[Congressional Record Volume 144, Number 147 (Thursday, October 15, 1998)]
[Senate]
[Pages S12630-S12631]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




AMENDING TITLE 35, UNITED STATES CODE, TO PROTECT PATENT OWNERS AGAINST 
                  THE UNAUTHORIZED SALE OF PLANT PARTS

  Mr. CRAIG. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of H.R. 1197, which was received 
from the House.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 1197) to amend title 35, United States Code, 
     to protect patent owners against the unauthorized sale of 
     plant parts taken from plants illegally reproduced, and for 
     other purposes.

  The Senate proceeded to consider the bill.


                           Amendment No. 3830

   (Purpose: To provide for access to electronic patent information)

  Mr. CRAIG. Mr. President, Senators Leahy, Smith of Oregon, and Hatch 
have an amendment at the desk. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Idaho [Mr. Craig], for Mr. Leahy, for 
     himself, Mr. Smith of Oregon and Mr. Hatch, proposes an 
     amendment numbered 3830.

  The amendment is as follows:

       At the end of the bill add the following:

     SEC. 4. ACCESS TO ELECTRONIC PATENT INFORMATION.

       (a) In General.--The United States Patent and Trademark 
     Office shall develop and implement statewide computer 
     networks with remote library sites in requesting rural States 
     such that citizens in those States will have enhanced access 
     to information in their State's patent and trademark 
     depository library.
       (b) Definition.--In this section, the term ``rural States'' 
     means the States that qualified on January 1, 1997, as rural 
     States under section 1501(b) of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 379bb(b)).

  Mr. LEAHY. Mr. President, I am pleased that the Senate is considering 
the ``Plant Patent Amendments Act of 1998,'' H.R. 1197. This 
legislation closes a loophole in the law by providing patent 
protection, not only for an entire plant, but for parts of a plant as 
well.
  Since the 1930s, U.S. patent law has benefited agriculture, 
horticulture and the public by providing an incentive for breeders to 
develop new plant varieties. This incentive is the availability of 
patents for new plant varieties.
  An unforeseen ambiguity in the law, however, is undermining the 
incentives for breeders holding U.S. plant patents. Because current 
U.S. law only provides patent protection for entire plants, plant parts 
are being traded in U.S. markets to the detriment of U.S. plant patent 
holders. The resulting lost royalty income has been inhibiting 
investment in domestic research and breeding activities associated with 
a wide variety of crops.
  By clearly and explicitly providing that U.S. patent law protects the 
owner of a plant patent against the unauthorized sale of plant parts 
taken from plants illegally reproduced, H.R. 1197 will close the 
existing loophole in the law and will strengthen the ability of U.S. 
plant patent holders to enforce their patent rights.
  Another matter of special interest to me is the amendment that I 
offered to the ``Plant Patent Amendments Act of 1998'' to enhance 
access to all types of patent information. I have long thought that 
electronic access should be more widespread and want to work with the 
United States Patent and Trademark Office (PTO) to ensure the effective 
implementation of statewide electronic accessibility of patent 
information in rural states and eventually in all areas to make it 
easier for inventors to study prior art and make further advances. This 
should be of particular benefit to Vermont, which last year established 
a patent and trademark depository library.
  The Articles of Association of the Vermont Patent and Trademark 
Depository Library (Vermont PTDL) state that the library will ``create 
a vital educational and economic development resource that will provide 
all Vermonters with access to patent and trademark records and 
supporting research materials and reference services.'' At this time, 
however, all Vermonters do not, in a practical sense, have access to 
the wealth of resources at the Vermont PTDL. In fact, it can be as much 
as a four hour drive for certain Vermont citizens to drive to the 
Vermont PTDL at the University of Vermont's Bailey/Howe Library.
  The intent of my amendment, which is cosponsored by Senator Orrin 
Hatch of Utah and Senator Gordon Smith of Oregon, is for the PTO to 
work with the people in the trenches currently operating the patent and 
trademark depository libraries to develop and implement the statewide 
computer networks with remote library sites; it only makes sense for 
the PTO to work with the people who most fully understand the needs of 
the constituents they currently serve and may serve in the future.
  This legislation is timely, because the Senate is considering the 
United States Patent and Trademark Office Reauthorization Act, Fiscal 
Year 1999, H.R. 3723. As the lead Senate Democratic champion for H.R. 
3723, I am hopeful that the Senate will pass this measure today so the 
PTO will not suffer a reduction in revenue for the current fiscal year. 
I am also committed to working with the PTO, now and in the future, as 
it ensures the effective implementation of statewide electronic 
accessibility of patent information in rural states.
  I would like to pay a special thanks to Eric Benson, President of 
Vermont PTDL, former State representative Kerry Kurt, who was 
instrumental in the development of the Vermont PTDL, and everybody who 
serves on the Board of the Vermont PTDL. These Vermonters were the 
inspiration for my amendment, and they have worked hard to make the 
Vermont PTDL an asset of which all Vermonters can be proud.
  Mr. HATCH. Mr. President, I rise today in support of Senate passage 
of H.R. 1197, the Plant Patents Amendment Act of 1997. This 
legislation, passed by the House last Friday, would close a loophole in 
the Patent Act through which foreign infringers are able to exploit the 
products of their infringements within the United States, depriving 
American plant patent owners of millions of dollars in royalties. This 
bill is identical to legislation introduced in the Senate by Senator 
Gordon Smith, and its substantive provisions are mirrored in the 
omnibus patent bill I introduced and which was reported favorably to 
the Senate by the Judiciary Committee last year.
  The development of new plant varieties in the United States is 
encouraged by chapter 15 of the Patent Act, which grants patent-like 
protection to anyone who develops new, distinct varieties of asexually 
reproduced plants. Plant patent owners are rewarded for their ingenuity 
with a limited monopoly that allows them to prevent others from 
asexually reproducing the plant or selling or using a plant so 
reproduced.
  The so-called loophole exists because the sale or use of plant parts 
is not explicitly prohibited. As a result, plant

[[Page S12631]]

patent owners must stand by while their patents are infringed abroad 
and the products of such infringement--for example, fruit or cut 
flowers--are then imported to and sold within the United States, 
without a single dime in royalty revenue to the patent owner. This is 
no small problem. Royalty losses with respect to some key horticultural 
plants have been estimated to reach between $50 to $100 million over 
the past five to ten years. This is money that rightfully should be 
directed to American plant patent owners--many of whom are small 
businesses and family farmers--and which would otherwise contribute 
tremendously to the U.S. economy.
  Enactment of this legislation is not only good for American business 
and the economy, it is consistent with our international treaty 
obligations. The International Convention for the Protection of New 
Varieties of Plants (UPOV) was last revised in March 1991, and the 
United States signed the convention in October 1991. This convention 
provides protection for plant breeders by requiring member countries to 
accord certain plant patent rights, including specifically the right to 
prohibit others from selling, importing, or exporting harvested 
material (i.e., plant parts) derived from unauthorized asexually 
reproduced plants.
  Mr. President, I had hoped to enact this change in the context of a 
comprehensive patent reform bill. I am disappointed that consideration 
of that bill has been blocked by a few senators with unrelated and 
rather non-descript objections, and that we are forced to take this 
measure up as a stand-alone bill. Nevertheless, I am pleased that the 
House has acted on this measure, and I commend the efforts of my 
colleague, Senator Smith, to bring this bill to a vote in the Senate.
  Mr. CRAIG. Mr. President, I ask unanimous consent the amendment be 
agreed to, the bill be considered read a third time and passed, the 
motion to reconsider be laid upon the table, and any statements 
relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3830) was agreed to.
  The bill (H.R. 1197), as amended, was considered read the third time 
and passed.

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