedness that we ought to put an 
end to.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I did not use that term.
  Mr. FRANK of Massachusetts. Mr. Chairman, I understand that. I 
realize the gentlewoman did not say that. That is why I did not say she 
said it. It was the gentleman from California.
  The gentleman from California has been waving this around talking 
about a secret agreement. My friend from California over here has just 
pointed out that this secret agreement was announced. I think we are 
entitled to point out that this was not such a big secret and that 
notion I will stress for this reason. Sure there is reason to debate 
this. I have agreed with some of the points Mr. Rohrabacher made, and I 
have supported some amendments to move it more in his direction, but to 
denounce it in these terms, to talk about secret agreements and to 
invoke conspiracies of people to be beholden to foreign powers to 
undermine American economics is just not a good idea.

[[Page H1728]]

  Ms. KAPTUR. Mr. Chairman, if the gentleman will continue to yield, 
does the gentleman deny that the content of that agreement is now the 
driving mainline inside of H.R. 400? The rollback?
  The CHAIRMAN. The time of the gentleman from Massachusetts [Mr. 
Frank] has expired.
  (By unanimous consent, Mr. Frank of Massachusetts was allowed to 
proceed for 30 additional seconds.)
  Mr. FRANK of Massachusetts. Yes, I deny it, Mr. Chairman. I will tell 
the gentlewoman this, I have been working on this bill. I was 
originally a cosponsor of Mr. Rohrabacher's bill. We made some changes. 
I have met with people in biotech. I have met with people in 
universities, big inventors and small inventors. I have proposed some 
changes. I did not even read the secret agreement. That agreement may 
not be a secret from a lot of people, but it was secret from me. So I 
absolutely deny that in my work on this bill, guided as it has been by 
conversations with Americans, that I was in fact the hidden puppet of 
the emperor of Japan.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Virginia.
  The CHAIRMAN. The time of the gentleman from Massachusetts [Mr. 
Frank] has again expired.
  (On request of Mr. Goodlatte, and by unanimous consent, Mr. Frank of 
Massachusetts was allowed to proceed for 1 additional minute.)

                              {time}  1530

  Mr. GOODLATTE. Mr. Chairman, if the gentleman will continue to yield, 
I want to make the point if this is some conspiracy that came up within 
the last 2 years, it is interesting that U.S. patent commissioners have 
been seeking this change. U.S. patent commissioners of both political 
parties have been seeking this change for 20 years. The Nixon 
administration, the Ford administration, the Reagan administration, the 
Bush administration all sought these changes long before there was any 
so-called secret agreement.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, what we 
finally should do is to give credit to the literary hand that runs us 
all. Clearly this was motivated by the purloined letter, where the way 
to hide it was to leave it out in public, because, apparently, the 
Commerce Department stands accused of having signed a secret agreement 
to govern us all and then nefariously publishing that secret agreement 
to cover their tracks.
  Mr. HUNTER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I wanted to speak just for a minute because the 
gentleman from Virginia [Mr. Goodlatte] made several points about the 
European and the Japanese system and how they have a large number of 
high-technology start-ups. I think that goes right to the essence of 
this publication requirement in the amendment of the gentleman from 
California [Mr. Campbell].
  I want to read a paragraph from a gentleman who is a patent lawyer, 
considered to be an authority on patents. I think it is a very 
excellent summary of the problem with early publication. He says:

       Moreover, if early stage inventions of start-ups, small 
     businesses and individual inventors are prematurely 
     disclosed, the innovators will quickly lose any advantage or 
     headstart to establish financially stronger imitators. Unless 
     start-up businesses can get a strong foothold in the 
     marketplace before infringers appear so that they can afford 
     to assert their patent rights, these rights become virtually 
     worthless.

  He concludes by saying this, and this goes right to the gentleman's 
point, he says, ``These are two major reasons that Japan and Europe 
have virtually no high-technology start-up businesses.''
  Now, I think we should all be proceeding from the same page with 
respect to the facts. As I understand it, and the reason I have this 
graph up here is because this is a factual graph. It shows that the 
United States has 175 Nobel laureates in science and technology; Japan 
has only five and that may be instructive to us here. The information I 
have is that there are almost no high-technology start-up companies.
  That is the lifeblood of the American economy. But in Europe and 
Japan there are almost no high-technology start-up companies, and it is 
because these little companies need running room. They need to be able 
to go out before they get a patent and start lining money up.
  Early publication, according to these inventors that are here, and I 
am quoting one of their letters, early publication will ``kill us.'' 
They will lose the one thing that they have, the secrecy; the one thing 
they can offer, the confidentiality to an investor to get him or her to 
invest money in their particular operation.
  So unless the gentleman from Virginia [Mr. Goodlatte] has information 
to the contrary, my information is that there are almost no high-
technology start-up businesses in Japan and Europe, and that is because 
those countries are production heavy. They are not idea heavy, they are 
production heavy. We have the innovators, we have the creators of 
ideas, and our people need that protection.
  Japanese businesses and European businesses, perhaps legitimately, 
want to aid their industrial base. And the way they aid their 
industrial base is by getting American ideas into the assembly line 
quickly and cheaply, and they can do that with early publication.
  Now, according to the same analyst, the reason there are not a lot of 
high-technology start-ups in Japan is because once a little inventor 
comes out with an idea, and it is not protected by patent when he has 
to publish early, he is immediately flood patented. That means that 
people patent around him by making very incremental changes in his 
idea, so that if he varies the slightest to the left or right from this 
little alley that has been left for him and his invention, he runs into 
Mitsubishi's or Toshiba's patent or some other large company.
  There is a reason why we have 175 Nobel laureates in the United 
States in science and technology, many of whom, as we have discussed on 
the floor, the inventor of the MRI, the inventor of the pacemaker, and 
many others who oppose this bill and support the Rohrabacher 
substitute, our inventors are afraid of early publication and they do 
not want to see it.
  So I would support the enlargement of the publication protection that 
is manifested in the amendment offered by the gentleman from California 
[Mr. Campbell].
  Mr. ROHRABACHER. Mr. Chairman, will the gentleman yield?
  Mr. HUNTER. I yield to the gentleman from California.
  Mr. ROHRABACHER. Mr. Chairman, just a question of the gentleman. He 
mentioned patent flooding, a practice that happens in Japan, where the 
big guys surround the little guys and beat them down trying to steal 
their intellectual property rights.
  If we change our laws exactly like Japan's, to make it just like 
Japan's, which is harmonizing our law, which is the secret agreement, 
and I say secret agreement because I did not know anything about it as 
a Member of Congress. I was a Member of Congress at this time. Probably 
1 out of 100 Members of Congress knew anything about this agreement 
with Japan.
  But if we harmonize our law with Japan, will that not mean that these 
same Japanese companies can come here and do in the United States to 
our little guys what they are doing to their people in Japan?
  Mr. HUNTER. Mr. Chairman, reclaiming my time, I would say to the 
gentleman that that is absolutely right. And the other thing is there 
are big companies that are infringers that, if they had the 
opportunity, would flood patent around a small entrepreneur.
  The CHAIRMAN. The time of the gentleman from California [Mr. Hunter] 
has expired.
  (By unanimous consent, Mr. Hunter was allowed to proceed for 1 
additional minute.)
  Mr. HUNTER. Mr. Chairman, I guess my point is this. We need to get 
some running room, some momentum, the opportunity to go out and line up 
investors before the patent is issued.
  The point that is made by this patent analyst is very good. He said 
unless startup businesses can get a strong foothold in the marketplace 
before infringers appear so that they can afford to assert their 
rights, that means hire lawyers, these rights will become virtually 
worthless.
  It is very easy to spend a lot of money on lawyers early in the 
process. This early publication takes away their running room and their 
ability to

[[Page H1729]]

get a foothold in the investment community and ultimately in the 
marketplace. That is the problem with early publication.
  So I strongly endorse Mr. Campbell's amendment that to some degree 
enlarges publication avoidance rights.
  Mr. ROHRABACHER. Mr. Chairman, if the gentleman will continue to 
yield, one other correction to the statement made by the gentleman from 
Virginia. He stated the Reagan administration sought these changes.
  The CHAIRMAN. The time of the gentleman from California [Mr. Hunter] 
has again expired.
  (By unanimous consent, Mr. Hunter was allowed to proceed for 30 
additional seconds.)
  Mr. HUNTER. Mr. Chairman, I yield to the gentleman if he wants to 
complete his statement.
  Mr. ROHRABACHER. Mr. Chairman, my office has been in contact with 
Clayton Yeutter about these changes that were mandated. I am sorry to 
say to the gentleman that the Reagan administration did not support the 
changes that are being sought in H.R. 400.
  What the gentleman is mistaking is the heads of the Patent Office, 
who were probably working for the Reagan administration and other 
administrations, those former heads of the Patent Office are now living 
on consulting fees and retired from the Government, and they can take 
whatever stand that they need to take.
  Ms. LOFGREN. Mr. Chairman, I move to strike the requisite number of 
words.
  As I have listened here to this very vigorous debate, I have felt 
some concern, because I think there is some confusion that has been 
created, not intentionally I am sure.
  I generally, do not like agreements that are made by any 
administration when the Congress is not in agreement with them. I was 
not a Member of the House of Representatives in 1994, when this 
agreement was entered into. I was happily on the Board of Supervisors 
of Santa Clara County, but I can recall at the time a very vigorous 
discussion in Silicon Valley that I participated in as a public figure 
about whether or not innovators and inventors believed that we should 
change our system to first to file, as opposed to first to invent. And 
it may not be that every part of the country has that kind of vigorous 
spirited debate about patent reform but as the gentleman from 
California [Mr. Campbell] is aware, that is the sort of thing that is 
discussed at home in Santa Clara County, and there were divided 
opinions. I think that for the most part people are very satisfied with 
H.R. 400 in Silicon Valley.
  I wanted to point out that we are not attempting to conform American 
patent law to Japan's laws or the European Union. What we are 
attempting to do is to make sure our innovators have every protection, 
that there is an even playing ground, that innovators are not put at a 
disadvantage.
  I think if one looks at the nature of patent law, and, actually, I 
have had occasion to get a copy of the Japanese patent law and compare 
it to United States patent and copyright laws, and almost word for word 
patent applicants in Japan are required to do what patent applicants in 
the United States and the European Union are required to do.
  Mr. Chairman, I submit for the Record a copy of comparison between 
the Japanese, the United States, and European Community patent law.


                              japanese law

       (4) The detailed explanation of the invention under 
     preceeding subsection (iii) shall state the invention, as 
     provided for in an ordinance of the Ministry of International 
     Trade and Industry, in a manner sufficiently clear and 
     complete for the invention to be carried out by a person 
     having ordinary skill in the art to which the invention 
     pertains.


                                u.s. law

       Sec. 112  Specification.--The specification shall contain a 
     written description of the invention, and of the manner and 
     process of making and using it, in such full, clear, concise, 
     and exact terms as to enable any person skilled in the art to 
     which it pertains, or with which it is most nearly connected, 
     to make and use the same, and shall set forth the best mode 
     contemplated by the inventor of carrying out his invention.


                           european community

       Article 83, Disclosure of the Invention.--The European 
     patent application must disclose the invention in a manner 
     sufficiently clear and complete for it to be carried out by a 
     person skilled in the art.

  I believe it is important that we talk about protecting our own 
people and our own innovators. There has been a lot of discussion that 
somehow the big, bad multinationals are after passage of this bill to 
the detriment of America.
  Well, the National Venture Capital Association members were here last 
week in the Capitol at a meeting, and the venture capitalists, who fund 
the startups, the little guys that are in the garages with the great 
ideas, they are for H.R. 400. They vigorously oppose the amendment 
defeated last week, and they are for small American innovators getting 
a better chance to be successful in America.
  I saw the gentleman from California's chart about Nobel prize winners 
in America vis-a-vis other parts of the world, and it makes me proud 
that we have so many great scientists in our country. I think we all 
have that pride. We want to make sure that we continue to have the 
cutting edge in innovation, that we continue to do better than everyone 
else in the world.
  Whether we agree on all of these amendments or not, I think as 
Americans in this Chamber we all agree we want our country to be 
successful. We want to keep that leading edge, because we know that the 
high technology, high value-added jobs that are represented by the so-
called big, bad multinationals, companies I thought were good guys, 
like Intel, as well as the little bitty guys that are about to be 
funded by venture capitalists, and hopefully fulfill their dream to 
become a big guy like the Intels, that it is in protecting their 
interests vis-a-vis our foreign competitors that our future lies.
  Mr. Chairman, at this point we have had a very long discussion on 
this matter, and I do not want to unduly prolong it. I would just note 
that for those that are concerned about the memorandum entered into in 
1994 between Commissioner Lehman and his counterpart in Japan, it was, 
unfortunately or not, depending on one's point of view, reached quite 
some time ago by the United States, and it is very clear that H.R. 400 
is not really what was envisioned by the agreement although as far as I 
am aware we have gotten the advantage of some of their promises.
  Mr. HYDE. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, I want to direct my remarks to my dear 
friend, the gentleman from California [Mr. Hunter], who is one of the 
great consumers of venison in this or any other Congress.
  I am proud, too, as the gentlewoman from California [Ms. Lofgren] 
stated, of the number of Nobel Prize winners in the United States, but 
I just am uncomfortable with that kind of a chart, because what it 
seems to be saying is that Occidentals are smarter than Asians. It is 
kind of a racial bias to say that some groups, some races, some ethnic 
clusters are smarter than other people. I do not know what else we can 
draw from that.
  I went and looked up all the Nobel Prize winners in chemistry, 
physics, medicine, and physiology from 1981 to 1995, and, yes, the 
United States had 57 percent of them, but 43 percent were foreigners 
from all over the globe. All over the globe.
  Of course, it is a Swedish prize, given up in Stockholm by a group of 
Occidentals, I guess. I would not claim Asiatic bias, and I know they 
know where Japan is, but I would just hesitate saying one group of 
people are just smarter than another group.
  I know that just because someone is paranoid does not mean people are 
not after them. That could be true. But I have detected some awfully 
serious Japan bashing here, and I am surprised, because what we are 
aiming for in H.R. 400 is what the Patent Commissioners of President 
Ford, President Reagan, President Nixon, President Bush all wanted, 18 
months publication, which protects the inventor because he has 
provisional rights as against the world as though he had a patent and 
can enforce it.

                              {time}  1545

  But it forces the foreign inventor who wishes to be protected in our 
country to get published, too, that 45 percent of applications from 
overseas to be published, too. And in addition, those submariners that 
are cruising

[[Page H1730]]

under the bottom have to surface and they cannot seduce other people 
into investing money and then finding they are in the middle of a 
lawsuit.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentlewoman from California.
  Ms. LOFGREN. I just thought as a Swedish American I should speak as 
to the Nobel Prize committee and the number of Americans who are 
awarded Nobel Prizes.
  We know from Silicon Valley that Americans, and as the chairman has 
referenced, come in all stripes and from every part of the globe 
originally. One can walk into any high-tech company in the Silicon 
Valley and it feels like being in the United Nations, but they are all 
good Americans. Many of our Nobel Prize winners are originally of Asian 
descent, and we are proud of them as well.
  Mr. HYDE. I remember Wernher von Braun. He had an accent, but he was 
certainly a brilliant scientist. He came over here. A fellow named 
Einstein did pretty well.
  Mr. HUNTER. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from California.
  Mr. HUNTER. I thank my friend for yielding.
  Let me just say that the gentleman has made my point. My point is not 
that there is any ethnic difference between the Nobel Prize winners 
here and the ones in Japan. In fact, the gentleman was chuckling at my 
pronunciation of a number of these names because there are not many 
Smiths and Joneses on this list. The point is that these people from 
all over the globe came to America for a reason. The reason was they 
got better property rights protection in terms of intellectual property 
than they do in Japan.
  Mr. HYDE. They have freedom in this country. Freedom.
  Mr. HUNTER. The point is you have a different system. It is the 
publication that kills the early innovator, the entrepreneur.
  Mr. HYDE. Will the gentleman agree that once publication occurs at 18 
months, the average patent is issued at 19 months? Would the gentleman 
agree to that?
  Mr. HUNTER. I just got a letter from the Patent and Trademark Office. 
It says fully 30 percent of the patents that are going to be issued are 
not yet issued at 18 months. Will the gentleman agree with that?
  Mr. HYDE. What about provisional rights? Does the gentleman agree 
that there is protection called provisional rights following 
publication? The inventor then says, ``Look, I did this, I invented 
this''?
  Mr. HUNTER. Here is my answer to the gentleman. My answer is that 2 
or 3 percent of royalties, if you can afford the lawyer to get them, 
are no substitute for getting 20 to 30 percent of the action, which is 
what an inventor gets when he lines up the money, the investors, and he 
gets to produce his product himself instead of trying after the fact to 
get partial payment from a company that took his invention.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from Virginia.
  The CHAIRMAN. The time of the gentleman from Illinois [Mr. Hyde] has 
expired.
  (On request of Mr. Goodlatte, and by unanimous consent, Mr. Hyde was 
allowed to proceed for 2 additional minutes.)
  Mr. GOODLATTE. I thank the chairman for yielding. Mr. Chairman, on 
that very point the fact of the matter is those inventors get the 
opportunity to get the capital behind their project, their invention, 
sooner with publication. Because not only are they published but their 
competition is published. So the inventor has the opportunity to say to 
that entrepreneur, that person who is going to put the dollars behind 
him, ``You can put them behind me with confidence.''
  Right now many inventors are complaining to the gentleman from 
California [Mr. Rohrabacher] saying they are worried about the gap 
between 18 months and whenever they get their patent because they will 
not be able to get the capital during that time. The reason they cannot 
get the capital during that time is because they do not know, the 
entrepreneur does not know that they are the ones who are going to get 
it. Under this procedure, they will.
  But I want to address, if I may, the gentleman's very, very asserted 
message that somehow we are attempting to conform our patent laws to 
the Japanese, nothing could be further from the truth, when we take one 
concept that is held by many, many other countries and apply it in this 
legislation to say that somehow we are now harmonizing our patent law 
with the Japanese law. We most certainly are not.
  The United States is a first-to-invent nation. Japan is a first to 
file. The United States has immediate examination. Japan has deferred 
examination. The United States process their patents in 20 months, on 
average. Japan takes 8 years. We have protections for universities who 
publish early. There is no such protection in Japan. And we have, as 
the chairman noted, provisional rights that give additional protection 
for those inventors. They do not have those rights in Japan. We are not 
following the Japanese here. We are leading the way as we always have 
in patent law.
  Mr. PEASE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, last week I learned a lesson at this microphone about 
how quickly 5 minutes pass, particularly when one is being questioned. 
But today in hopes to give an opportunity for those who still have 
brief comments to share as we bring this to a conclusion, I have agreed 
to yield to my colleague from California, and if there are others who 
would like part of that time, please let me know.
  I just wanted to follow up a statement made by the chairman of the 
committee, and that deals with a portion of the bill that has not been 
discussed but which I think is extremely important as we talk about the 
publication at 18 months and the fact that the Patent Office tells us 
that currently the pendency, average pendency time for a patent in this 
country is 21 months. Obviously, more than the 18.
  However, under current law, funds intended for the PTO are being 
diverted to other purposes. Last year, $54 million in funding for the 
PTO was diverted from the PTO to other programs under the budget, and 
for fiscal year 1998 the President's proposed budget will divert $92 
million of the user fees to other areas of the budget. If the PTO were 
allowed to keep those fees which H.R. 400 does allow, the time to 
process patents would be reduced dramatically and this whole discussion 
of whether publication at 18 months is problematic or not would be made 
moot.
  Mr. Chairman, I yield to the gentleman from California.
  Mr. CAMPBELL. Mr. Chairman, I want to thank my friend and colleague 
from Indiana who is especially gracious given that we have parted 
company on some issues of this bill. The reason I asked the gentleman 
to yield is I thought it might be useful to talk about my amendment on 
which we will have a vote.
  The bill as it is now written has an exception. It is a good idea. 
The bill now has an exception for somebody who is not likely to be a 
submariner and who is small. In that case, you do not have to disclose. 
You do not have to publish. It is a good idea.
  The way they tell if you are not a submariner is if you have not yet 
had two Patent Office actions. It is pretty rough justice, but it will 
do. So my amendment says if that is right, if that is how you tell who 
is not a submariner, then you should not have to disclose whatever size 
you are. And if you want to give an exemption for small applicants, 
that is the gentlewoman from Ohio's amendment that will be coming up 
next.
  So if your idea is to help small business, great, vote for the Kaptur 
amendment, and if your idea is that if you have not even had two 
actions from the Patent Office, you are not gaming the system, then you 
should vote for the Campbell amendment.
  I just conclude by noting that that is the very logic in the 
exception provided by the bill itself.
  Mr. PEASE. Mr. Chairman, reclaiming my time, I do oppose the 
amendment offered by my friend from California. I do believe that the 
combination of publication with the rights that attach at the time of 
publication and the funding that would be provided to the PTO in order 
to allow it to advance

[[Page H1731]]

the time that it takes to grant patents outright is the best 
combination for protection of all American inventors, large or small.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from California [Mr. Campbell].
  The question was taken; and the chairman announced that the noes 
appeared to have it.
  Mr. CAMPBELL. Mr. Chairman, I demand a recorded vote.
  The CHAIRMAN. Pursuant to House Resolution 116, further proceedings 
on the amendment offered by the gentleman from California [Mr. 
Campbell] will be postponed.
  Are there further amendments?


                    amendment offered by ms. kaptur

  Ms. KAPTUR. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Ms. Kaptur:
       Page 48, insert the following after line 21:
       ``(C) An application filed by a small business concern 
     entitled to reduced fees under section 41(h)(1) of this 
     title, by an individual who is an independent inventor 
     entitled to reduced fees under such section, or by an 
     institution of higher education (as defined in section 1202 
     of the Higher Education Act of 1965) entitled to reduced fees 
     under such section 41(h)(1) shall not be published until a 
     patent is issued thereon, except upon the request of 
     applicant, or in any of the following circumstances:
       ``(i) In the case of an application under section 111(a) 
     for a patent for an invention for which the applicant intends 
     to file or has filed an application for a patent in a foreign 
     country, the Commissioner may publish, at the discretion of 
     the Commissioner and by means determined suitable for the 
     purpose, no more than that data from such application under 
     section 111(a) which will be made or has been made public in 
     such foreign country. Such a publication shall be made only 
     after the date of the publication in such foreign country and 
     shall be made only if the data is not available, or cannot be 
     made readily available, in the English language through 
     commercial services.
       ``(ii) If the Commissioner determines that a patent 
     application which is filed after the date of the enactment of 
     this paragraph--
       ``(I) has been pending more than 5 years from the effective 
     filing date of the application,
       ``(II) has not been previously published by the Patent and 
     Trademark Office,
       ``(III) is not under any appellate review by the Board of 
     Patent Appeals and Interferences,
       ``(IV) is not under interference proceedings in accordance 
     with section 135(a),
       ``(V) is not under any secrecy order pursuant to section 
     181,
       ``(VI) is not being diligently pursued by the applicant in 
     accordance with this title, and
       ``(VII) is not in abandonment,

     the Commissioner shall notify the applicant of such 
     determination.
       ``(iii) An applicant which received notice of a 
     determination described in clause (ii) may, within 30 days of 
     receiving such notice, petition the Commissioner to review 
     the determination to verify that subclauses (I) through (VII) 
     are all applicable to the applicant's application. If the 
     applicant makes such a petition, the Commissioner shall not 
     publish the applicant's application before the Commissioner's 
     review of the petition is completed. If the applicant does 
     not submit a petition, the Commissioner may publish the 
     applicant's application no earlier than 90 days after giving 
     such a notice.
       ``(iv) If after the date of the enactment of this paragraph 
     a continuing application has been filed more than 6 months 
     after the date of the initial filing of an application, the 
     Commissioner shall notify the applicant under such 
     application. The Commissioner shall establish a procedure for 
     an applicant which receives such a notice to demonstrate that 
     the purpose of the continuing application was for reasons 
     other than to achieve a delay in the time of publication of 
     the application. If the Commissioner agrees with such a 
     demonstration by the applicant, the Commissioner shall not 
     publish the applicant's application. If the Commissioner does 
     not agree with such a demonstration by the applicant or if 
     the applicant does not make an attempt at such a 
     demonstration within a reasonable period of time as 
     determined by the Commissioner, the Commissioner shall 
     publish the applicant's application.
       Page 48, line 22, strike ``(C)'' and insert ``(D)''.
       Page 49, line 16, strike ``(D)'' and insert ``(E)''.
       Page 49, line 17, strike ``(C)'' and insert ``(D)''.
       Page 50, line 2, strike ``(C)'' and insert ``(D)''.
       Strike title V of the bill and redesignate the succeeding 
     title, and sections thereof, and references thereto, 
     accordingly.
       Amend the table of contents accordingly.

  Ms. KAPTUR (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentlewoman 
from Ohio?
  There was no objection.
  Ms. KAPTUR. Mr. Chairman, it is obvious that this patent bill has 
engendered substantial and necessary debate. That means that there are 
some unsolved problems inherent in the basic bill.
  One of the most important issues that we wish to bring up for 
amendment today has to do with the treatment of small business as 
opposed to big business in the base bill. Our amendment would exempt 
small business as defined by the Patent Office itself, 500 or fewer 
employees, based on the fee schedule that they use to distinguish 
between large and small business. It would exempt small business, 
universities, and individual independent inventors from having their 
patents published prior to when that patent is granted. This gets at 
one of the major objections of the opponents to the base bill.
  Our amendment also fixes the submarine problem, which I will discuss 
in a second, but basically it sets up a process that is more fair to 
get at the problem of when a patent has not risen out of the depths of 
the review process, and, third, it strikes the reexamination 
provisions. Because what we do not want to do is to open up more 
litigation for the small inventor that really does not have the deep 
pockets of some of those who very much want to receive some of the 
benefits in the parts of H.R. 400 that we do like.
  So our amendment has three parts to it: It exempts small business, 
universities, and individual independent inventors from having their 
patents published prior to grant. We do this because in the base bill 
the 18-month publication would reveal new ideas to the world technical 
community before that inventor had the patent and, frankly, that is an 
open invitation to stealing, it is an open invitation to copying, and 
it places a much greater burden on that inventor, especially when they 
are small, to protect their invention. Our amendment also is proposed 
because we want to offer the small inventor some leg to stand on, a 
fairer system.
  Our amendment is also offered because we want to make sure that 
foreign corporations and foreign governments do not have easier access 
to American technology as proposed by small inventors, and we want to 
protect from this undue litigation that seems to be burdening our 
system from one end to the other, and why complicate it more under the 
proposed bill?
  I might just point out that in the way the H.R. 400 is currently 
proposed, if you end up defending your patent, that will not happen in 
a court of law. There will not be a jury. There will not be a judge. 
You will be in the Patent Office, this new creature, we do not know 
what it is going to look like yet, and it is going to take a lot of 
money to defend yourself in this new system that is being set up and 
this new entity that is being set up.
  So our effort is to say, look, OK, for those people who want to play 
that game, let them do it, but for the small inventors and the small 
businesses and the university community that do not want to get engaged 
in that system, give them a level playing field to play on as well.
  I might mention that in 1995, the White House Conference on Small 
Business adopted a recommendation which specifically recommended to 
Congress that patent applications remain unpublished until the patent 
is granted. That was the White House Conference on Small Business, a 
large group of people that come in here from across the United States. 
This was an important enough issue that they put it on the agenda of 
the White House Conference on Small Business. They do have legitimate 
concerns. We are only asking those who have already started to repair 
H.R. 400 to please consider this proposal.
  We incorporate in the amendment as well important language to deal 
with the submarine patent issue. The amendment adopts the Rohrabacher 
language in the substitute that was debated last week, and our 
amendment lays out specific exceptions for when a patent can be 
published early, perhaps due to continuous delays, perhaps abandonment, 
perhaps pending more than 5 years, all of the concerns of the 
proponents.
  Mr. ROHRABACHER. Mr. Chairman, will the gentlewoman yield?
  Ms. KAPTUR. I yield to the gentleman from California.

[[Page H1732]]

  Mr. ROHRABACHER. Mr. Chairman, on this particular point, the 
antisubmarine patent language in our bill was the strongest language 
that we could possibly put into the bill. For 2 years I pleaded with 
the other side of this issue, to everyone on the other side, please 
give me the strongest language you can possibly give me, I will include 
it in the bill just so long as it does not eliminate and end the 
guaranteed patent term.
  The CHAIRMAN. The time of the gentlewoman from Ohio [Ms. Kaptur] has 
expired.
  (On request of Mr. Rohrabacher, and by unanimous consent, Ms. Kaptur 
was allowed to proceed for 1 additional minute.)
  Mr. ROHRABACHER. We pleaded and pleaded. Give us anything that will 
satisfy you that we have put the submarine patent issue to bed. We 
begged them, please give us that language. But, no, they would not. 
They would not touch it with a 10-foot pole because their purpose was 
not ending the submarine patent issue.

                              {time}  1600

  We instead, I went to the gentleman from California [Tom Campbell], 
distinguished professor, man respected throughout this body for his 
legal knowledge, and he finally came up with the strongest patent, 
antisubmarine patent language that he could come up with. That is what 
was in the bill. We did that because we did not want people to destroy 
the fundamental patent system or protections that was a guaranteed 17-
year patent system or patent in the name of getting at submarine 
patents. That is like cutting a leg off to get to a hangnail or 
destroying freedom of speech for everybody because there is some 
pornographer out there printing a pornographic magazine.
  No, we have taken care of the submarine patent issue. We have 
included that language.
  The CHAIRMAN. The time of the gentlewoman from Ohio [Ms. Kaptur] has 
expired.
  (By unanimous consent, Ms. Kaptur was allowed to proceed for 1 
additional minute.)
  Ms. KAPTUR. Mr. Chairman, I really appreciate this opportunity 
because I know that the folks that have worked on H.R. 400 have tried 
very hard, and frankly it is a work in progress, and as we work harder, 
it gets better all the time.
  I just wanted to summarize and say on this amendment we really have 
made a legitimate effort to protect the interests of the small 
inventor, the small business, the university inventors, the university 
community that is not satisfied with the base bill. We would ask for 
colleagues' consideration, and I would just end by saying that on the 
reexamination provisions of the base bill, recognize that this is going 
to cause a heavier burden on inventors to defend their patents because 
it gives the right to anyone in the world to submit a request to 
invalidate a U.S. patent at any time in its 17-year life. On this one, 
the big money will win as these patent fights go. Please support the 
Kaptur amendment. Please defend small business, the small inventor and 
the university community where so many of our new ideas come from.
  Mr. CONYERS. Mr. Chairman, I rise in opposition to the amendment 
offered by the gentlewoman from Ohio [Ms. Kaptur].
  Mr. Chairman, first of all, I would like to establish my credentials 
of defending small businessmen and working people as much as anybody 
that is on this floor at this moment. That being said, I want to point 
out that this is not in the interests of small business. So we have a 
little bit of a definitional problem as we approach the Kaptur 
amendment. That is that we both support working people and small 
businessmen except one thinks that this amendment will help small 
businessmen, and myself thinks that it will not help small businessmen, 
and I am going to try to explain for all those in this body that want 
to help small businessmen why the Kaptur amendment is not good, it is 
bad. It is bad for this first reason:
  One, what she has cleverly put into this, or somebody, from lines 6 
to 11 is to bring back the current law that we are changing. The bill 
currently on the floor helps small businessmen. This changes it back 
namely by saying that of the Higher Education Act entitled to reduce 
fees from such section shall not be published until a patent is issued 
thereon except upon the request of the applicant. This just went back 
into the bill that we voted on last week and lifted up this current law 
language.
  This allows submarining. Sub- marining, now known to everybody, is 
bad. We do not want bad stuff in the base bill. This would allow 
submarining and those who would indulge in that, and they are not all 
big businessmen. The businessman on the cover, the picture of the 
businessman who was the No. 1 submariner in the country on the Wall 
Street Journal, was not representing a multinational corporation. He 
was a small businessman.
  Point No. 2: Why do we have an amendment exempting institutions who 
do not wish to be exempted? Why? In whose great wisdom, not on the 
committee, have we decided that universities need to be exempted? Who 
is asking? The answer: Nobody. But it is thought to be a pretty good 
deal.
  It is not a good deal, but not only is it not a good deal, it is not 
desired.
  So for those reasons, the three that I mentioned, I respectfully urge 
a very strong and overwhelming rejection of the amendment of my good 
friend from Ohio's amendment.
  Mr. COBLE. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, the gentleman from the Roanoke Valley said it earlier 
about publication. Some people have made publication the devil. Our 
Constitution provides the grant of a monopoly for a limited time in 
exchange for sharing one's secret with the public. That simplifies a 
definition of the patent law. Today that constitutional exchange is 
being circumvented by whom? By patent submariners.
  Now here we go again. The gentlewoman from Ohio [Ms. Kaptur] has 
reincarnated Mr. Rohrabacher's failed attempt to allow abuses of the 
patent system. This was defeated last Thursday by the House, and I 
again thank each of my colleagues who stood tall with us, and it ought 
to be defeated again. This reminds me of the Cary Grant movie, ``The 
Pink Submarine.'' This is the same submarine, my friends, with a new 
coat of paint. This amendment should really be called an invitation.
  My colleagues all remember Mr. Lemelson, our patent submariner, our 
multimillionaire patent submariner. It reads something like this. 
``Dear Mr. Lemelson,'' or any other prospective patent submariner, 
``You are invited to purposefully delay your application at the Patent 
and Trademark Office for your own benefit to the detriment of the 
American consumer.'' Just as the gentleman from Michigan said, this is 
no friend to small business. ``Don't worry about the phony escape 
clause regarding dilatory tactics. No one can prove it. Time? Oh, as 
long as you want, perhaps 25, 30, 40 years. Place? Unknown. After all, 
your application is a secret so that no one will have the benefit of 
avoiding duplicating your efforts because you can successfully hide 
from them. You are submarining. You are laying low in the bushes. You 
are laying low and playing possum,'' as I said last week. ``Date. The 
date is up to you. You show up when you want to show up. P.S., please 
pass this invitation on to a friend.''
  This license to allow professional litigators to clog our courts and 
stifle American innovators with expensive lawsuits that can end in 
bankruptcy for those who actually hire American workers and invest in 
the economy cuts into the heart of the constitutional charge to 
Congress to offer a limited monopoly to an inventor in exchange for 
sharing secrets. That is right. Publication is a necessary ingredient 
of the process.
  The gentleman from California [Mr. Rohrabacher] the gentlewoman from 
Ohio [Ms. Kaptur], they do not seem to believe that submarining is a 
problem. That is why this amendment contains a loophole big enough to 
drive a submarine through. But let me quote from the Wall Street 
Journal from April 9. Many of my colleagues read it. It describes a new 
class of patent lawyers out to make a business in the submarine 
industry. ``The clear winners,'' writes the Journal, ``so far are the 
lawyers. Mr. Lemelson also employees a small army of them. One of Mr. 
Lemelson's lawyers pretty much

[[Page H1733]]

thanks himself for that, noting an old joke. `One lawyer in town, you 
are broke.' He boasts, `Two lawyers in town, you are rich.' '' The 
article goes on to say that a new breed of intellectual property 
lawyers has emerged, too.
  Many seem to be inspired by Mr. Lemelson's attorney, who pioneered 
the use of contingency fees in patent cases and whose work for Mr. 
Lemelson alone has brought him more than $150 million in fees. You 
think consumers win with this sort of scenario?
  The lawyer's success: He lives in a 15,000 square foot house near 
Aspen, CO, has made the field of submarining a very hot area. Here the 
cover of the American Lawyer Magazine, a picture of Mr. Lemelson's 
lawyer basking in the riches, 150 million bucks that belongs to 
American consumers.
  You bet I am worked up about this. This is indeed a grave problem, 
and it is growing. This amendment, and I will call it Rohrabacher 2, or 
Kaptur 1, or the sequel to Rohrabacher, again works to protect this 
practice which stifles American investment and innovation.
  The CHAIRMAN. The time of the gentleman from North Carolina [Mr. 
Coble] has expired.
  (By unanimous consent, Mr. Coble was allowed to proceed for 2 
additional minutes.)
  Mr. COBLE. I feel obliged to get this into the record before 5 
o'clock, Mr. Chairman. I have worked on this now for almost 5 months. 
When I retire for my evening rest, I am thinking of patents. At early 
morning hours, when I dream, I dream of patents. When the cock crows 
the next morning, I awaken, guess to what? The thoughts of patents.
  And for the first time since last week, I learned of a secret 
Japanese agreement. Oh, yes, there is a secret agreement out. The 
Japanese are going to bash us. Folks, our better argument, the 
gentlewoman from California said it last week, the gentleman from 
Illinois, the chairman of the committee, said it last week, I think the 
gentleman from Massachusetts [Mr. Frank], perhaps the gentleman from 
Michigan [Mr. Conyers] did as well, a better argument could be made 
that your rank and file Japanese inventor, they want to keep it just 
the way it is because, under the present scenario, they have the luxury 
of reviewing publication well in advance over there and then they can 
play possum and lay low because the time runs for a delayed publication 
over here.
  It would be my thinking they are not happy at all with H.R. 400. But 
I want my colleagues to dispel this thought about a secret Japanese 
agreement because there is simply no truth to it.
  I thank everyone who has taken part in this, Mr. Chairman, and I 
thank you. And if I become too emotional, I apologize. But I think I 
would be remiss if I did not feel strongly about it, because we have 
plowed the field time and again and it is time to bring in the harvest 
and head for the barn.
  Ms. LOFGREN. Mr. Chairman, I move to strike the requisite number of 
words.
  I have struggled trying to find some way that I can support the 
amendment of my colleague, the gentlewoman from Ohio [Ms. Kaptur]. My 
colleague asked me to review it, and I regret that I cannot support it.
  I think many of us are striving to reach comity and to work in a 
bipartisan manner, but for this amendment it just cannot happen for me 
and I think that is true for many of us who have worked so long on this 
bill; and the main reason why is that, as others have indicated, it 
continues to permit submarine patents.
  The manager's amendment went a long way toward addressing the issue, 
whether anyone believes it is correct or not, addressing even the 
perception or the anxiety about small inventors, who wanted to not have 
a published application, who are uneasy about the change and updating 
of our law for the information age.
  And I think that that measure is sound and passed by voice vote last 
week. However, to provide that an application could never be published 
or might be published for many, many years later, as could be done with 
the amendment of the gentlewoman from Ohio [Ms. Kaptur] and is 
currently done under our present system, is not acceptable.
  I would point out one thing: I know this was not intended, I am sure, 
by the amendment, but you could, under the amendment, have a foreign 
inventor come to the United States, file an application for a patent in 
the United States only, and end up submarining American inventors. And 
I do not think that is a result that is good for our country.
  I want to mention a particular case, because so much has been said 
about countries in Asia. But the most notorious submarine patentor that 
I have been able to find is a Swedish individual, an alleged inventor, 
Olaf Soderblom, who filed for a United States patent in 1968 and it was 
not issued until 1981, 13 years later.

                              {time}  1615

  The very early years of the patent pending application were spent by 
Mr. Soderblom fighting various battles with other independent U.S. 
patent applicants over who was the first inventor. However, a lot of 
the 13 years were used by Mr. Soderblom's attorney to manipulate claims 
to postpone any action on them.
  Mr. Soderblom never participated in or contributed to the public IEEE 
standards regarding his token ring technologies that he alleged as his 
idea. As he waited with his application just below the surface, the 
rest of the world moved forward and the token ring technologies that 
were really never contemplated by Mr. Soderblom at the time of his 
filing were invented; and fortunately for him or unfortunately for 
America, Mr. Soderblom did get some very excellent American patent 
attorneys.
  Press accounts indicate that he was paid over $100 million for his 
patent, something he never really designed, never used, never 
participated in. And this money came directly from United States 
companies and was deposited into his bank in the Netherlands, 
contributing to our adverse balance of trade.
  Mr. Soderblom has never resided in the United States. He has rarely 
visited the United States. He just came and took our money. 
Unfortunately, the amendment before us would allow that to occur again.
  I also need to discuss the issue of swooping, because it has been 
discussed several times by several speakers.
  Mr. Chairman, one would think by listening to the debate here that 
the small people, and I do not mean small in stature, but people who 
are not rich, people who are just starting out, are at risk under H.R. 
400. The world, as my mother and father used to tell me, is not always 
fair. The truth is that one's ability to protect one's patent from 
swoopers at the time of patent issuance or at the time of publication, 
when rights attach under H.R. 400, is only as good as one's ability to 
step forward, get one's lawyers, stand up for oneself, and protect 
oneself.
  Now, fortunately, we have contingent fee operations in America, and 
there are plenty of attorneys who are willing to protect a good 
American inventor against an infringing Japanese multinational or 
Swedish multinational or whatever. But the truth is if one is not 
willing to fight for one's patent, one does not have any rights that 
will not be trampled on. That is true under the current system of 
publication at patent issuance. It is equally true under the proposed 
protection from the time of publication, 18 months out. I think it is 
important to say that because nothing changes in this regard as the 
result of H.R. 400.
  The CHAIRMAN. The time of the gentlewoman from California [Ms. 
Lofgren] has expired.
  (On request of Ms. Kaptur, and by unanimous consent, Ms. Lofgren was 
allowed to proceed for 2 additional minutes.)
  Ms. KAPTUR. Mr. Chairman, will the gentlewoman yield?
  Ms. LOFGREN. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I wanted to thank the gentlewoman for her 
comments. Our intention is to close any loopholes that may exist on 
submarine patenting, even though that issue is a rather curious one to 
be raised by the committee, because in the last 20 years between 1971 
and 1993, out of 2.3 million patent applications, only 627 have been 
classified as submarine patents; and at least a third of those were 
U.S. Government military secrets. So I find it interesting that the 
gentlewoman spent a great deal of her time talking about submarine 
patents.

[[Page H1734]]

  Our intention is to close any loopholes that might be there, and that 
is why the language is in our amendment.
  Let me also say that our concern is profoundly small inventors, small 
business, and university-based inventors. If the proposal in the base 
bill that early publication is so good for the small inventor and small 
business, why have those inventors and businesses not published before 
the grant of the patent up to now? By current law they have that right. 
So our intention is to protect the small inventor. Please help us do 
that.
  Ms. LOFGREN. Mr. Chairman, reclaiming my time, under current law, if 
one publishes one's patent application in America before the patent is 
issued, one does not have any protection. Under H.R. 400, provisional 
rights attach at the time of publication. So one is protected from the 
time of publication. Under current American law, it would be foolish 
indeed to put oneself out otherwise.
  Secondarily, I understand, and I believe, that the gentlewoman does 
not want to do damage to her country any more than I do. That is not 
what is at issue, as we both recognize. It is a difference of opinion 
over how to proceed, how best to protect our country's inventors.
  It is my judgment that the hundreds of millions of dollars spent by 
U.S. companies, and in some cases individuals, to submariners is indeed 
important. The cited number of 200 does not matter as much as the 
hundreds of millions of dollars.
  Mr. HYDE. Mr. Chairman, I move to strike the requisite number of 
words, and I yield to the gentleman from Michigan [Mr. Conyers].
  Mr. CONYERS. Mr. Chairman, I thank the gentleman from Illinois [Mr. 
Hyde] for yielding.
  If Members feel that they may have heard this debate before 
somewhere, they are absolutely correct. This is precisely what we spent 
several hours doing on the Rohrabacher amendment last week. We did it 
upsidedown, backward, there were short speeches, long speeches, 
ferocious speeches, timid speeches, but it was the Rohrabacher 
amendment. We are now back into it again. We are now rehashing the 
Rohrabacher amendment.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I will not yield, Mr. Chairman.
  Ms. KAPTUR. Mr. Chairman, this is the Kaptur amendment, it is not the 
Rohrabacher amendment.
  Mr. HYDE. Mr. Chairman, I have the time.
  The CHAIRMAN. The gentleman from Illinois [Mr. Hyde] has the time.
  Mr. CONYERS. Mr. Chairman, I will not lecture my distinguished 
colleague from Ohio on the rules of the floor. Please do not interrupt 
me when the chairman of the committee has yielded time.
  Ms. KAPTUR. Mr. Chairman, I would ask the chairman to please yield to 
me.
  The CHAIRMAN. The gentleman from Illinois has the time, and he has 
yielded to the gentleman from Michigan. The gentleman from Michigan is 
recognized.
  Mr. CONYERS. Mr. Chairman, that is the second time the gentlewoman 
has done that.
  Now, this is a rehash. I emphasize, this is the same old stuff. Go 
back and read the Record.


                             Point of Order

  Ms. KAPTUR. Point of order, Mr. Speaker.
  The CHAIRMAN. The gentlewoman will state her point of order.
  Ms. KAPTUR. Mr. Chairman, the gentleman in the well is referencing 
this amendment under the name of another Member. This is an amendment 
offered by the gentlewoman from Ohio [Ms. Kaptur].
  The CHAIRMAN. The gentlewoman may clarify that point in debate but 
has not stated a point of order.
  The gentleman from Michigan [Mr. Conyers] may proceed.
  Mr. CONYERS. Mr. Chairman, let me say that the subject of this 
discussion has been dealt with already under whoever's name we care to 
put it. It is not new information. It is the Record of last week that 
is spread with this.
  As my subcommittee chairman has said, the gentleman from North 
Carolina [Mr. Coble], this brings back playing possum; right? This 
brings back submarining; right?
  Oh, well, if it does, how does that happen? Because in the 
gentlewoman's amendment, the Kaptur amendment, at lines 8, 9, and 10: 
shall not be published until a patent is issued thereon, except upon 
the request of the applicant.
  This now allows small business and universities to indulge in 
submarining, if they choose; it exempts publication, and that takes us 
back to where we came in. That is what the new base bill of the 
committee, after several years' doing, is all about.
  Mr. Chairman, I would say to my colleagues, please, we do not need to 
be going back into this. We need to stop submarining, and this is in 
the interest of small businessmen.
  Final point, and I will yield my time back to the Chairman. If the 
universities needed this, they would have asked us. We have had 
innumerable hearings, and not one university witness has ever said we 
need the Kaptur amendment or any language like it. For those reasons I 
humbly approach the membership to ask them to reject the amendment. I 
thank the gentleman for yielding to me.
  Mr. HYDE. Mr. Chairman, I thank the gentleman. I would just like to 
point out to the gentlewoman from Ohio [Ms. Kaptur], a fine Member of 
this House, that there is form and there is substance. The form is 
certainly the Kaptur amendment. The substance, however, in my 
interpretation, as I read it, is Rohrabacher.
  Why do I say that? Because under the gentlewoman's amendment, 
publication of the pending application could occur only if the 
application has been pending for more than 5 years. Boy, does that 
protect the submariner. Five years. That is a lifetime in the computer 
industry, in the biotechnical industry, in the pharmaceutical industry. 
Five years one can lurk underground, under the surface of the water. 
And there are other conditions which echo the Rohrabacher amendment, 
which we debated last week.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I thank the gentleman for yielding, merely 
to point out that the reviewers of this, the Congressional Research 
Service, all of the other groups, fundamentally said that the base bill 
and our bill, that amendment, were equally good on the submarining 
issue. The substance of our amendment, which is the small business 
provision, my colleague will not talk about doing this debate. My 
colleague is trying to obfuscate the most important part of this 
amendment. Very clever, Mr. Speaker.
  Mr. HUNTER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise to support the Kaptur amendment. A couple of 
points have been made that I think need to be answered in this debate 
on this particular amendment. First, publication, the driving theme of 
the proponents of the bill is that small inventors need them and need 
their language and need H.R. 400. Whether they like it or not, this is 
going to help them.
  Once again the gentleman from Virginia [Mr. Goodlatte] pointed out 
that he thinks publication is going to help small innovators, because 
once they advertise this creation to the world, money will swoop in, 
money will come from the four corners of the globe and they will be 
able to finance their invention with that money.
  Now, the point is, if somebody wants to publish their invention, they 
can do it. They can do it under present law. There is a provision under 
present law so inventors can go out and publicize if they want to.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. HUNTER. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. Mr. Chairman, the point about publication is it is not 
just the choice of the individual inventor but, rather, the publication 
of everyone's patent applications. If no one else has published, then 
the entrepreneur has the assurance that that one being published is the 
one they can put their money behind. If they do not know, if everybody 
else has a choice of publishing or not, we are back to the same old 
submarining, gaming of the system.
  Mr. HUNTER. Mr. Chairman, reclaiming my time, let me just say that 
the gentleman's argument is naive. If one goes into a high-technology 
company today and wants to view some of

[[Page H1735]]

their technology for possible financing, one has to sign a stack of 
nondisclosure agreements.
  Mr. GOODLATTE. Mr. Chairman, if the gentleman will continue to yield, 
just briefly, to say that that is because they do not have the 
protection of the U.S. patent system. Publication gives them the 
provisional right to protection that they do not have when they sign 
that stack of papers.

                              {time}  1630

  Mr. HUNTER. Mr. Chairman, let us walk through what the gentleman just 
said. He said these people are protected once they publish. They are 
not protected, and I will tell the gentleman why. To be able to sue for 
royalties, and that is not 20 or 30 percent of the action, but if 
somebody else publicizes what they have, they have to show that their 
invention, that the invention that came out and was utilized by 
somebody else, was substantially identical to their initial 
application.
  The facts are that when inventors go out and make an initial 
application, that initial application is often much broader than what 
is finally patented. So if they make it too broad, if they make the 
application much broader than the final patent that is awarded and they 
get that final patent, they cannot come in and sue.
  The second thing is that they have to come in and show that they 
actually had notice of what that person was doing, of that publication. 
When you send out patent ideas, these ideas that are being published, 
on the Internet, how are you going to prove that the guy had actual 
knowledge of what you had?
  Last, the whole point that has been made by all these small inventors 
is this: To sue and get a part of the action, even if it is a 2- or 3-
percent royalty, you have to have horsepower. That means you have to 
have money. If you have not had some running room, if you have not had 
the chance while your patent was secret to go out there and line that 
money up, you are never going to be able to do it. That is a fact of 
life. That is why these inventors hold this stuff tight to their 
chests. That is why they have not come on H.R. 400.
  My good friend, the gentleman from Illinois [Mr. Hyde], my fellow 
consumer of venison, posed this debate as something, as a Japan-bashing 
thing, where we are lining up the sons of the Mayflower versus the 
people of Japanese ancestry.
  I would just say to my friend, I am looking at this list of our Nobel 
laureates, like Franco Modigliano and many others. This is a country 
where people of every ethnic origin have come to America, used the 
protection of the patent system to come up with an idea. My friend, the 
gentleman from Illinois, almost deterred me from using my poster again.
  I wonder why it is OK for the gentleman from Virginia to talk about 
Japan and Europe and why we should look at some of their ideas, but if 
somebody disagrees with him it is Japan bashing. I still think this 
poster is instructive.
  Japan is production heavy. They specialize in production. They need 
to get creative ideas into the assembly line. That is why they made the 
agreement with our patent examiner to get our patents published 20 
years after application, rather than 17 years after the patent was 
actually issued. But once again, the small inventors, the Nobel 
laureates, the guys who invented the MRI, the guys who invented the 
pacemaker, those guys are not submariners.
  The CHAIRMAN. The time of the gentleman from California [Mr. Hunter] 
has expired.
  (By unanimous consent, Mr. Hunter was allowed to proceed for 30 
additional seconds.)
  Mr. HUNTER. Mr. Chairman, I think the question everybody has to ask 
the committee is this: You have 2.3 million patents granted since 1973. 
According to the statistics that both sides have cited, there have been 
670 submariners in that period of time, and about 30 percent of those 
were military secrets. That takes us down to less than 400 submariners.
  We have crafted a piece of legislation that will rip away privacy for 
millions of inventors so we can make one guy on the face of a magazine, 
we can take care of that problem.
  The CHAIRMAN. The time of the gentleman from California [Mr. Hunter] 
has again expired.
  (By unanimous consent, Mr. Hunter was allowed to proceed for 30 
additional seconds.)
  Mr. HUNTER. Mr. Chairman, let me just close by saying that the same 
language that was in the Rohrabacher bill is in the Kaptur bill. CRS 
has said that both sides, both types of language, would likely end the 
practice of submarine patents.
  Mr. ROHRABACHER. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, the reason I demonstrably stated and repeatedly stated 
at the end of the debate on the last amendment, that I had begged the 
other side for language to end the submarine patent problem, if Members 
remember, I said over and over again, I for 2 years pleaded with the 
other side of this issue, give me language that will end the submarine 
patent problem and I will put it into my bill, just so long as we do 
not use this problem as an excuse to destroy the fundamental protection 
of our patent system which has been the guaranteed patent term.
  I got nothing in return. I got no answer. To everyone I met I said, 
please give me the language.
  The gentleman from Virginia [Mr. Boucher] negotiated, hopefully in 
good faith, for over a year trying to find language that was 
acceptable. There was nothing acceptable to the other side except 
elimination of the guaranteed patent term.
  Finally the gentleman from California, Tom Campbell came forward and 
said, let us work together and find some really tough language on the 
submarine patent problem and we will put it into your bill, and no one 
will be able to complain.
  In fact, the Congressional Research Service looked at it and said, 
yes, the language you put in there is likely to end the submarine 
patent practice forever, just like H.R. 400 will. The difference 
between our approaches is, of course, we are not amputating the 
patient's leg in order to get to the hangnail. We are not destroying 
freedom of speech in the name of stopping a few pornographers.
  If someone was up here today arguing that we have to end the first 
amendment to the Constitution, we have to change the Bill of Rights, 
because there are going to be some people that take advantage of 
freedom of speech, and our bill is going to have the government check 
all the newspapers and everything that is published beforehand to take 
care of these submarine free speechers, the fact is, you would say, you 
are crazy. You are not going to touch the Constitution in order to get 
the bad guys. We can find out ways of regulating them and controlling 
the problem.
  No; instead, the other side has demanded we obliterate the 
protections that we have had in place since the adoption of the U.S. 
Constitution in order to get at the submarine patent problem. I contend 
that this is a fig leaf that is being used to cover the implementation 
of an agreement that we made with Japan 4 years ago to harmonize our 
law with the Japanese law. That is why there was no compromise 
language. That is why there was nothing they could come back to me and 
say that, no, we do not have to have publication to solve the submarine 
patent problem, we can do something else here. I was open to all those 
other alternatives.
  No, because the purpose of the act is to put publication in our law, 
and the purpose of putting publication in our law is to implement a 
secret agreement, it was secret to me, and I was a Member of Congress, 
with the Japanese to harmonize our system.
  Why do we want to harmonize our law with Japanese law? In Japan, 
which we were talking about here before, they have flooded, and that 
means if the little guy invents something the big guys just make little 
changes in what his patent is all about, because now they know all the 
details because it has been published, and they surround the little guy 
and they beat the little guy into submission and take away his rights. 
That is why nobody ever invents anything in Japan.
  We are inviting these very same economic gangsters, economic shoguns, 
economic godfathers, you name them, whatever they are, the economic 
elite

[[Page H1736]]

of Japan and China and all the rest of the countries who brutalize 
their own people because their people do not have legal protections, we 
are inviting those same elitists to come over here and brutalize our 
people because we are stripping away their protection in the name of 
submarine patents.
  Let me note that all the examples we have heard about submarine 
patents today have been examples from the 1960's and 1970's. The Patent 
Office in the early 1970's put in place, or late 1970's, excuse me, a 
system called the PALMS system. It has already taken care of the 
submarine patent problem. None of the examples they have given have 
taken place since the PALMS system was put into place.
  Furthermore, our legislation, which we have been trying to offer, 
rather than destroying the rights of the American people, will, 
according to the Congressional Research Service, end the practice of 
submarine patenting.
  Please, Mr. Chairman, I urge my colleagues, the little guy, the 
Roscoe Bartletts of this country, the small businessmen, our 
universities and research departments are begging us, please, do not 
publish the secret information that they have been developing before 
they get their patent. They know it is going to be stolen. They know 
they will not have the wherewithal to sue Mitsubishi Corp. or the 
People's Liberation Army in China that would steal their technologies.
  Please oppose H.R. 400 and support the Kaptur amendment.
  Mr. GOODLATTE. Mr. Chairman, I move to strike the requisite number of 
words, and I yield to the gentleman from Illinois [Mr. Hyde], the 
chairman of the committee.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, I think this could be boiled down very 
simply. We have a mind-set that thinks publication is an open door to 
thievery and to stealing our secrets.
  There is another philosophy, it is in our Constitution. It says that 
if you want to get a patent, that gives you exclusive rights to your 
invention for a period of years, and then the tradeoff for that 
exclusivity is disclosure to the world, so the world may benefit from 
this wonderful insight that you have now patented. That is the 
tradeoff.
  Publication is the disclosure so the world may benefit, but 
meanwhile, you have a period of years for which you may exploit fully 
your rights to the patent. That is the tradeoff. Publication is 
protection, because once your idea is published it is notice to the 
world you were there first; you have been there, you have done that, 
and it is yours. If anybody wishes to infringe on your rights, which 
are called provisional rights, not a patent yet but equivalent to a 
patent, they are subject to damages. So you are protected.
  Meanwhile, Mr. Chairman, the foreign inventor, and 45 percent of the 
applications in our country, where we produce all these Nobel 
laureates, most of whom have an accent, not all, most, we then publish 
in our country, as they publish over there, so we all have that so-
called level playing field.
  But the most important thing I want to say, Mr. Chairman, is that we 
have seen that CRS report waved around as often as we have heard about 
hangnails or toenails. I think this argument needs a pedicure, I would 
say to my friend.
  By the way, speaking of the amendment offered by the gentlewoman from 
Ohio [Ms. Kaptur], there is an old Italian saying, you may dress the 
shepherd in silk, he will still smell of the goat.
  Mr. Chairman, the CRS report which the gentleman so proudly has waved 
I would point out has been critiqued by the American Intellectual 
Property Law Association, which represents nearly 10,000 international 
intellectual property lawyers, and they say, for reasons about which we 
can only speculate, H.R. 811, the bill of the gentleman from California 
[Mr. Rohrabacher], as reprised by the gentlewoman from Ohio, 
considerably strengthens the abuse potential of a submariner wishing to 
keep a patent application secret.
  Under one section of H.R. 811, publication of a pending application 
could only occur if the application has been pending for more than 5 
years. We can grow an awful lot of submarines under the water in 5 
years.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. GOODLATTE. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I thank the gentleman for yielding to me. I 
am glad it is not goat skin, based on what has gone on here recently.
  Mr. Chairman, I just wanted to say that the gentleman's explanation 
of how the patent system works today was just excellent.
  Mr. HYDE. I thank the gentlewoman.
  Ms. KAPTUR. What I wanted to ask, though, is if the proposal in H.R. 
400 that the gentleman is promoting is going to be useful, currently if 
publication is going to be such a good idea, early publication for 
small inventors and small business, why have they not published under 
the current law, which they can do if they wish, but they do not do it?
  Mr. HYDE. I would suggest to my friend that if she does not want it 
ever published, she wants to keep it a secret in perpetuity, do not ask 
for a patent. Keep it as a trade secret and get protected under the 
trade secrecy laws.
  But if she wants a patent it has to be published. She is protected 
while it is published, and then the patent protects her, and then the 
world may benefit from her wonderful invention.
  Ms. KAPTUR. Mr. Chairman, if the gentleman will continue to yield, 
you are protected until such time as that patent is issued, and 
certainly with the courts and system we have in place, after that 
patent is granted. What the committee is seeking to do, and why we in 
this amendment try to protect small business and small inventors, is 
lessen the time that they have that protection.
  Mr. HYDE. The gentlewoman protects the submariner. She really 
protects and enhances the submariner.
  Ms. KAPTUR. If the gentleman reads correctly what our amendment does, 
that is only one of five different ways in which we try to get at the 
submarine problem. I think the gentleman is incorrect.

                              {time}  1645

  Mr. HYDE. Mr. Chairman, that 5 years leaps out from the gentlewoman's 
amendment.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the 
requisite number of words.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentlewoman from 
California.
  Ms. LOFGREN. Mr. Chairman, I heard a statement just a few minutes 
ago, and I think it needs to be addressed, that there is nothing 
currently going on by way of the submarine patent issue, that that 
problem was already solved, and the like.
  I had to mention, I did mention last week a letter received by 
Charles Trimble, President and CEO of Trimble Navigation, one of the 
premier firms in Silicon Valley. I just wanted to quote a couple of the 
things he said in his letter.
  He said, From our view inside the Global Positioning System Industry, 
we see no harm to our industry from H.R. 400 and I support this 
legislation. As an inventor, I obtained basic patents, not to make 
money but to ensure that no one else would stop me from using my own 
patent or innovation in commercializing the GPS technology.
  Another reason for obtaining patents is to facilitate the licensing 
of technology to a larger company. The real issue is not only inventing 
a technology but reducing it to practice, generating a commercial 
market and creating a legitimate business activity. This activity is a 
critical backbone of our economy.
  He goes on to say that keeping patents unpublished or submarining 
until there is an emerging commercial industry that can be held hostage 
to costly and unnecessary lawsuits is a serious competitive threat to 
U.S. industries. And then, in fact, and this was dated March 11, 1997, 
Our industry is currently, he says, diverting significant amounts of 
money to combat a submarine patent that will most likely be proven not 
to read on our technology. This is a very sensitive issue.
  He is saying that this is not a large company versus a small company 
issue. This is an issue about who can get hot-shot patent lawyers to 
continue to press for money that they do not deserve, did not earn and 
are extorting.
  Mr. FRANK of Massachusetts. Mr. Chairman, let me say, I am about to

[[Page H1737]]

yield to the senior ranking member, but I did want to alert Members 
that the vote is at 5 and the test on this for all Members will be 
given tomorrow morning.
  Mr. CONYERS. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Michigan.
  Mr. CONYERS. Mr. Chairman, to the gentleman from California [Mr. 
Rohrabacher], our distinguished colleague, it has just been discovered 
that there is no secret conspiracy.
  Mr. CAMPBELL. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in order to allow the author of this amendment 
the chance to close. I wish to take 30 seconds before yielding the 
remaining amount of my time to observe that our distinguished chairman 
of the full committee did omit the other provision of Ms. Kaptur's 
amendment. It was not simply the 5-year provision. There is also the 
provision that I drafted which requires publication for anyone who 
seeks to continue the patent application process, which is exactly the 
submariner.
  Ms. KAPTUR. Mr. Chairman, will the gentleman yield?
  Mr. CAMPBELL. I yield to the gentlewoman from Ohio.
  Ms. KAPTUR. Mr. Chairman, I thank the gentleman. I wish to ask the 
Members to please read the substance of our amendment. The sidetracks 
that this debate has gone down this afternoon have amazed even me.
  I wanted to state for the Record that there are many university 
scholars, inventors, lists long that have written us in support of our 
legislation against the base bill and, of course, many of them are in a 
precarious position because those universities receive funds from some 
of the very same interests that are promoting H.R. 400 and in many ways 
not being sensitive to the smaller inventors, the smaller businesses, 
those individual inventors that we wish to protect and give fair 
standing to as this measure moves forward.
  Our amendment essentially would attempt to protect those inventors' 
patents prior to issuance. We do not want any invitation to copy, which 
H.R. 400 certainly promotes, because it says that within 18 months, 
that patent would be published even before it is granted.
  Right now an individual is protected until the time that the patent 
is issued, until it is granted. So it is a substantial collapsing of 
the protection time for an individual inventor.
  I find it so interesting to listen to the proponents say, well, in 
our system you can litigate. That is easy for a big corporation. IBM, 
Xerox, Ford Motor, why they are some of the best friends of this 
country in the jobs that they provide, and so forth. But the point is 
they are not the only inventors around. There are a lot of small 
workshops. There are a lot of professors that are out there filing. 
There are a lot of independent inventors who do not have the kind of 
financial wherewithal to function in the system that is being created 
here.
  It is no different than the battle between the megabanks and the 
credit unions. It is no different than the battles that we have between 
the Committee on Commerce and the Committee on Small Business. It is 
the very same issue for small inventors, for independent inventors, and 
those who are not independent, who have other sources of finance to 
back up whatever it is they are trying to protect and advance through 
that Patent Office.
  So our amendment essentially exempts small business under the 
definition of the Patent Office. It says, hey, look, give them equal 
footing. Do not make them play under this system, which is very 
difficult for the small inventor to cough up the cash for. It does not 
subject them to the kind of litigation that is likely to be involved 
here where it is more likely that their ideas and their patent will be 
infringed upon through the processes that are being promoted in the 
base bill.
  Our measure also would try to acknowledge that the base bill does not 
distinguish between large and small inventors. So it really is an 
equity question for us.
  We would ask Members to support the Kaptur amendment to create a 
level playing field, support the small business person. Support the 
small inventor. Support your colleges and universities. Support the 
little guy. Do the right thing. Make this bill better.
  I know the chairman of the full committee wants to do that. I know 
the ranking member wants to do that. The Kaptur amendment accomplishes 
that.
  The CHAIRMAN. The question is on the amendment offered by the 
gentlewoman from Ohio [Ms. Kaptur].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.
  Ms. KAPTUR. Mr. Chairman, I demand a recorded vote.
  The CHAIRMAN. Pursuant to House Resolution 116, further proceedings 
on the amendment offered by the gentlewoman from Ohio [Ms. Kaptur] will 
be postponed.
  Are there further amendments?


                    amendment offered by mr. hunter

  Mr. HUNTER. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Hunter:
       Page 4, strike line 1 and all that follows through page 26, 
     line 9 and insert the following:

             TITLE I--PATENT AND TRADEMARK SYSTEM REVISIONS

     SEC. 101. SECURE PATENT EXAMINATION.

       Section 3 of title 35, United States Code, is amended by 
     adding at the end the following:
       ``(f) All examination and search duties for the grant of 
     United States letters patent are sovereign functions which 
     shall be performed within the United States by United States 
     citizens who are employees of the United States 
     Government.''.

     SEC. 102. PATENT AND TRADEMARK EXAMINER TRAINING.

       (a) In General.--Chapter 1 of title 35, United States Code, 
     is amended by adding at the end the following new section:

     ``Sec. 15. Patent and trademark examiner training

       In General.--All patent examiners and trademark examiners 
     shall spend at least 5 percent of their duty time per annum 
     in training to maintain and develop the legal and 
     technological skills useful for patent or trademark 
     examination, as the case may be.
       ``(b) Trainers of Examiners.--The Patent and Trademark 
     Office shall develop an incentive program to retain as 
     employees patent examiners and trademark examiners of the 
     primary examiner grade or higher who are eligible for 
     retirement, for the sole purpose of training patent examiners 
     and trademark examiners who have not achieved the grade of 
     primary examiner.''.
       (b) Clerical Amendment.--The table of contents for chapter 
     1 of title 35, United States Code, is amended by adding at 
     the end the following:

``15. Patent and trademark examiner training.''.

     SEC. 103. LIMITATIONS ON PERSONNEL.

       Section 3(a) of title 35, United States Code, is amended by 
     adding at the end the following: ``The Office shall not be 
     subject to any administratively or statutorily imposed 
     limitation on positions or personnel, and no positions or 
     personnel of the Office shall be taken into account for 
     purposes of applying any such limitation.''.
       Page 26, line 10, strike ``121'' and insert ``104''.
       Page 28, line 15, strike ``122'' and insert ``105''.
       Page 30, strike line 3 and all that follows through page 
     46, line 23, and insert the following:

     SEC. 106. EFFECTIVE DATE.

       This title, and the amendments made by this title, shall 
     take effect 30 days after the date of the enactment of this 
     Act.
       Amend the table of contents accordingly.

  Mr. HUNTER (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
California?
  There was no objection.
  Mr. HUNTER. Mr. Chairman, this has been a good debate, a robust 
debate on the patent system and whether or not we need to radically 
change the system. I am offering this amendment to move over to the 
personnel side of the issue and talk about it a little bit.
  I want you to consider that the proposal, the idea that property 
rights are extremely precious in the United States and that if you ask 
the average citizen what his most important right is, he would probably 
say it is my right to own my house, my farm, my property, and to have a 
system that ensures that ownership.
  Now, we often have disputes over property rights in the United 
States. We have quiet title actions and other types of actions, when 
you go to court because somebody else or the government disputes your 
claimed absolute ownership of your property. And what Americans want 
when their property rights are in dispute is an excellent judiciary 
with absolute integrity. They

[[Page H1738]]

do not want to have a judiciary that is contracted out. We went over 
and had a rent-a-judge program. They do not want to have a judiciary 
where you may go to a foreign country and contract or exchange judges 
with them, especially if it is an issue where their ownership of your 
property may be a part of the particular issue. We want to have judges 
that are absolutely insulated from politics.
  Now, I think we need exactly the same thing when we are talking about 
intellectual property. We have had a Patent Office, I understand, I 
have done a little investigation, we have not had a scandal regarding 
undue influence in the Patent Office for 160 years. What does that say 
about our patent examiners, those Federal employees who work in the 
Patent Office and basically make decisions that are life or death for 
American citizens, for inventors, for small businesses, for big 
businesses?
  Those people in practical terms award property rights or refuse to 
award property rights. They are quasi-judges. They are a lot like the 
judges who make determinations on real property rights, who make the 
decision as to whether or not you own your house or you own that strip 
of land that your neighbor may contest.
  Well, I have offered an amendment that does several things. It says 
essentially that patent applications, it ensures that patent 
applications will be reviewed by politically insulated, competent, and 
plentiful patent examiners. Let us go through that.
  First, I think the important idea is to have political insulation to 
make sure that you have an absolutely pristine patent examiner corps 
and you do that by making sure that they are U.S. citizens and that 
they are Federal employees. You do not want to contract out judges. 
These folks are quasi-judges.
  Second, it ensures that you are going to have good patent examiners. 
It says that over 5 percent of their duty time must be spent in 
training. We have a lot of very high technology creativity now that is 
being pushed through the Patent Office by American innovators. We need 
to have folks that are up to speed and can apply technical expertise 
that will allow them to make an efficient review of that patent 
application. So my bill or my amendment offers a requirement for 5 
percent of your duty time being spent in training.
  Last, it ensures that you are going to have swift patent issuance, 
that has been an issue today, and office flexibility by lifting a 
mandated full-time employee cap from the Patent and Trademark Office.
  The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). The time of the 
gentleman from California [Mr. Hunter] has expired.
  Mr. HUNTER. Mr. Chairman, I ask unanimous consent to proceed for 1 
additional minute.
  The CHAIRMAN pro tempore. Is there objection to the request of the 
gentleman from California?
  Mr. CONYERS. Mr. Chairman, I object.
  The CHAIRMAN pro tempore. Objection is heard.
  Mr. CONYERS. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I just want to explain to the gentleman from 
California, [Mr. Hunter] that he has had 5 minutes. I get 3. I am not 
giving him any more time. I am not yielding.
  Mr. Chairman, I object to this amendment. This amendment contains a 
number of restrictions on how the tradeoffs can operate, including the 
types of search files the office should use, the amount of training 
examiners should receive, where and by whom the patent application 
should be examined. It imposes restraints on executive branch 
negotiations with other nations on patent law.
  Is this serious? We are going to, in an amendment that all debate 
concludes on in 8 minutes, we are now going to limit the executive 
branch of Government's ability to negotiate with other nations on 
patent law.
  This would eliminate the operational flexibilities and management 
stability of the Government corporation which would be created in H.R. 
400. I guess that means it guts the bill.
  So here we go. We have had about 4 amendments. I am not impatient 
with this mode of debate and the secret agreements that nobody knows 
about, the conspiracy that is motivating the movers of H.R. 400. But it 
is a little trying.
  Ms. LOFGREN. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentlewoman from California.
  Ms. LOFGREN. Mr. Chairman, in my reading of the amendment, I believe 
it is very clear from the plain words of the amendment that the Patent 
and Trademark Office current search files would need to be maintained. 
I think what this means, in a practical manner, is that the current 33 
million documents search files that are on paper would need to be 
maintained forever.
  I think, although I presume not intended, that would be a very 
serious problem for our country when we think about what we can 
accomplish with computerization, especially dealing with massive 
amounts of data. So I think that that unintended consequence, if for no 
other reason, should lead us all to oppose this amendment. I do not 
know whether the chairman of the subcommittee wished to be recognized 
for the remainder of my time.
  Mr. CAMPBELL. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from California.

                              {time}  1700

  Mr. CAMPBELL. Mr. Chairman, I appreciate the gentleman yielding, and 
it is for this purpose. If I could have the attention of the gentleman 
from Michigan.
  Mr. Chairman, I am asking for unanimous consent that 2\1/2\ 
additional minutes be given to the gentleman from Michigan [Mr. 
Conyers] and 2\1/2\ additional minutes be given to the gentleman from 
California [Mr. Hunter].
  The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). Is there 
objection to the request of the gentleman from California?
  Mr. CONYERS. Mr. Chairman, I object.
  The CHAIRMAN pro tempore. Objection is heard. All time has expired.
  The question is on the amendment offered by the gentleman from 
California [Mr. Hunter].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.
  Mr. HUNTER. Mr. Chairman, I demand a recorded vote.
  The CHAIRMAN pro tempore. Pursuant to House Resolution 116, further 
proceedings on the amendment offered by the gentleman from California 
[Mr. Hunter] will be postponed.
  Mr. BARCIA. Mr. Chairman, we have listened to members of this house 
eloquently debate both sides of this issue today and it is apparent 
that almost all agree that there are problems with our current patent 
system. However, we do not agree on how we can correct the problems.
  There are several points on which we all agree and I believe that we 
can and should work on perfecting those provisions to improve, not 
massively alter, our patent system. We agree that we need to prevent 
submarine patents.
  We agree on provisional royalty rights for those who are published. 
Those changes can be made without hurting independent inventors who 
have been the backbone of this country for 200 years.
  We do not need to make massive changes to a system that we can fix. 
Let's address those provisions on which we agree and pass a bill that 
ends abuse of the system. Let us also continue to provide the 
independent inventor the opportunity and financial ability to pursue 
innovative ideas and inventions.
  Some of my colleagues have suggested, quite correctly, that even 
under the current system lawsuits and piracy are possible, even 
prominent. However, this is not an excuse for opening our inventors to 
more of the same. Compounding injustice will not make our Nation 
better.
  Innovation is the cornerstone and strength of our country and we are 
all committed to protecting the intellectual property rights of 
inventors and researchers. We all want to prevent abuses by those who 
would purposely delay applications or use other tactics to artificially 
extend patent protection.
  However, I am opposed to H.R. 400 and any other legislation that 
would allow infringement on intellectual property rights guaranteed by 
our Constitution.
  Mrs. MINK of Hawaii. Mr. Speaker, I rise today to stand up for our 
Nations small businesses and individual investors. With all the data on 
the obstacles small businesses face in our increasingly globally-
oriented marketplace, I am quite dismayed about the changes advocated 
by this bill. While supporters claim this

[[Page H1739]]

bill helps businesses and inventors, closer examination proves 
otherwise. Rather than assisting all businesses and inventors, this 
bill allows large corporations and foreign entities to gain an 
advantage over America's small businesses and individual inventors.
  Proponents of this legislation claim that this bill benefits 
investors and the American society as a whole. They contend that by 
publishing patents in a shorter amount of time, businesses and the 
government will be able to save money from eliminating duplicative 
research. In addition, supporters claim by disclosing the patent 
information in 18 months inventors are compensated for royalties 
earlier in the patent process. Existing law provides that a patent 
applicant must remain confidential until the patent is granted. Do we 
really want to disclose information to our competitors just to 
harmonize our patent laws with international standards?
  Instead of maintaining a system that has been independent and 
encourages American ingenuity for over 200 years, H.R. 400 restructures 
the U.S. Patent & Trademark Office [PTO] by creating a Management 
Advisory Board that reviews the policies, goals, performance, budget 
and user fees of the PTO. This bill will subject the PTO to the 
appropriations process, as well as, Congressional oversight. Mr. 
Speaker we have already seen how special interests in the political 
process can influence the system. This bill not only adds additional 
redtape, but more significantly, it allows politics to influence the 
issuance of a patent. The existing structure already provides 
applicants the objectivity and assurance that they will be given a fair 
opportunity to obtain patents and safeguards intellectual property 
rights.
  During this debate we will be hearing a lot about ``submarine 
patents.'' Proponents of H.R. 400 allege that numerous patent 
applicants purposely delay their patent to keep their inventions 
secret. If submarine patents are as secretive as critics claim, then 
how are we to know the real number of submarine patents that exists? 
Are submarine patents really a problem or is it just a smokescreen to 
dismantle a system that protects the rights of the little guy?
  Another change H.R. 400 seeks is to allow third parties to 
participate in the reexamination process. Under existing law, validity 
of issued patents are challenged and reexamined only by the U.S. Patent 
& Trademark Office. This bill will allow larger corporations and 
wealthier entities to challenge the validity of a patent. As these 
challenges or suits drag on for longer periods, the smaller and less 
affluent businesses or individuals are the ones most negatively 
affected. Once their finances are depleted, the ``deep pockets'' are 
likely to acquire rights to these patents.
  H.R. 400 will hurt our small businesses and inventors. It should not 
pass.


          Sequential Votes Postponed In Committee Of The Whole

  The CHAIRMAN pro tempore. Pursuant to House Resolution 116, 
proceedings will now resume on those amendments on which further 
proceedings were postponed in the following order:
  Amendment No. 1, offered by the gentleman from California [Mr. 
Campbell];
  Amendment No. 2, offered by the gentleman from California [Mr. 
Campbell];
  Amendment offered by the gentlewoman from Ohio [Ms. Kaptur];
  And the amendment offered by the gentleman from California [Mr. 
Hunter].
  The Chair will reduce to 5 minutes the time for any electronic vote 
after the first vote in this series.


                        Parliamentary Inquiries

  Mr. CAMPBELL. Mr. Chairman, is it my understanding that we will go to 
a recorded vote or must I make a point of order about the absence of a 
quorum?
  The CHAIRMAN pro tempore. The Chair will clarify.
  Ms. LOFGREN. Mr. Chairman, parliamentary inquiry. Is it my 
understanding that the first recorded vote is on the Campbell 1 
amendment, to be followed by 5 minute votes on Campbell 2, the Kaptur 
amendment and the like? I could not hear.
  The CHAIRMAN pro tempore. The gentlewoman is correct.


                Amendment No. 1 Offered by Mr. CAMPBELL

  The CHAIRMAN pro tempore. The pending business is the demand for a 
recorded vote on amendment No. 1, offered by the gentleman from 
California [Mr. CampbelL] on which further proceedings were postponed 
and on which the noes prevailed by voice vote.
  The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.


                             Recorded Vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 185, 
noes 224, not voting 24, as follows:

                             [Roll No. 86]

                               AYES--185

     Abercrombie
     Bachus
     Baker
     Baldacci
     Barcia
     Barr
     Barrett (WI)
     Bartlett
     Bass
     Bereuter
     Bilbray
     Bilirakis
     Blumenauer
     Bonilla
     Bonior
     Bono
     Brown (FL)
     Brown (OH)
     Calvert
     Camp
     Campbell
     Chenoweth
     Christensen
     Clayton
     Clement
     Coburn
     Combest
     Condit
     Cook
     Cooksey
     Costello
     Cox
     Coyne
     Crapo
     Cunningham
     Danner
     Davis (VA)
     DeFazio
     Dellums
     Dixon
     Doolittle
     Doyle
     Duncan
     Ehlers
     Emerson
     Engel
     Ensign
     Everett
     Filner
     Foley
     Forbes
     Fowler
     Frank (MA)
     Gallegly
     Gephardt
     Gibbons
     Gillmor
     Goode
     Gordon
     Goss
     Graham
     Green
     Gutierrez
     Hansen
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hobson
     Hoyer
     Hulshof
     Hunter
     Istook
     Jackson-Lee (TX)
     Johnson, E. B.
     Jones
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kildee
     Kim
     King (NY)
     Kleczka
     Klink
     Klug
     Kucinich
     LaHood
     Largent
     LaTourette
     Leach
     Lewis (KY)
     Lipinski
     Livingston
     LoBiondo
     Lucas
     Maloney (CT)
     Manzullo
     Martinez
     Mascara
     McCarthy (NY)
     McCollum
     McDade
     McGovern
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     McKinney
     McNulty
     Menendez
     Metcalf
     Mica
     Miller (FL)
     Mink
     Molinari
     Moran (KS)
     Murtha
     Myrick
     Neumann
     Ney
     Norwood
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pappas
     Parker
     Pascrell
     Paul
     Petri
     Pickering
     Pombo
     Pomeroy
     Porter
     Poshard
     Radanovich
     Rangel
     Regula
     Riley
     Rivers
     Rohrabacher
     Ros-Lehtinen
     Roybal-Allard
     Royce
     Ryun
     Salmon
     Sanchez
     Sanders
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Shadegg
     Smith (MI)
     Smith (NJ)
     Smith, Linda
     Snowbarger
     Solomon
     Stark
     Stearns
     Strickland
     Stump
     Stupak
     Talent
     Tauscher
     Thornberry
     Thune
     Thurman
     Tiahrt
     Traficant
     Upton
     Walsh
     Wamp
     Waters
     Watkins
     Watt (NC)
     Watts (OK)
     Weldon (FL)
     Weygand
     Wolf

                               NOES--224

     Ackerman
     Aderholt
     Allen
     Archer
     Armey
     Baesler
     Barrett (NE)
     Barton
     Bateman
     Becerra
     Bentsen
     Berman
     Berry
     Bishop
     Blagojevich
     Bliley
     Blunt
     Boehlert
     Boehner
     Borski
     Boswell
     Boucher
     Boyd
     Brady
     Brown (CA)
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Canady
     Cannon
     Capps
     Cardin
     Carson
     Castle
     Chabot
     Chambliss
     Clay
     Clyburn
     Coble
     Conyers
     Cramer
     Crane
     Davis (FL)
     Davis (IL)
     Deal
     DeGette
     Delahunt
     DeLauro
     DeLay
     Dickey
     Dicks
     Dingell
     Doggett
     Dooley
     Dreier
     Dunn
     Edwards
     Ehrlich
     English
     Eshoo
     Etheridge
     Evans
     Ewing
     Farr
     Fattah
     Fawell
     Fazio
     Flake
     Foglietta
     Ford
     Fox
     Franks (NJ)
     Frelinghuysen
     Frost
     Ganske
     Gejdenson
     Gekas
     Gilchrest
     Gilman
     Gonzalez
     Goodlatte
     Goodling
     Granger
     Greenwood
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hamilton
     Harman
     Hastert
     Hastings (FL)
     Hefner
     Hilliard
     Hinchey
     Hinojosa
     Holden
     Hooley
     Horn
     Hostettler
     Houghton
     Hutchinson
     Hyde
     Jackson (IL)
     Jefferson
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, Sam
     Kasich
     Kelly
     Kennedy (RI)
     Kennelly
     Kind (WI)
     Knollenberg
     Kolbe
     LaFalce
     Lampson
     Lantos
     Latham
     Lazio
     Levin
     Lewis (CA)
     Lewis (GA)
     Linder
     Lofgren
     Lowey
     Luther
     Maloney (NY)
     Manton
     Markey
     Matsui
     McCarthy (MO)
     McCrery
     McDermott
     McHale
     Meehan
     Meek
     Millender-McDonald
     Miller (CA)
     Minge
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Nadler
     Neal
     Nethercutt
     Northup
     Nussle
     Oxley
     Packard
     Pastor
     Paxon
     Payne
     Pease
     Pelosi
     Peterson (MN)
     Peterson (PA)
     Pickett
     Pitts
     Portman
     Price (NC)
     Pryce (OH)
     Quinn
     Ramstad
     Reyes
     Riggs
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rothman
     Roukema
     Sabo
     Sandlin
     Sawyer
     Schumer
     Scott
     Sensenbrenner
     Serrano
     Sessions
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Skelton
     Slaughter
     Smith (TX)
     Smith, Adam
     Snyder
     Souder
     Spence
     Spratt
     Stabenow
     Stenholm
     Stokes
     Sununu
     Tanner
     Tauzin
     Thomas
     Thompson
     Tierney
     Torres
     Turner
     Vento
     Visclosky
     Waxman
     Weldon (PA)
     Weller
     Wexler
     White

[[Page H1740]]


     Whitfield
     Wicker
     Woolsey
     Wynn
     Young (AK)
     Young (FL)

                             NOT VOTING--24

     Andrews
     Ballenger
     Bryant
     Collins
     Cubin
     Cummings
     Deutsch
     Diaz-Balart
     Furse
     Hoekstra
     Inglis
     Kilpatrick
     Kingston
     Rahall
     Rush
     Sanford
     Schiff
     Smith (OR)
     Taylor (MS)
     Taylor (NC)
     Towns
     Velazquez
     Wise
     Yates

                              {time}  1725

  The Clerk announced the following pairs:
  On this vote:

       Mrs. Cubin for, with Mr. Kingston against.
       Mr. Sanford for, with Mr. Smith of Oregon against.
       Mr. Deutsch for, with Mr. Towns against.

  Messrs. DeLAY, HASTERT, WELLER, and GONZALEZ changed their vote from 
``aye'' to ``no.''
  Messrs. POMBO, CAMP, RYUN, WATTS of Oklahoma, KIM, McGOVERN, Mrs. 
CLAYTON, and Ms. ROYBAL-ALLARD changed their vote from ``no'' to 
``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.


                Announcement by the Chairman Pro Tempore

  The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). Pursuant to the 
rule, the Chair announces that he will reduce to a minimum of 5 minutes 
the period of time within which a vote by electronic device will be 
taken on each additional amendment on which the Chair has postponed 
further proceedings.


                Amendment No. 2 Offered by Mr. Campbell

  The CHAIRMAN pro tempore. The pending business is the demand for a 
recorded vote on the amendment offered by the gentleman from California 
[Mr. Campbell] on which further proceedings were postponed and on which 
the noes prevailed by voice vote.
  The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.


                             recorded vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 167, 
noes 242, not voting 24, as follows:

                             [Roll No. 87]

                               AYES--167

     Abercrombie
     Archer
     Bachus
     Baker
     Baldacci
     Barcia
     Barr
     Barrett (WI)
     Bartlett
     Bass
     Bereuter
     Bilirakis
     Bonilla
     Bonior
     Bono
     Brown (OH)
     Calvert
     Campbell
     Cardin
     Chenoweth
     Christensen
     Clayton
     Clement
     Coburn
     Combest
     Condit
     Cook
     Cooksey
     Costello
     Cox
     Crapo
     Cunningham
     Danner
     Deal
     DeFazio
     DeLay
     Dellums
     Dixon
     Doolittle
     Doyle
     Duncan
     Emerson
     English
     Ensign
     Everett
     Ewing
     Filner
     Foley
     Forbes
     Gallegly
     Gephardt
     Gibbons
     Goode
     Goss
     Graham
     Green
     Gutierrez
     Hall (TX)
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hobson
     Holden
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Istook
     Jones
     Kanjorski
     Kaptur
     Kildee
     King (NY)
     Kleczka
     Klink
     Kucinich
     LaHood
     Largent
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lipinski
     Livingston
     LoBiondo
     Lucas
     Manzullo
     Martinez
     Mascara
     McCarthy (NY)
     McCrery
     McDade
     McHugh
     McInnis
     McIntyre
     McKeon
     McKinney
     McNulty
     Metcalf
     Mica
     Miller (FL)
     Mink
     Molinari
     Moran (KS)
     Myrick
     Neumann
     Ney
     Norwood
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pappas
     Parker
     Pascrell
     Paul
     Petri
     Pickering
     Pombo
     Poshard
     Regula
     Riggs
     Riley
     Rivers
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryun
     Salmon
     Sanders
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Sessions
     Smith (MI)
     Smith (NJ)
     Smith, Linda
     Snowbarger
     Solomon
     Stark
     Strickland
     Stump
     Stupak
     Sununu
     Talent
     Thornberry
     Thune
     Thurman
     Tiahrt
     Traficant
     Walsh
     Wamp
     Waters
     Watt (NC)
     Watts (OK)
     Weldon (FL)
     Weller
     Whitfield

                               NOES--242

     Ackerman
     Aderholt
     Allen
     Armey
     Baesler
     Barrett (NE)
     Barton
     Bateman
     Becerra
     Bentsen
     Berman
     Berry
     Bilbray
     Bishop
     Blagojevich
     Bliley
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Borski
     Boswell
     Boucher
     Boyd
     Brady
     Brown (CA)
     Brown (FL)
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Camp
     Canady
     Cannon
     Capps
     Carson
     Castle
     Chabot
     Chambliss
     Clay
     Clyburn
     Coble
     Conyers
     Coyne
     Cramer
     Crane
     Cummings
     Davis (FL)
     Davis (IL)
     Davis (VA)
     DeGette
     Delahunt
     DeLauro
     Dickey
     Dicks
     Dingell
     Doggett
     Dooley
     Dreier
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Fawell
     Fazio
     Flake
     Foglietta
     Ford
     Fowler
     Fox
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Ganske
     Gejdenson
     Gilchrest
     Gillmor
     Gilman
     Gonzalez
     Goodlatte
     Goodling
     Gordon
     Granger
     Greenwood
     Gutknecht
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hefner
     Hilliard
     Hinchey
     Hinojosa
     Hooley
     Horn
     Hostettler
     Houghton
     Hyde
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E. B.
     Johnson, Sam
     Kasich
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kim
     Kind (WI)
     Klug
     Knollenberg
     Kolbe
     LaFalce
     Lampson
     Lantos
     Latham
     Levin
     Lewis (GA)
     Linder
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Matsui
     McCarthy (MO)
     McCollum
     McDermott
     McGovern
     McHale
     McIntosh
     Meehan
     Meek
     Menendez
     Millender-McDonald
     Miller (CA)
     Minge
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Murtha
     Nadler
     Neal
     Nethercutt
     Northup
     Nussle
     Owens
     Oxley
     Packard
     Pastor
     Paxon
     Payne
     Pease
     Pelosi
     Peterson (MN)
     Peterson (PA)
     Pickett
     Pitts
     Pomeroy
     Porter
     Portman
     Price (NC)
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Rangel
     Reyes
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rothman
     Roukema
     Roybal-Allard
     Sabo
     Sanchez
     Sandlin
     Sawyer
     Schumer
     Scott
     Serrano
     Shadegg
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Skelton
     Slaughter
     Smith (TX)
     Smith, Adam
     Snyder
     Souder
     Spence
     Spratt
     Stabenow
     Stearns
     Stenholm
     Stokes
     Tanner
     Tauscher
     Tauzin
     Thomas
     Thompson
     Tierney
     Torres
     Turner
     Upton
     Vento
     Visclosky
     Watkins
     Waxman
     Weldon (PA)
     Wexler
     Weygand
     White
     Wicker
     Wolf
     Woolsey
     Wynn
     Young (AK)
     Young (FL)

                             NOT VOTING--24

     Andrews
     Ballenger
     Bryant
     Collins
     Cubin
     Deutsch
     Diaz-Balart
     Furse
     Gekas
     Hoekstra
     Inglis
     Kilpatrick
     Kingston
     Rahall
     Rush
     Sanford
     Schiff
     Smith (OR)
     Taylor (MS)
     Taylor (NC)
     Towns
     Velazquez
     Wise
     Yates

                              {time}  1736

  The Clerk announced the following pair:
  On this vote:

       Mr. Sanford for, with Mr. Smith of Oregon against.

  Ms. PELOSI changed her vote from ``aye'' to ``no.''
  Mr. McCRERY changed his vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.


                    Amendment Offered By Ms. Kaptur

  The CHAIRMAN. The pending business is the demand for a recorded vote 
on the amendment offered by the gentlewoman from Ohio [Ms. Kaptur] on 
which further proceedings were postponed and on which the noes 
prevailed by voice vote.
  The Clerk will designate the amendment.
  The Clerk designated the amendment.


                             recorded vote

  The CHAIRMAN. A recorded vote has been demanded.
  A recorded vote was ordered.
  The CHAIRMAN. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 220, 
noes 193, not voting 20, as follows:

                             [Roll No. 88]

                               AYES--220

     Abercrombie
     Aderholt
     Archer
     Bachus
     Baker
     Baldacci
     Barcia
     Barr
     Barrett (WI)
     Bartlett
     Bereuter
     Bilbray
     Bilirakis
     Bishop
     Bonilla
     Bonior
     Bono
     Boyd
     Brady
     Brown (FL)
     Brown (OH)
     Calvert
     Campbell
     Cardin
     Chenoweth
     Christensen
     Clay
     Clayton
     Clyburn
     Coburn
     Collins
     Combest
     Condit
     Cook
     Costello
     Cox
     Cramer
     Crapo
     Danner
     Deal
     DeFazio
     DeLauro
     DeLay
     Dellums
     Dickey

[[Page H1741]]


     Dixon
     Doolittle
     Doyle
     Duncan
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fattah
     Filner
     Foley
     Forbes
     Fowler
     Fox
     Franks (NJ)
     Gallegly
     Gejdenson
     Gephardt
     Gillmor
     Goode
     Gordon
     Goss
     Graham
     Green
     Gutierrez
     Hall (OH)
     Hall (TX)
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hilliard
     Holden
     Hostettler
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Istook
     Jackson-Lee (TX)
     Jefferson
     Jones
     Kanjorski
     Kaptur
     Kildee
     Kim
     King (NY)
     Kleczka
     Klink
     Kucinich
     LaHood
     Largent
     LaTourette
     Lazio
     Leach
     Levin
     Lewis (KY)
     Lipinski
     Livingston
     LoBiondo
     Lucas
     Manzullo
     Martinez
     Mascara
     McCarthy (NY)
     McCrery
     McDade
     McGovern
     McHale
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     McKinney
     McNulty
     Meek
     Menendez
     Metcalf
     Mica
     Millender-McDonald
     Miller (CA)
     Miller (FL)
     Mink
     Molinari
     Moran (KS)
     Moran (VA)
     Murtha
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pappas
     Parker
     Pascrell
     Paul
     Payne
     Pelosi
     Peterson (PA)
     Petri
     Pickering
     Pombo
     Pomeroy
     Porter
     Poshard
     Radanovich
     Rahall
     Rangel
     Regula
     Riggs
     Riley
     Rivers
     Rodriguez
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryun
     Salmon
     Sanders
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Shadegg
     Smith (MI)
     Smith (NJ)
     Smith, Linda
     Snowbarger
     Solomon
     Spence
     Spratt
     Stabenow
     Stark
     Stearns
     Stenholm
     Strickland
     Stump
     Stupak
     Sununu
     Talent
     Tauzin
     Thompson
     Thornberry
     Thune
     Tiahrt
     Torres
     Traficant
     Upton
     Walsh
     Wamp
     Waters
     Watt (NC)
     Watts (OK)
     Weldon (PA)
     Weller
     Weygand
     Whitfield
     Wicker
     Woolsey
     Wynn
     Young (AK)

                               NOES--193

     Ackerman
     Allen
     Armey
     Baesler
     Barrett (NE)
     Barton
     Bass
     Bateman
     Becerra
     Bentsen
     Berman
     Berry
     Blagojevich
     Bliley
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Borski
     Boswell
     Boucher
     Brown (CA)
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Camp
     Canady
     Cannon
     Capps
     Carson
     Castle
     Chabot
     Chambliss
     Clement
     Coble
     Conyers
     Cooksey
     Coyne
     Crane
     Cummings
     Cunningham
     Davis (FL)
     Davis (IL)
     Davis (VA)
     DeGette
     Delahunt
     Dicks
     Dingell
     Doggett
     Dooley
     Dreier
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fawell
     Fazio
     Flake
     Foglietta
     Ford
     Frank (MA)
     Frelinghuysen
     Frost
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gilman
     Gonzalez
     Goodlatte
     Goodling
     Granger
     Greenwood
     Gutknecht
     Hamilton
     Hastings (FL)
     Hefner
     Hinchey
     Hinojosa
     Hobson
     Hooley
     Horn
     Houghton
     Hyde
     Jackson (IL)
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E. B.
     Johnson, Sam
     Kasich
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kind (WI)
     Klug
     Knollenberg
     Kolbe
     LaFalce
     Lampson
     Lantos
     Latham
     Lewis (CA)
     Lewis (GA)
     Linder
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Matsui
     McCarthy (MO)
     McCollum
     McDermott
     Meehan
     Minge
     Moakley
     Mollohan
     Morella
     Nadler
     Neal
     Northup
     Nussle
     Oxley
     Packard
     Pastor
     Paxon
     Pease
     Peterson (MN)
     Pickett
     Pitts
     Portman
     Price (NC)
     Pryce (OH)
     Quinn
     Ramstad
     Reyes
     Roemer
     Rogan
     Rogers
     Rothman
     Roukema
     Roybal-Allard
     Sabo
     Sanchez
     Sandlin
     Sawyer
     Schumer
     Scott
     Serrano
     Sessions
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Skelton
     Slaughter
     Smith (TX)
     Smith, Adam
     Snyder
     Souder
     Stokes
     Tanner
     Tauscher
     Thomas
     Thurman
     Tierney
     Turner
     Vento
     Visclosky
     Watkins
     Waxman
     Weldon (FL)
     Wexler
     White
     Wolf
     Young (FL)

                             NOT VOTING--20

     Andrews
     Ballenger
     Cubin
     Deutsch
     Diaz-Balart
     Furse
     Hoekstra
     Inglis
     Kilpatrick
     Kingston
     Rush
     Sanford
     Schiff
     Smith (OR)
     Taylor (MS)
     Taylor (NC)
     Towns
     Velazquez
     Wise
     Yates

                              {time}  1748

  The Clerk announced the following pairs:
  On this vote:

       Ms. Velazquez for, with Mr. Deutsch against.
       Mrs. Cubin for, with Mr. Kingston against.
       Mr. Sanford for, with Mr. Smith of Oregon against.

  Mr. HOBSON, Mr. LaFALCE, and Ms. SLAUGHTER changed their vote from 
``aye'' to ``no.''
  Messrs. RAHALL, BRADY, McGOVERN, and FOX of Pennsylvania changed 
their vote from ``no'' to ``aye.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.


                          personal explanation

  Mr. WELDON of Florida. Mr. Chairman, during the vote on the Kaptur 
amendment my vote should have been recorded as a ``yea'' vote for the 
amendment. My vote was inadvertently recorded as a ``no'' vote and I 
would like for the Record to show that I was in favor of the Kaptur 
amendment. This amendment will provide small businesses and inventors 
with the protections that they need and deserve.


                    Amendment Offered by Mr. HUNTER

  The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). The pending 
business is the demand for a recorded vote on the amendment offered by 
the gentleman from California [Mr. Hunter] on which further proceedings 
were postponed and on which the noes prevailed by voice vote.
  The Clerk will designate the amendment.
  The Clerk designated the amendment.


                             Recorded Vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. This is a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 133, 
noes 280, not voting 20, as follows:

                             [Roll No. 89]

                               AYES--133

     Abercrombie
     Bachus
     Baker
     Baldacci
     Barcia
     Barr
     Bartlett
     Bilbray
     Bilirakis
     Bonior
     Bono
     Brown (OH)
     Burton
     Calvert
     Campbell
     Chenoweth
     Clement
     Coburn
     Combest
     Condit
     Crapo
     Danner
     DeFazio
     Doolittle
     Doyle
     Emerson
     English
     Ensign
     Everett
     Ewing
     Filner
     Foley
     Forbes
     Gallegly
     Gephardt
     Gibbons
     Goode
     Goodling
     Goss
     Graham
     Gutierrez
     Hall (TX)
     Hansen
     Hayworth
     Hefley
     Herger
     Hill
     Holden
     Hostettler
     Hoyer
     Hulshof
     Hunter
     Istook
     Jackson-Lee (TX)
     Jones
     Kanjorski
     Kaptur
     Kildee
     King (NY)
     Kleczka
     Klink
     Kucinich
     Largent
     LaTourette
     Lewis (KY)
     Lipinski
     LoBiondo
     Lucas
     Manzullo
     Martinez
     Mascara
     McCarthy (NY)
     McHale
     McHugh
     McInnis
     McKeon
     McKinney
     McNulty
     Metcalf
     Mica
     Miller (CA)
     Mink
     Moran (KS)
     Moran (VA)
     Myrick
     Neumann
     Ney
     Norwood
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pappas
     Pascrell
     Petri
     Pombo
     Pomeroy
     Radanovich
     Rahall
     Regula
     Riley
     Rivers
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryun
     Salmon
     Sanders
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sessions
     Skelton
     Smith (NJ)
     Smith, Linda
     Snowbarger
     Solomon
     Spence
     Stark
     Stump
     Talent
     Tiahrt
     Traficant
     Walsh
     Wamp
     Waters
     Watts (OK)
     Weldon (FL)
     Weller
     Whitfield
     Young (AK)

                               NOES--280

     Ackerman
     Aderholt
     Allen
     Archer
     Armey
     Baesler
     Barrett (NE)
     Barrett (WI)
     Barton
     Bass
     Bateman
     Becerra
     Bentsen
     Bereuter
     Berman
     Berry
     Bishop
     Blagojevich
     Bliley
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Bonilla
     Borski
     Boswell
     Boucher
     Boyd
     Brady
     Brown (CA)
     Brown (FL)
     Bryant
     Bunning
     Burr
     Buyer
     Callahan
     Camp
     Canady
     Cannon
     Capps
     Cardin
     Carson
     Castle
     Chabot
     Chambliss
     Christensen
     Clay
     Clayton
     Clyburn
     Coble
     Collins
     Conyers
     Cook
     Cooksey
     Costello
     Cox
     Coyne
     Cramer
     Crane
     Cummings
     Cunningham
     Davis (FL)
     Davis (IL)
     Davis (VA)
     Deal
     DeGette
     Delahunt
     DeLauro
     DeLay
     Dellums
     Dickey
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Fawell
     Fazio
     Flake
     Foglietta
     Ford
     Fowler
     Fox
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Ganske
     Gejdenson
     Gekas
     Gilchrest
     Gillmor
     Gilman
     Gonzalez
     Goodlatte
     Gordon
     Granger
     Green
     Greenwood
     Gutknecht
     Hall (OH)
     Hamilton
     Harman
     Hastert
     Hastings (FL)
     Hastings (WA)
     Hefner
     Hilleary
     Hilliard
     Hinchey
     Hinojosa
     Hobson
     Hooley
     Horn
     Houghton
     Hutchinson
     Hyde
     Jackson (IL)
     Jefferson
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E.B.
     Johnson, Sam
     Kasich
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kim
     Kind (WI)
     Klug
     Knollenberg
     Kolbe

[[Page H1742]]


     LaFalce
     LaHood
     Lampson
     Lantos
     Latham
     Lazio
     Leach
     Levin
     Lewis (CA)
     Lewis (GA)
     Linder
     Livingston
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Matsui
     McCarthy (MO)
     McCollum
     McCrery
     McDade
     McDermott
     McGovern
     McIntosh
     McIntyre
     Meehan
     Meek
     Menendez
     Millender-McDonald
     Miller (FL)
     Minge
     Moakley
     Molinari
     Mollohan
     Morella
     Murtha
     Nadler
     Neal
     Nethercutt
     Northup
     Nussle
     Owens
     Oxley
     Packard
     Parker
     Pastor
     Paul
     Paxon
     Payne
     Pease
     Pelosi
     Peterson (MN)
     Peterson (PA)
     Pickering
     Pickett
     Pitts
     Porter
     Portman
     Poshard
     Price (NC)
     Pryce (OH)
     Quinn
     Ramstad
     Rangel
     Reyes
     Riggs
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rothman
     Roukema
     Roybal-Allard
     Sabo
     Sanchez
     Sandlin
     Sawyer
     Schumer
     Scott
     Sensenbrenner
     Serrano
     Shadegg
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Slaughter
     Smith (MI)
     Smith (TX)
     Smith, Adam
     Snyder
     Souder
     Spratt
     Stabenow
     Stearns
     Stenholm
     Stokes
     Strickland
     Stupak
     Sununu
     Tanner
     Tauscher
     Tauzin
     Thomas
     Thompson
     Thornberry
     Thune
     Thurman
     Tierney
     Torres
     Turner
     Upton
     Vento
     Visclosky
     Watkins
     Watt (NC)
     Waxman
     Weldon (PA)
     Wexler
     Weygand
     White
     Wicker
     Wolf
     Woolsey
     Wynn
     Young (FL)

                             NOT VOTING--20

     Andrews
     Ballenger
     Cubin
     Deutsch
     Diaz-Balart
     Furse
     Hoekstra
     Inglis
     Kilpatrick
     Kingston
     Rush
     Sanford
     Schiff
     Smith (OR)
     Taylor (MS)
     Taylor (NC)
     Towns
     Velazquez
     Wise
     Yates

                              {time}  1757

  The Clerk announced the following pair: On this vote:

       Mrs. Cubin for, with Mr. Kingston against.

  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN pro tempore. Are there other amendments?
  If not, the question is on the committee amendment in the nature of a 
substitute as modified, as amended.
  The committee amendment in the nature of a substitute as modified, as 
amended, was agreed to.
  The CHAIRMAN pro tempore. Under the rule, the Committee rises.

                              {time}  1800

  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Kolbe), having assumed the chair, Mr. LaHood, Chairman of the Committee 
of the Whole House on the State of the Union, reported that that 
Committee, having had under consideration the bill, (H.R. 400) to amend 
title 35, United States Code, with respect to patents, and for other 
purposes, pursuant to House Resolution 116, he reported the bill back 
to the House with an amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on any amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the amendment.
  The amendment was agreed to.
  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

                          ____________________