[Congressional Record Volume 153, Number 194 (Tuesday, December 18, 2007)]
[Senate]
[Pages S15898-S15899]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           PATENT REFORM ACT


                          further improvements

  Mr. LEAHY. Mr. President, I would like to take a moment, along with 
the distinguished Senator from Utah, a longstanding member of the 
Judiciary Committee and a consistent partner of mine on intellectual 
property issues, to discuss S. 1145, the Patent Reform Act of 2007.
  Mr. HATCH. I would be happy to discuss this important issue with my 
good friend from Vermont.
  Mr. LEAHY. First, I want to express my appreciation for my 
colleague's efforts in working to ensure that our patent laws are 
modernized. We first cosponsored patent reform last Congress. We again 
jointly introduced comprehensive patent reform this Congress in the 
form of S. 1145 in April of this year. Both bills had their foundations 
in numerous hearings with the testimony of dozens of witnesses and in 
innumerable meetings with the myriad of interested participants in the 
patent system. The message we heard repeatedly was of the urgent need 
to modernize our patent laws. The leaders of the House Judiciary 
Committee also heeded that call to legislate, and working with them, we 
introduced identical, bipartisan bills. H.R. 1908 was introduced the 
very same day that we introduced the Senate bill.
  In July, after several extensive and substantive markup sessions, the 
Senate Judiciary Committee reported S. 1145 favorably and on a clear 
and strong bipartisan vote. In the course of

[[Page S15899]]

our committee deliberations, a great many changes were made to improve 
and perfect the bill. These improvements included changes on the key 
issues of enhancing patent quality, clarifying rules on infringement 
and compensation of inventors, and improving the ability of the Patent 
and Trademark Office to do its job well.
  Mr. HATCH. I am proud to be a leading cosponsor of patent reform. The 
inventiveness of our citizens is the core strength of our economy. Our 
Founding Fathers recognized the critically important role of patents by 
mandating in article 1, section 8, of the Constitution that Congress 
was to enact a patent law. The Congress has periodically seen fit to 
update the law to ensure it meets the changing needs of both science 
and our economy. But the current law has not seen a major revision 
since 1952. Much has changed since then. The courts have struggled 
valiantly to interpret the law in ways that make sense in light of 
change. but that piecemeal process has left many areas unclear and some 
areas of the law out of balance. So action by the Congress is needed, 
and needed urgently.
  Mr. LEAHY. I agree with my distinguished colleague that now is the 
time to enact patent reform, and we are in good company in that belief. 
Our leadership has committed to taking up S. 1145 as early in the new 
year as possible, and we commend that commitment. I fully recognize 
that when the bill was reported by the Judiciary Committee, a number of 
members expressed a strong view that the bill should be further 
perfected before it comes to a vote on the floor of the Senate. I made 
a commitment to the members of the Judiciary Committee at the markup 
that I would work closely with each of them, and other Members of the 
Senate, to make further improvements in the bill. I reaffirm that 
commitment.

  Mr. HATCH. Thank you. I was among the members of the committee who 
expressed the view that while I believed we were reporting a very sound 
bill, further improvements should be considered. I very much appreciate 
your willingness to work with me and other Senators and very much 
appreciate your commitment.
  Mr. LEAHY. As you and I have discussed, successful enactment of 
patent reform requires the input of all Senators. Over the past months, 
since the committee reported the bill, I have had numerous meetings 
with both members and affected interests. I know you have too. My staff 
has had literally hundreds of meetings and discussions about this 
legislation. In the course of those meetings, it has become clear to me 
that several issues are on the minds of most people: ensuring 
compensation for infringement is fair and adequate; clarifying rules on 
venue; and improving the ability of parties to challenge the validity 
of granted patents through administrative processes.
  Mr. HATCH. I agree with my colleague, further improvements should be 
considered to key provisions of the bill, including damages, postgrant 
review, inequitable conduct defense, and venue.
  Let me just say a few words about the need to make further reforms to 
the inequitable conduct defense. I commend Senator Leahy for working to 
develop an effective solution to the problem of the inequitable conduct 
defense during committee deliberation in July. No doubt he has done a 
good job in initiating this process. We certainly share many 
perspectives on how to reform this area of the law, but I believe more 
must be done to change the use of this defense as an unfair litigation 
tactic.
  I know some have opposed any meaningful changes in this area because 
of how it would affect the generic pharmaceutical industry. As a 
coauthor of the Drug Price Competition and Patent Restoration Act, 
informally known as the Hatch-Waxman Act, I certainly understand the 
generic drug industry, but S. 1145 is an innovator's bill. Unless we 
promote and protect a structure that fosters a strong and vibrant 
environment for innovators, there will be fewer and fewer drugs for the 
generics to manufacture--and all, including patients, will suffer.
  Much like Senator Leahy, my staff and I have met with many interested 
stakeholders and individuals about these provisions, and they have 
stated that further refinements to these four key provisions would 
garner even greater support of S. 1145. I firmly believe that 
compromise on each of these provisions is achievable, and I know that 
my good friend from Vermont would agree.
  Mr. LEAHY. Over the course of early January, I invite you and our 
colleagues to work with me to find viable solutions. It is my intention 
to seek and hear the views of any and all parties and to include all 
interested staff and Senators. This will continue to be an open and 
deliberative process, with the goal of favorable Senate action as early 
as the floor schedule permits. I am committed to a strong and effective 
balanced bill. I know there are some out there who would rather see us 
do nothing and leave the systems now in place or merely codify current 
jurisprudence. I believe that following this course would be shirking 
our responsibility to ensuring the economic strength of our country 
that is built on inventiveness.
  Mr. HATCH. I agree with your intentions and applaud your plan. I 
stand ready to work with you and each of our colleagues. I also agree 
that this should not become an excuse for further delay or for doing 
nothing. Unfortunately, some would like to play political football with 
this bill to pursue other agenda items. Make no mistake: this bill is 
far too important and should not fall prey to such partisan tactics 
from either side. The Senate has a tremendous opportunity and 
responsibility to further strengthen our Nation's competitiveness 
through meaningful patent reform.

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