[Congressional Record Volume 150, Number 135 (Saturday, November 20, 2004)]
[Senate]
[Page S11775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      COOPERATIVE RESEARCH AND TECHNOLOGY ENHANCEMENT ACT OF 2004

  Mr. LEAHY. Mr. President, I am pleased that the House has voted to 
pass the Cooperative Research and Technology Enhancement Act, the 
CREATE Act of 2004, sending this important and needed legislation to 
the White House for the President's signature. This past March, I 
joined with Senator Hatch, Senator Kohl, and Senator Feingold 
introducing the CREATE Act, which will provide a needed remedy to one 
aspect of our Nation's patent laws.
  In 1980, Congress passed the Bayh-Dole Act, which encouraged private 
entities and not-for-profits such as universities to form collaborative 
partnerships that aid innovation. Prior to the enactment of this law, 
universities were issued fewer than 250 patents each year. Thanks to 
the Bayh-Dole Act, the number of patents universities have been issued 
in more recent years has surpassed 2,000--adding billions of dollars 
annually to the U.S. economy.
  The CREATE Act corrects a provision in the Bayh-Dole Act which, when 
read literally, runs counter to the intent of that legislation. In 
1997, the United States Court of Appeals for the Federal Circuit ruled, 
in Oddzon Products, Inc. v. Just Toys, Inc., that non-public 
information may in certain cases be considered ``prior art''--a 
standard which generally prevents an inventor from obtaining a patent. 
The Oddzon ruling was certainly sound law, but it was not sound public 
policy, and as a result some collaborative teams have been unable to 
receive patents for their work. As a consequence, there is a deterrent 
from forming this type of partnership, which has proved so beneficial 
to universities, the private sector, the American worker, and the U.S. 
economy.
  Recognizing Congress' intended purpose in passing the Bayh-Dole Act, 
the Federal Circuit invited Congress to better conform the language of 
the act to the intent of the legislation. The CREATE Act does exactly 
that by ensuring that non-public information is not considered ``prior 
art'' when the information is used in a collaborative partnership under 
the Bayh-Dole Act. The bill that the House passed today also includes 
strict evidentiary burdens to ensure that the legislation is tailored 
narrowly so as only to achieve this goal that--although narrow--is 
vitally important.
  I also wish to draw attention to Senator Hatch's statement of June 
25, 2004, in which he explained some of the more complex issues 
surrounding the CREATE Act. I agree entirely with his comments, which I 
will prove useful for those seeking a background understanding of this 
legislation.
  Again, I thank the House for moving to pass this legislation as the 
108th Congress drew to a close, and I would also like to thank in 
particular Senator Hatch, Senator Kohl, Senator Feingold, Senator 
Grassley, and Senator Schumer for their hard work in gaining this 
bill's passage.

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