[Congressional Record Volume 157, Number 29 (Tuesday, March 1, 2011)]
[Senate]
[Pages S1030-S1034]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATENT REFORM ACT OF 2011
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 23, which the clerk will report
by title.
The assistant legislative clerk read as follows:
A bill (S. 23) to amend title 35, United States Code, to
provide for patent reform.
Pending:
Leahy amendment No. 114, to improve the bill.
Vitter/Toomey amendment No. 112, to require that the
government prioritize all obligations on the debt held by the
public in the event that the debt limit is reached.
Bennet amendment No. 116, to reduce the fee amounts paid by
small entities requesting prioritized examination under
Three-Track Examination.
Bennet amendment No. 117, to establish additional USPTO
satellite offices.
Lee amendment No. 115, to express the sense of the Senate
in support of a balanced budget amendment to the
Constitution.
Mr. LEAHY. Madam President, yesterday the Senate began debating the
America Invents Act. We adopted the committee amendments, and we
proceeded to have five additional amendments offered to the bill. This
morning I will be offering a managers' amendment, along with the
distinguished Senator from Iowa, Mr. Grassley, that incorporates
additional improvements being made at the suggestions of Senator
Coburn, Senator Schumer, Senator Coons, Senator Bennet, and others.
When we adopt this managers' amendment, I believe we will move very
close to a consensus bill the Senate can and should pass to help create
good jobs, encourage innovation, and strengthen our recovery and
economy.
I ask unanimous consent to have printed in the Record the Statement
of Administration Policy from the Obama administration and the Edward
Wyatt article.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Administration Policy
s. 23--patent reform act of 2011
(Sen. Leahy, D-Vermont, and 11 cosponsors, Feb. 28, 2011)
The Administration supports Senate passage of S. 23. As a
whole, this bill represents a fair, balanced, and necessary
effort to improve patent quality, enable greater work sharing
between the United States Patent and Trademark Office (USPTO)
and other countries, improve service to patent applicants and
the public at the USPTO, and offer productive alternatives to
costly and complex litigation.
By moving the United States to a first-to-file system, the
bill simplifies the process of acquiring rights. This
essential provision will reduce legal costs, improve
fairness, and support U.S. innovators seeking to market their
products and services in a global marketplace. Further, by
providing authority for the USPTO to establish and adjust its
fees to reflect changes in costs, demand, and workload, the
bill would enhance productivity--reducing delay in the patent
application process--and ensure full cost recovery at no
taxpayer expense. Senate passage of this bill is consistent
with the Administration's commitment to support and encourage
innovation that leads to improved competiveness, economic
prosperity, and job growth--without adding a penny to the
deficit.
Finally, the Administration understands that several
stakeholders have suggested that the provisions on damages
and venue are no longer needed in the legislation in light of
recent court decisions in these areas. The Administration
would not object to removal of these provisions from the
final version of the legislation.
The Administration looks forward to continuing to work with
the Congress to craft patent reform legislation that reflects
sound policy and meets the needs of the Nation's innovators.
____
U.S. Sets 21st-Century Goal: Building a Better Patent Office
(By Edward Wyatt, Feb. 20, 2011)
Washington.--President Obama, who emphasizes American
innovation, says modernizing the federal Patent and Trademark
Office is crucial to ``winning the future.'' So at a time
when a quarter of patent applications come from California,
and many of those from Silicon Valley, the patent office is
opening its first satellite office--in Detroit.
That is only one of the signs that have many critics saying
that the office has its head firmly in the 20th century, if
not the 19th.
Only in the last three years has the office begun to accept
a majority of its applications in digital form. Mr. Obama
astonished a group of technology executives last year when he
described how the office has to print some applications filed
by computer and scan them into another, incompatible computer
system.
``There is no company I know of that would have permitted
its information technology to get into the state we're in,''
David J. Kappos, who 18 months ago became director of the
Patent and Trademark Office and undersecretary of commerce
for intellectual property, said in a recent interview. ``If
it had, the C.E.O. would have been fired, the board would
have been thrown out, and you would have had shareholder
lawsuits.''
Once patent applications are in the system, they sit--for
years. The patent office's pipeline is so clogged it takes
two years for an inventor to get an initial ruling, and an
additional year or more before a patent is finally issued.
The delays and inefficiencies are more than a nuisance for
inventors. Patentable ideas are the basis for many start-up
companies and small businesses. Venture capitalists often
require start-ups to have a patent before offering financing.
That means that patent delays cost jobs, slow the economy and
threaten the ability of American companies to compete with
foreign businesses.
Much of the patent office's decline has occurred in the
last 13 years, as the Internet age created a surge in
applications. In 1997, 2.25 patents were pending for every
one issued. By 2008, that rate had nearly tripled, to 6.6
patents pending for every one issued. The figure fell below
six last year.
Though the office's ranks of patent examiners and its
budget have increased by about 25 percent in the last five
years, that has not been enough to keep up with a flood of
applications--which grew to more than 2,000 a day last year,
for a total of 509,000, from 950 a day in 1997.
The office, like a few other corners of the government, has
long paid its way, thanks to application and maintenance
fees. That income--$2.1 billion last year--has made it an
inviting target for Congress, which over the last 20 years
has diverted a total of $800 million to other uses, rather
than letting the office invest the money in its operations.
Applications have also become far more complex, said
Douglas K. Norman, president of the Intellectual Property
Owners Association, a trade group mainly of large technology
and manufacturing companies.
``When I was a young patent lawyer, a patent application
would be 20 to 25 pages and have 10 to 15 claims,'' Mr.
Norman said. A claim is the part of the patent that defines
what is protected. ``Now they run hundreds of pages, with
hundreds, and sometimes thousands, of claims.''
Lost in the scrutiny of the office's logjam, however, was
the fact that the number of patents issued reached a record
last year--more than 209,000, or 29 percent more than the
average of 162,000 a year over the previous four years.
Rejections also hit a high of 258,000--not a measure of
quality, Mr. Kappos said, but a sign of greater efficiency.
Between the backlog of 700,000 patents awaiting their first
action by an examiner and the 500,000 patents that are in
process, a total of 1.2 million applications are pending.
Sitting in his suburban Virginia office, not far from a
model of the light bulb Edison presented for patent in
November 1879 (which was approved two and a half months
later), Mr. Kappos proudly ticked off figures that he said
proved the agency was heading in the right direction.
The backlog has actually declined about 10 percent from a
peak of 770,000 at the end of 2008.
``We were able to work a 13-month year last year,'' he
said, referring to the productivity increase in 2010 over
2009. ``We are processing a far larger workload with the same
number of examiners.''
Still, Mr. Kappos wants to add more than 1,000 examiners in
each of the next two years, a 30 percent increase. Mr.
Obama's 2012 budget calls for a 28 percent increase in
spending, to $2.7 billion, over 2010. In two consecutive
sessions, Congress has defeated a
[[Page S1031]]
bill that would allow the patent office to keep all of the
fees it collects. While another similar effort is under way,
a big staffing increase will not be easy in a climate of
cuts.
Mr. Kappos, a former electrical engineer and lawyer who
joined the patent office in 2009 after 27 years at I.B.M.,
has improved relations with the union representing patent
examiners. He and the union agreed on performance evaluation
measures last year, the first time in 5o years that the
yardsticks had been revised.
``I give David Kappos a good deal of credit for seeing
where the problems have been and being willing to address
them,'' said Robert D. Budens, president of the union, the
Patent Office Professional Association. ``I think it's a
little early to see the full extent of the changes. But we
have seen an increase in morale and a decrease in attrition,
which is now almost the lowest it's been since I came here''
in 1990.
Patent applications come from all over the United States,
and the office has forgone satellite offices--until now. Last
year, the office announced it would put about 100 examiners
in Detroit. Some prominent lawmakers from Michigan have
worked on patent issues, including Representative John
Conyers Jr., a Detroit Democrat who, when the decision was
made, was chairman of the House Judiciary Committee, which
oversees patents.
Mr. Kappos said he chose Detroit because it had large
communities of patent lawyers and agents, nearby universities
and transportation centers, and relatively low costs of
living and real estate. ``Detroit has long been an innovation
center,'' he said. ``It's undervalued, and that is where we
want to invest.'' He said it would also attract a work force
with more varied skills.
Mr. Kappos is also pushing an initiative that would charge
patent applicants a higher fee to guarantee that their
applications will receive a ruling within a year. But that
initiative and others are not enough, said Paul R. Michel,
who recently retired as chief judge for the United States
Court of Appeals for the Federal Circuit in Washington, the
main forum for patent appeals.
``The office can't be made efficient in 18 months without a
vast increase in finances,'' said Mr. Michel, who has made
evangelizing for an overhaul of the office a pet cause.
``Small efficiency improvements will only make a small
difference in the problem.''
Mr. LEAHY. I thank all of those with the administration who worked on
the matter, and particularly Secretary Locke, Director Kappos of the
Patent and Trademark Office, and former Secretary Daley, now Chief of
Staff at the White House.
The statement describes the bill as representing a fair, balanced,
and necessary effort to improve patent quality. It concludes: ``Senate
passage of this bill is consistent with the Administration's commitment
to support and encourage innovation that leads to improved
competitiveness, economic prosperity, and job growth--without adding a
penny to the deficit.''
It also notes that transition to a first-to-file system simplifies
the process of acquiring rights and describes it as an ``essential
provision [to] reduce legal costs, improve fairness, and support U.S.
innovators seeking to market their products and services in a global
marketplace.''
I agree. I believe it should help small and independent inventors. On
President's Day, just over a week ago, the New York Times included an
article on its front page entitled ``U.S. Sets 21st-Century Goal:
Building a Better Patent Office.''
That is what we are trying to do with our bill, the bipartisan Leahy-
Grassley-Hatch Patent Reform Act or, as it has become known, the
America Invents Act. We have to reform our patent office and our patent
laws. They have not been updated for 60 years. We have to help to
create good jobs, encourage innovation, and strengthen our economy.
The reporter notes the growth in patent applications to more than
2,000 a day last year. That is not a typographical error--2,000 a day
last year. A record 209,000 patents were issued in 2010. But there
remains a backlog of 700,000 patents awaiting initial action at the
U.S. Patent and Trademark Office, and another 500,000 being processed.
That is 1.2 million applications in the pipeline. Among them could be
the next medical miracle, the next energy breakthrough, the next leap
in computing ability, the next killer app. We should all do what we can
to help PTO Director Kappos and the dedicated women and men of the PTO
to modernize and reform.
It makes no sense that it takes 2 years for an inventor to get an
initial ruling on his or her patent application, then another year or
more to get the patent.
As New York Times reporter Edward Wyatt notes:
The delays and inefficiencies are more than a nuisance for
inventors. . . . [P]atent delays cost jobs, slow the economy,
and threaten the ability of American companies to compete
with foreign businesses.
We are not going to be the leader we are today if we allow that to
continue. But the Senate has before it bipartisan legislation that can
lead to long-needed improvements in our patent laws and system. We
should be focused on it and moving ahead to pass it without delay. It
is a measure that can help facilitate invention, innovation, and job
creation, and do so in the private sector. This can help everyone from
startups and small businesses to our largest cutting-edge companies.
This is the time for the Senate to serve the interests of the
American people by concentrating on the important legislation before
us. We should not be distracted. It is a bipartisan bill. We should not
be diverted into extraneous issues but focus our debate on those few
amendments that Senators feel need to be debated to perfect this bill
and which are germane to this bill.
I mentioned in my opening statement the anticipated amendment on fee
diversion. I appreciate the efforts of the Senator from Oklahoma to end
patent fee diversion. It is a reform that Senator Hatch and I have long
supported. I appreciated him working with me and withholding his
amendment during committee consideration. So we are incorporating his
amendment in the managers' amendment.
We also incorporate in the managers' amendment an amendment from
Senator Schumer that concerns business method patents. We provide a
process for their reexamination by the Patent and Trademark Office.
This would also improve patent quality.
We incorporate suggestions from Senator Bennet and Senator Coons to
remove certain damages and venue provisions that are no longer
necessary in light of recent court decisions. The administration noted
in its statement that it would not object to the removal of these
provisions.
Senator Bennet came forward last night with sound amendments that he
explained. They are included in this amendment, along with the change
to the definition of a ``microentity'' made at the suggestion of the
majority leader, and my amendment to conform the name of the
legislation to the America Invents Act. I hope we adopt this amendment
without delay.
I understand there may be Senators who do not agree with the first-
to-file reform to update and simplify our system. If they intend to
bring an amendment, they should do so without delay. We should be able
to complete action on this bill today or tomorrow. Then the Senate can
turn its full attention to another important matter, the funding
resolution needed to be enacted this week by Congress. What we should
not do is delay or sacrifice the job-creating potential of this bill to
a side debate about the debt limit or whether we amend the Constitution
of the United States. Those are debates I will be happy to have in
their own right. We must not allow other countries around the world to
have such a competitive advantage because we are too slow in moving on
this bill.
The bipartisan American Invents Act is too important to be turned
into a mere vehicle to launch speeches and debates about pet causes. It
is not the bill to have debates about whether if the United States were
to reach its debt ceiling, the government should favor paying creditors
such as China before meeting its other obligations to the American
people.
That theoretical debate has nothing to do with the patent reforms in
this bill, and there will be a bill that you can have the debate on if
you want. In fact, this bill is one that does not spend taxpayers'
money or raise the debt one dollar. Accordingly, I will ask the support
of our lead Republican sponsors and the bipartisan Senate leadership to
promptly table extraneous amendments so we can complete our work on
this legislation and serve the interests of the American people.
I have a managers' amendment. I described part of it already. I will
send it to the desk and ask unanimous consent that the pending
amendments be set aside and this be considered.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
[[Page S1032]]
Amendment No. 121
The assistant legislative clerk read as follows:
The Senator from Vermont [Mr. Leahy], for himself, Mr.
Grassley and Mr. Kyl, proposes an amendment numbered 121.
Mr. LEAHY. I ask unanimous consent that the reading of the amendment
be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. LEAHY. I ask for agreement on the managers' amendment.
Madam President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER (Mr. Tester.) The Senator from South Carolina.
Mr. DeMINT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection----
Mr. LEAHY. Reserving the right to object--I would ask if the
distinguished Senator could hold off----
The PRESIDING OFFICER. The Senator cannot reserve.
Mr. LEAHY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I understand Senator DeMint will be
offering an amendment in the first degree which will require setting
aside the managers' amendment. My understanding is, once he has done
that, we will then set aside his amendment and go back to the managers'
amendment.
I yield to the distinguished Senator.
The PRESIDING OFFICER. The Senator from South Carolina.
Amendment No. 113, As Modified
Mr. DeMINT. Mr. President, I ask unanimous consent that the pending
amendment be set aside so I can call up amendment No. 113, as modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from South Carolina [Mr. DeMINT], for Mr.
Vitter, proposes an amendment numbered 113, as modified.
Mr. DeMint. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require that the Government give equal priority to payment
of social security benefits and payment of all obligations on the debt
held by the public in the event that the debt limit is reached)
At the appropriate place add the following:
(c) Prioritize Payment of Social Security Benefits.--
Notwithstanding subsection (b), in the event that the debt of
the United States Government, as so defined, reaches the
statutory limit, the authority described in subsection (b)
and the authority of the Commissioner of Social Security to
pay monthly old-age, survivors', and disability insurance
benefits under title II of the Social Security Act shall be
given equal priority over all other obligations incurred by
the Government of the United States.
Mr. DeMINT. I yield the floor.
Mr. LEAHY. Mr. President, I ask unanimous consent that the pending
amendment now be set aside and that the managers' amendment be the
pending amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Mr. President, I rise today to speak to the America
Invents Act. To put it simply, this bill, the America Invents Act, is
about creating jobs. It is about protecting and promoting American
ingenuity and giving American ideas the opportunity to become American
products. The America Invents Act is about restoring American
competitiveness and leadership in our global economy.
America has been at the forefront of global innovation throughout our
Nation's great history. We invented the lightning rod, the cotton gin,
the mechanical reaper and thresher. Thomas Edison, perhaps the most
noted American inventer, invented the electric light, electric power
transmission, the motion picture camera, the phonograph, and x-ray
photography. The transistor, carbon fiber, GPS, Kevlar, recombinant
DNA, the personal computer, and the Internet are all American
inventions as well. Even more recently, American companies have
invented the iPod and the iPhone and the Segway.
Inventors in Delaware and across America are right now working on
critical advances in wind turbines, fuel cell technology, and electric
cars. These technical innovations and so many others have improved our
standard of living and spurred job growth, giving rise to entire
industries that would not have been possible without the advancements
of applied science.
I believe innovation will be key to reigniting the American
manufacturing sector as well.
As low-skilled jobs have moved offshore, the only solution is to
create highly skilled jobs here to replace them. These jobs will be
founded on American ideas and advancements.
In today's high tech world, however, the cost of innovation can be
high. In my home State of Delaware, DuPont invests about $1.3 billion
annually in research and development. Nationwide, according to the
Organization for Economic Cooperation and Development, U.S. companies
invest over $370 billion in R&D each year. In the pharmaceutical
industry, which is also important to my home State, experts estimate
that each new drug requires an initial investment of between $800
million and $2 billion.
Innovation is absolutely critical to the continued growth of our
Nation.
Our Founding Fathers recognized that investment in innovation will
not occur without a system of patent rights to allow inventors to reap
the fruits of their labor, and they placed with the Congress the
authority to provide for the issuance of patent rights.
Article 1, section 8, clause 8 states that Congress shall have the
power:
To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.
However complicated applied sciences were in 1836, when Congress
established the forerunner to the U.S. Patent and Trademark Office,
they are infinitely more complicated today. Never has PTO been more
central to ensuring that the system of nationwide patents contemplated
by our Founding Fathers is possible today. PTO must have clear,
objective guidelines that enable an applicant to predict whether his or
her application will be approved. That application process must move
expeditiously. At the end of that process, when PTO issues a patent,
the inventor and the industry must have confidence that the patent is
of good quality and will provide good defense against future
challenges.
In recent years, however, PTO has fallen short of these objectives.
Today, a patent applicant must wait over 2 years before an examiner
first picks up that application. Two years. At this moment, more than
700,000 applications simply sit at PTO awaiting consideration. Each one
of those applications represents an idea that could create a job or 10
jobs or 100 or 1,000. If you file a patent application at PTO today,
you can expect to wait just over 3\1/2\ years for an initial
disposition. Should PTO make an error in their examination, it would
take about 3 more years to appeal it.
In a world in which startup companies depend on patents to secure
venture capital and other funding, these times are just too long. While
PTO Director Kappos has achieved some success and has begun to right
the ship at PTO, he simply cannot accomplish acceptable reform without
our action.
The America Invents Act takes a number of steps to improve the
efficiency with which this country handles
[[Page S1033]]
patents, all of them designed to make the U.S. more competitive in the
global economy.
First, the America Invents Act will give PTO the tools it needs to
address the unacceptably long backlog of patent applications. In
February 2009, despite an increasing need for qualified patent
examiners, PTO instituted a hiring freeze. PTO is a user-fee supported
organization and so it should be able to pass through the costs of
staffing needs to patent applicants. This bill would finally give the
PTO the authority to set its own fees rather than having to wait for an
act of Congress to do so.
Another source of the backlog is the issue of patent fee diversion.
Currently, the fees paid by applicants for the purpose of funding the
costs of patent examination can be diverted away from PTO to the
Treasury without justification. Patent fee diversion cripples the
ability of PTO to do its job and is essentially a tax on innovation. In
the past 20 years, more than $800 million have been diverted from PTO
and though in recent years almost no money has been diverted thanks to
the determined leadership of my colleague, Senator Mikulski, PTO
funding should never depend on shifting political fortunes. Even in
times of political favor, the mere possibility of fee diversion is
harmful because it robs PTO of the ability to plan with confidence that
a varying workload will be matched by funding.
This bill does not currently address the issue of patent fee
diversion, but that is something that I and others are working to
change. Ending fee diversion is perhaps the single most effective thing
that we can do to empower PTO to reduce the patent backlog over the
long term. That is why I look forward to supporting Dr. Coburn's
amendment, which would ensure that PTO has access to the fees that it
charges, subject to continuing congressional oversight, of course.
The second thing the America Invents Act does to make the United
States more competitive is to improve the predictability and accuracy
of the patent examination process. By transitioning to a ``first to
file'' system, this bill brings the U.S. into line with the rest of the
world. Under ``first to file,'' PTO's task of determining the priority
of a patent application will be more straightforward because patent
priority will depend on objective, public facts, rather than on secret
files. To smaller inventors who are concerned that ``first to file''
will allow large companies to beat them out in a race to the patent
office, this bill contains important protections for all inventors.
Even under ``first to file,'' an inventor's patent priority is
protected for a year if he or she is the first to publicly disclose an
invention.
Not only does the America Invents Act make the patent process fairer
to inventors, but it will actually improve the quality of patents
issued by the PTO by leveraging the knowledge of outside parties. This
bill permits third parties to provide submissions regarding prior art
before a patent is issued, enhancing the ability of examiners to
determine whether an application is for a truly innovative idea worthy
of the protection of a patent.
The bill takes another step toward improving patent quality by
changing the way the issuance of patents can be challenged. The America
Invents Act introduces a 9-month post-grant review process during which
third parties can challenge a patent on any grounds. When you combine
the new pre-issuance submission process and the new post-grant review
process, what you get is a more rigorous and more thorough vetting of
patent applications.
We will get stronger, higher quality patents because of the America
Invents Act.
Chairman Leahy, along with his Republican cosponsors Senators Hatch,
Kyl and Sessions, deserve enormous credit for the bill that was
reported unanimously by the Judiciary committee just 4 weeks ago. The
America Invents Act reflects years of hard-fought negotiations between
the affected stakeholders.
At a time when bipartisanship is too frequently a platitude than
actual process, it should be noted that the America Invents Act shares
wide bipartisan support. Senators from both parties worked together on
the bill we consider today, and both sides of the aisle should be proud
of what we accomplished.
I applaud Leaders Reid and McConnell for their commitment to the open
amendment process. Despite the broad agreements that have been reached
so far, the Senate can and should consider suggestions to change the
bill. I know that I will support Dr. Coburn's amendment on fee
diversion. I also hope that the Senate will accept an amendment that I
have filed which would remove the section of the bill dealing with
venue.
While venue-shopping is a serious problem, the current language in
the bill risks stunting the development of case law, which has begun to
address the problem of plaintiffs' manufacturing venue in districts
that have a reputation of being hospitable for patent suits. In fact,
companies such as Oracle and HP, while they initially supported
legislative reform of venue, now fear that this provision will do more
harm than good. I look forward to debating all of these amendments in
the future.
Let me conclude my remarks on S. 23 by renewing my call to my fellow
Senators to carefully consider and support this legislation. The
America Invents Act is complicated and the subject matter may seem
daunting, but I believe it is critical to protecting American
innovation and defending American competitiveness.
The playing field for economic innovation has never been more
crowded. The United States faces rivals growing in strength and number,
which is why our government should be encouraging innovation, not
stifling it.
The America Invents Act will create jobs in Delaware and throughout
the United States by removing some of the administrative roadblocks
currently preventing inventors from becoming successful entrepreneurs.
This bill will improve the speed, quality and reliability of the Patent
and Trademark Office and it will ensure that America retains its place
in the world as the leader of invention and innovative thinking.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. KIRK. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 123
Mr. KIRK. Mr. President, I ask unanimous consent to set aside the
pending amendment and call up the Kirk-Pryor amendment No. 123.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Mr. President, reserving the right to object, and I do not
intend to object, my understanding is the Senator from Illinois will
offer his amendment and then will not object to his amendment then
being set aside and we go back to the managers' amendment; is that
correct?
Mr. KIRK. That is correct.
Mr. LEAHY. I will not object.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The bill clerk read as follows:
The Senator from Illinois [Mr. Kirk], for himself and Mr.
Pryor, proposes an amendment numbered 123.
Mr. KIRK. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide a fast lane for small businesses within the U.S.
Patent and Trademark Office to receive information and support
regarding patent filing issues)
On page 104, between lines 22 and 23, insert the following:
SEC. 18. PATENT OMBUDSMAN PROGRAM FOR SMALL BUSINESS
CONCERNS.
Subject to available resources, the Director may establish
in the United States Patent and Trademark Office a Patent
Ombudsman Program. The duties of the Program's staff shall
include providing support and services relating to patent
filings to small business concerns.
Mr. KIRK. Mr. President, the Kirk-Pryor amendment seeks to assist
some of our greatest innovators by providing a fast lane within the
U.S. Patent and Trademark Office for small businesses to receive
information and assistance regarding their patent applications.
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Small businesses are the economic engine of the American economy.
According to the Small Business Administration, small businesses employ
just over half of all private sector employees and create over 50
percent of our nonfarm GDP. Illinois alone is home to 258,000 small
employers and more than 885,000 self-employers.
Small businesses are helping to lead the way on American innovation.
These firms produce 13 times more patents per employee than large
patenting firms, and their patents are twice as likely to be among the
most cited among all patents. Small business breakthroughs led to the
development of airplanes, FM radio, and the personal computer.
Unfortunately, the share of small-entity patents is declining,
according to a New York University researcher.
While S. 23 takes great strides in reforming our patent system, it
can still be daunting for a small business owner or inventor to obtain
a patent. In many instances, the value of a patent is what keeps that
new small business afloat.
It is vital for America's future competitiveness, her economic
growth, and her job creation that these innovators spend their time
developing new products and processes that will build our future, not
wading through government redtape. Our amendment would help small firms
navigate the bureaucracy by establishing the U.S. Patent and Trademark
Office Ombudsman Program to assist small businesses with their patent
filing issues. The provision was first conceived as part of the Small
Business Bill of Rights, which I introduced in the House, to expand
employment and help small businesses grow. The Small Business Bill of
Rights and this amendment are endorsed by the National Federation of
Independent Business. I am proud to have this as part of a 10-point
plan to be considered here in the Senate.
I wish to thank Senator Mark Pryor of Arkansas, who is the lead
Democratic cosponsor of this amendment. He is a strong and consistent
supporter of small business, and I appreciate his partnership on this
important program. I also thank Chairman Leahy and Ranking Member
Grassley and their staffs for working with us on this amendment and for
preserving this critical legislation.
Our Founding Fathers recognized the importance of a strong patent
system that protects and incentivizes innovators. I look forward to
supporting S. 23, which will provide strong intellectual property
rights to further our technological advancement.
In sum, we should help foster innovation by protecting innovators,
especially small business men and women, and I urge adoption of the
amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Amendment No. 121
Mr. LEAHY. Mr. President, I thank the Senator from Illinois for his
contribution to this effort.
I ask unanimous consent that we set aside the Kirk-Pryor amendment
and go back to the pending business, which is the managers' amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I understand there will be another Senator
who will come down and speak, and in the meantime I suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I ask unanimous consent that the
distinguished Senator from Michigan, Ms. Stabenow, be recognized as
though in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan.
(The remarks of Ms. Stabenow are printed in today's Record under
``Morning Business.'')
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