[Congressional Record Volume 157, Number 31 (Thursday, March 3, 2011)]
[Senate]
[Pages S1175-S1185]
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.
  The 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.
       Bennet amendment No. 116, to reduce the fee amounts paid by 
     small entities requesting prioritized examination under 
     Three-Track Examination.
       Feinstein amendment No. 133, to strike the first inventor 
     to file requirement.

  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.


                     Amendment No. 133, as Modified

  Mr. LEAHY. Mr. President, I understand we have the Feinstein 
amendment No. 133 at the desk. I ask unanimous consent that the 
Feinstein amendment No. 133 be modified with the changes that are at 
the desk.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment, as modified, is as follows:

       On page 2, line 3, strike ``FIRST INVENTOR TO FILE.'' and 
     insert ``FALSE MARKING.''
       On page 2, strike line 4 and all that follows through page 
     16, line 21, and insert the following:
       (a) False Marking.--
       On page 17, line 18, strike ``(l)'' and insert ``(b)''.
       On page 18, strike line 22 and all that follows through 
     page 32, line 11.
       On page 66, strike line 9 and all that follows through page 
     67, line 8.
       On page 71, line 1, strike ``derivation'' and insert 
     ``interference''.

[[Page S1176]]

       On page 71, line 5, strike ``derivation'' and insert 
     ``interference''.
       On page 72, line 24, strike ``Derivation'' and insert 
     ``Interference''.
       On page 72, lines 24 and 25, strike ``derivation'' and 
     insert ``interference''.
       On page 73, line 4, strike ``derivation'' and insert 
     ``interference''.
       On page 73, line 18, strike ``derivation'' and insert 
     ``interference''.
       On page 73, line 23, strike ``derivation'' and insert 
     ``interference''.
       On page 74, lines 2 and 3, strike ``derivation'' and insert 
     ``interference''.
       On page 74, between lines 20 and 21, insert the following:
       (d) Conforming Amendments.--Sections 41, 134, 145, 146, 
     154, 305, and 314 of title 35, United States Code, are each 
     amended by striking ``Board of Patent Appeals and 
     Interferences'' each place that term appears and inserting 
     ``Patent Trial and Appeal Board''.
       On page 74, line 21, strike ``(d)'' and insert ``(e)''.
       On page 95, strike lines 13 through 15, and insert the 
     following: by inserting ``(other than the requirement to 
     disclose the best mode)'' after ``section 112 of this 
     title''.

  Mr. LEAHY. Mr. President, I wish to thank the distinguished Senator 
from Arizona for his words here this morning. He is part of the small 
group of Republicans and Democrats who have worked very hard over the 
last couple of years on this bill with the idea of giving us something 
that would allow inventors, innovators, and entrepreneurs in America to 
be able to compete with the rest of the world.
  I am one American who believes we can compete with anybody anywhere 
provided we get a level playing field. Other countries have set up 
enough barriers for us of their own. We shouldn't be setting up 
barriers here in the United States. One thing we can do is to make some 
major, long-overdue changes in the patent laws to give us that level 
playing field. Inventors and innovators in America who will take 
advantage of this will be better off for it and will create jobs, but 
most importantly, we will show the rest of the world that America is 
open for business.
  Americans can be the innovators they have been from the time the 
first patent was issued--and I say this with pride--to a Vermonter back 
when then-Secretary of State Thomas Jefferson reviewed the application, 
which was then signed by the President of the United States, George 
Washington. Now, of course, they are not reviewed by the Secretary of 
State and signed by the President, thank goodness, because there are 
over 700,000 applications pending.
  We need legislation to bring us up to date, and this act will promote 
innovation, it will create new businesses and, as a result, new jobs. 
This is bipartisan legislation that will allow inventors to secure 
their patents more quickly and to have better success commercializing 
them.
  The pending amendment would gut the reforms intended by the bill. 
With all due respect, it would destroy all the work we have tried to do 
in this bill. It would eliminate a major piece of this effort--the 
transition to a first-inventor-to-file patent system. First-inventor-
to-file is a necessary component of this legislation and enjoys support 
from every corner of the patent community.
  The administration, the Secretary of Commerce, and the head of the 
Patent and Trademark Office all oppose this amendment. A vast array of 
individuals, independent small inventors, small businesses, and labor 
oppose this amendment. The four senior Republicans on the Judiciary 
Committee who have worked so hard on this bill--Senators Grassley, 
Hatch, Kyl, and Sessions--oppose this amendment. Needless to say, I 
oppose this amendment. It would be a poison pill to these legislative 
reform efforts.
  Supporters of the legislation before us--ranging from high-tech and 
life sciences companies to universities and small businesses--place 
such a high importance on the transition to the first-inventor-to-file 
system that many of them, including those who reside in just about 
every State, would not support a bill without those provisions.
  A transition to first-inventor-to-file has been part of this bill 
since its introduction four Congresses ago. Yet, until very recently, 
first-inventor-to-file was never the subject of even a single amendment 
in the Judiciary Committee over all those years. This legislation is 
the product of eight Senate hearings and three markups spanning weeks 
of consideration and numerous amendments. Never was first-inventor-to-
file a contentious issue. Now some well-financed special interests that 
do not support the America Invents Act have decided to kill the bill by 
a last-minute campaign to strike these vital provisions.
  I urge Senators to support the goals of the America Invents Act and 
vote against this amendment to strike first-inventor-to-file.
  Mr. President, the United States is the only industrialized country 
still using a first-to-invent system, and there is a reason for that. A 
first-inventor-to-file system, by contrast, where the priority of a 
right to a patent is based on the earlier filed application, adds 
simplicity and objectivity into a very complex system. By contrast, our 
current outdated method for determining the priority right to a patent 
is extraordinarily complex, it is subjective, it is time-intensive, and 
it is expensive. The old system almost always favors the larger 
corporation and the deep pockets over the small independent inventor.
  This past weekend, the Washington Post editorial board endorsed the 
transition, calling our first-inventor-to-file standard a ``bright 
line.'' They went on to say it would bring ``certainty to the 
process.'' The editorial also rightly recognizes the ``protections for 
academics who share their ideas with outside colleagues or preview them 
in public seminars'' that are included in the bill.
  The transition to a first-inventor-to-file system will benefit small 
inventors and inventors of all sizes by creating certainty. Once a 
patent is granted, an inventor can rely on its filing date on the face 
of the patent.
  The reduction in costs to patent applications that comes with a 
transition to this system should also help the small independent 
inventor. In the current outdated system where more than one 
application claiming the same invention is filed, the priority of a 
right to a patent is decided through an ``interference'' proceeding to 
determine which applicant can be declared to have invented the claimed 
invention first. It is lengthy, it is complex, and it can cost hundreds 
of thousands of dollars. Small inventors rarely, if ever, win 
interference proceedings. In a first-inventor-to-file system, however, 
the filing date of the application is objective and easy to determine, 
resulting in a streamlined and less costly process.
  The bill protects against the concerns of many small inventors and 
universities by including a 1-year grace period to ensure the 
inventor's own publication or disclosure cannot be used against him as 
prior art but will act as prior art against another patent application. 
This encourages early disclosure of new inventions regardless of 
whether the inventor ends up trying to patent the invention.
  The transition to first-inventor-to-file is ultimately needed to help 
American companies and innovators compete globally. As business and 
competition increasingly operate on a worldwide scale, inventors have 
to file patent applications in both the United States and other 
countries for protection of their inventions. Since America's current 
outdated system differs from the first-inventor-to-file system used in 
other patent-issuing jurisdictions--all our competitors--it causes 
confusion and inefficiencies for American companies and innovators. 
Harmonization will benefit American inventors.
  Commerce Secretary Gary Locke highlighted the importance of the 
first-inventor-to-file provision to the bill in his column published in 
The Hill yesterday. He noted that it ``would be good for U.S. 
businesses, providing a more transparent and cost-effective process 
that puts them on a level playing field with their competitors around 
the world.''
  Secretary Locke went on to confront the erroneous notion that the 
current outdated system is better for small independent inventors, and 
he did it head-on by explaining that in his ``strong opinion that the 
opposite is true.'' The first-inventor-to-file system is better for the 
small independent inventor. As the Secretary noted:

       The cost of proving that one was first to invent is 
     prohibitive and requires detailed and complex documentation 
     of the invention process. In cases where there's a dispute 
     about who the actual inventor is, it typically costs at least 
     $400,000 in legal fees, and even more if the case is 
     appealed. By comparison, establishing a filing date through a 
     provisional application and establishing priority of 
     invention costs just $110.


[[Page S1177]]


  Secretary Locke explained how the 125,000 provisional applications 
currently filed each year prove that early filing dates protect the 
rights of small inventors. He reiterated that during the past 7 years, 
under the current outdated, cumbersome, and expensive system, of almost 
3 million applications filed, only 1 patent was granted to an 
individual inventor who was the second to apply.
  Our reform legislation enjoys broad support. I have already mentioned 
some of those supporters, but let me highlight a few more:
  Just yesterday, the National Association of Manufacturers urged every 
Senator to oppose the effort to strike the first-to-file transition, 
writing, ``The NAM supports transitioning the United States from a 
`first-to-invent' system to a `first-to-file' system to eliminate 
unnecessary cost and complexity in the U.S. patent system.''
  The Small Business & Entrepreneurship Council has expressed its 
strong support for the first-inventor-to-file system, writing that 
``small firms will in no way be disadvantaged, while opportunities in 
the international markets will expand.''
  The Intellectual Property Owners Association calls the first-
inventor-to file system ``central to modernization and simplification 
of patent law'' and ``very widely supported by U.S. companies.''
  Independent inventor Louis Foreman has said the first-inventor-to-
file transition will help ``independent inventors across the country by 
strengthening the current system for entrepreneurs and small 
businesses.''
  Six university, medical college, and higher education associations 
have urged the transition to first-to-file, saying that it will ``add 
greater clarity to the U.S. system.''
  And, in urging the transition to the first-to-file system, the 
Association for Competitive Technology, which represents small and mid-
size IT firms, has said the current outdated system ``negatively 
impacts entrepreneurs'' and puts American inventors ``at a disadvantage 
with competitors abroad who can implement first inventor to file 
standards.'' That is why it is so important to move to a first-
inventor-to-file system.
  I ask unanimous consent copies of the Washington Post editorial, 
``Patenting Innovation,'' be printed in the Record at the conclusion of 
my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. LEAHY. I also ask letters from the National Association of 
Manufacturers, higher education associations, the Small Business & 
Entrepreneurship Council be printed in the Record at the conclusion of 
my comments.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 2.)
  Mr. LEAHY. I will conclude with this: If we are to continue to lead 
the globe in innovation and production, if we are to win the future 
through American ingenuity and innovation, we must have a patent system 
that is streamlined and efficient. The America Invents Act, and a 
transition to a first-inventor-to-file system in particular, is crucial 
to fulfill this promise. I urge all Senators on both sides of the aisle 
to oppose the Feinstein amendment and support the important provision 
of first-inventor-to-file, which is at the heart of the America Invents 
Act.
  As I said, I submit the list of stakeholders across the spectrum from 
high-tech and life sciences to universities and small inventors in 
support of a transition to the first-to-file system, and ask unanimous 
consent that list be printed in the Record.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 3.)
  Mr. LEAHY. Mr. President, I see the distinguished Senator from 
Delaware who has been so helpful on this legislation on the floor, so I 
yield the floor.

                               Exhibit 1

               [From the Washington Post, Feb. 26, 2011]

                          Patenting Innovation

       More than 60 years have passed since a major overhaul of 
     the U.S. patent system has taken place. And it shows.
       The U.S. patent system lags woefully. One example: Patents 
     in the United States are given to those ``first to invent.'' 
     This approach is out of step with the rest of the world's 
     ``first to file'' approach and is highly inefficient. It 
     invites people to come out of the woodwork years after a 
     product has been on the market to claim credit and demand 
     royalties.
       The secretive and lengthy U.S. process also too often 
     results in patents for products that are neither novel nor 
     innovative. It leaves manufacturers vulnerable to 
     infringement lawsuits and damage awards long after their 
     products have gone to market.
       The Senate is poised to take up a bill on Monday that would 
     eliminate these defects and bring the U.S. system into the 
     21st century.
       The Patent Reform Act, introduced by Sens. Patrick J. Leahy 
     (D-Vt.) and Orrin G. Hatch (R-Utah), would recognize the 
     ``first inventor to file'' standard, creating a bright line--
     the date on which a patent application was filed--and 
     bringing certainty to the process. Yet the bill is not 
     inflexible and wisely keeps in place protections for 
     academics who share their ideas with outside colleagues or 
     preview them in public seminars.
       The bill also would increase protections for those with 
     legitimate gripes. Third parties, currently shut out of the 
     process, would be given clear rules and time limits to 
     challenge patents that have not yet been approved. They'd 
     also have a chance to lodge objections after a patent has 
     been granted; the U.S. Patent and Trademark Office (PTO) 
     would resolve these disputes. This safety valve should reduce 
     the litigation costs associated with court challenges.
       The PTO has long been overwhelmed and underfunded. The bill 
     would allow the agency to set the amount it charges for 
     filings while providing discounts to solo inventors and small 
     companies. An amendment likely to be introduced by Sen. Tom 
     Coburn (R-Okla.) would allow the agency to keep all of its 
     fees, thereby ensuring it the resources it needs to carry out 
     the bill's mandates.
       The president made much of ``winning the future'' in his 
     State of the Union address. A patent system that protects 
     innovators and encourages meaningful breakthroughs would help 
     achieve that goal.
                                  ____


                               Exhibit 2

                                              National Association


                                             of Manufacturers,

                                    Washington, DC, March 2, 2011.
     U.S. Senate,
     Washington, DC.
       Dear Senator: The National Association of Manufacturers 
     (NAM), the nation's largest industrial trade association 
     representing small and large manufacturers in every 
     industrial sector and in all 50 states, urges you to oppose 
     amendment 133 offered by Sen. Dianne Feinstein (D-CA) to S. 
     23,The America Invents Act.
       The amendment would remove a key provision in S. 23, The 
     America Invents Act, which is strongly supported by 
     manufacturers, the creation of a ``first-inventor-to-file'' 
     system.
       The NAM supports transitioning the United States from a 
     ``first-to-invent'' system to a ``first-to-file'' system to 
     eliminate unnecessary cost and complexity in the U.S. patent 
     system. Manufacturers large and small operate in the global 
     marketplace and the United States needs to move toward a 
     system that will provide more patent protection around the 
     world for our innovative member companies. The ``first-to-
     file'' provision currently included in S. 23 achieves this 
     goal.
       Thank you for your consideration and your support for the 
     ``first-to-file'' system.
           Sincerely,
     Dorothy Coleman.
                                  ____

                                                February 28, 2011.
     Hon. Patrick J. Leahy,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Leahy: We write as the presidents of six 
     university, medical college, and higher education 
     associations to express the strong support of our 
     associations for S. 23, the Patent Reform Act of 2011, which 
     was reported by the Senate Judiciary Committee on a 15-0 vote 
     and is scheduled to be considered by the Senate this week. 
     This bipartisan agreement represents the successful 
     culmination of a thorough, balanced effort to update the U.S. 
     patent system to support more effectively the nation's 
     economic competitiveness and job creation in the increasingly 
     competitive global environment of the 21st century.
       Our universities and medical colleges are this nation's 
     principal source of the fundamental research that expands the 
     frontiers of knowledge, strengthening the nation's innovative 
     capacity. The patent system plays a critical role in enabling 
     these institutions to transfer the discoveries arising from 
     university research into the commercial sector for 
     development into products and processes that benefit society.
       S. 23 will:
       Harmonize the U.S. patent system with that of our major 
     trading partners, enabling U.S. inventors to compete more 
     effectively in the global marketplace;
       Improve patent quality by allowing third parties to submit 
     information to the USPTO concerning patents under 
     examination, and by creating an efficient, effective post-
     grant opposition proceeding to challenge patents for nine 
     months after they have been granted, allowing challengers to 
     eliminate weak patents that should not have been granted

[[Page S1178]]

     and strengthening those patents that survive the challenge;
       Reduce patent litigation costs by establishing the new 
     post-grant procedure noted above, and by significantly 
     improving the current inter partes review procedure, which 
     will provide a lower-cost alternative to civil litigation to 
     challenge a patent throughout its lifetime, while 
     significantly reducing the capacity to mount harassing serial 
     challenges; and
       Provide USPTO with increased resources by providing this 
     fee-funded agency with critically needed fee-setting 
     authority, subject to Congressional and Patent Public 
     Advisory Committee oversight.
       We wish to call your attention to two important amendments 
     that may be offered during floor consideration:
        Senator Coburn is expected to offer an amendment to 
     prevent diversion of fees collective by USPTO. This amendment 
     is a critical accompaniment to the fee-setting authority 
     provided by S. 23, allowing this seriously under-resourced 
     agency to maintain the fees necessary to carry out its 
     critical functions and reduce the backlog of patent 
     applications. We urge you to support the Coburn amendment.
       Senators Feinstein, Boxer, and Reid are expected to offer 
     an amendment to eliminate the transition to a first-inventor-
     to-file system. The National Academies, in its seminal report 
     on patent reform, A Patent System for the 21st Century, 
     strongly recommended moving from a first-to-invent to a 
     first-inventor-to-file system. Adopting a first-inventor-to-
     file system will harmonize the U.S. patent law with that of 
     our trading partners, add greater clarity to the U.S. system 
     by replacing the subjective determination of the first 
     inventor with the objective identification of the first 
     filer, and eliminate the costs of interferences and 
     litigation associated with determining the first inventor. We 
     urge you to oppose the Feinstein, Boxer, and Reid amendment.
       We believe S. 23 reforms current U.S. law in a way that 
     balances the interests of the various sectors of the patent 
     community and substantially improves the patent system 
     overall, strengthening the capacity of this system to 
     strengthen the nation's innovative capacity and economic 
     competitiveness. We urge you to support this carefully 
     crafted legislation.
           Sincerely,
     Robert M. Berdahl,
       President, Association of American Universities;
     Molly Corbett Broad,
       President, American Council on Education;
     Darrell G. Kirch,
       President and CEO, Association of American Medical 
     Colleges;
     Peter McPherson,
       President, Association of Public and Land-grant 
     Universities;
     Ashley J. Stevens,
       President, Association of University Technology Managers;
     Anthony P. DeCrappeo,
       President, Council on Governmental Relations.
       This letter was sent to all members of the U.S. Senate.
                                  ____

                                                  Small Business &


                                     Entrepreneurship Council,

                                    Oakton, VA, February 28, 2011.
     Hon. Patrick Leahy,
     U.S. Senate, Russell Senate Bldg.,
     Washington, DC.
       Dear Senator Leahy: The Small Business & Entrepreneurship 
     Council (SBE Council) and its members across the nation have 
     been strong advocates for patent reform. We are pleased that 
     you have introduced the Patent Reform Act (S. 23), and we 
     strongly endorse this important piece of legislation.
       An effective and efficient patent system is critical to 
     small business and our overall economy. After all, the U.S. 
     leads the globe in entrepreneurship, and innovation and 
     invention are central to our entrepreneurial successes. 
     Indeed, intellectual property--most certainly including 
     patents--is a key driver to U.S. economic growth. Patent 
     reform is needed to clarify and simplify the system; to 
     properly protect legitimate patents; and to reduce costs in 
     the system, including when it comes to litigation and the 
     international marketplace.
       Make no mistake, this is especially important for small 
     businesses. As the Congressional Research Service has 
     reported: ``Several studies commissioned by U.S. federal 
     agencies have concluded that individuals and small entities 
     constitute a significant source of innovative products and 
     services. Studies have also indicated that entrepreneurs and 
     small, innovative firms rely more heavily upon the patent 
     system than larger enterprises.''
       The Patent Reform Act works to improve the patent system in 
     key ways, including, for example, by lowering fees for micro-
     entities, and by shortening time periods for patent reviews 
     by making the system more predictable.
       During the debate over this legislation, it is expected 
     that two important areas of reform will come under attack.
       First, the U.S. patent system is out of step with the rest 
     of the world. The U.S. grants patents on a first-to-invent 
     basis, rather than the first-inventor-to-file system that the 
     rest of the world follows. First-to-invent is inherently 
     ambiguous and costly, and that's bad news for small 
     businesses and individual inventors.
       In a 2004 report from the National Research Council of the 
     National Academies (titled ``A Patent System for the 21st 
     Century''), it was pointed out: ``For those subject to 
     challenge under first-to-invent, the proceeding is costly and 
     often very protracted; frequently it moves from a USPTO 
     administrative proceeding to full court litigation. In both 
     venues it is not only evidence of who first reduced the 
     invention to practice that is at issue but also questions of 
     proof of conception, diligence, abandonment, suppression, and 
     concealment, some of them requiring inquiry into what an 
     inventor thought and when the inventor thought it.'' The 
     costs of this entire process fall more heavily on small 
     businesses and individual inventors.
       As for the international marketplace, patent harmonization 
     among nations will make it easier, including less costly, for 
     small firms and inventors to gain patent protection in other 
     nations, which is critical to being able to compete 
     internationally. By moving to a first-inventor-to-file 
     system, small firms will in no way be disadvantaged, while 
     opportunities in international markets will expand.
       Second, as for improving the performance of the USPTO, it 
     is critical that reform protect the office against being a 
     ``profit center'' for the federal budget. That is, the USPTO 
     fees should not be raided to aid Congress in spending more 
     taxpayer dollars or to subsidize nonrelated programs. 
     Instead, those fees should be used to make for a quicker, 
     more predictable patent process.
       Thank you for your leadership Senator Leahy. Please feel 
     free to contact SBE Council if we can be of assistance on 
     this important issue for small businesses.
           Sincerely,
                                                   Karen Kerrigan,
     President & CEO.
                                  ____


                               Exhibit 3

                   Record Submissions--First-to-File

       Mr. President. We have heard from stakeholders from across 
     the spectrum--from high tech and life sciences, to 
     universities and small inventors--in support of the 
     transition to the first-to-file system. These supporters 
     include:

       AdvaMed; American Bar Association; American Council on 
     Education; American Intellectual Property Law Association; 
     Association of American Medical Colleges; Association for 
     Competitive Technology; Association of American Universities; 
     Association of Public and Land-grant Universities; 
     Association of University Technology Managers; Biotechnology 
     Industry Organization; Business Software Alliance; Coalition 
     for 21st Century Patent Reform, a coalition of 50 companies 
     from 18 different industry sectors, such as General Electric, 
     Procter & Gamble, 3M, Pfizer, and Cargill.
       Council on Governmental Relations; Gary Michelson, 
     Independent Inventor; Genentech; Intellectual Property Owners 
     Association; Louis J. Foreman, Enventys, Independent 
     Inventor; National Association of Manufacturers; The Native 
     American Intellectual Property Enterprise Council; PhRMA; 
     Small Business and Entrepreneurship Council; Software & 
     Information Industry Association.

  The ACTING PRESIDENT pro tempore. The Senator from Delaware is 
recognized.
  Mr. COONS. Mr. President, I thank the chairman for his leadership on 
this floor deliberation regarding S. 23, the America Invents Act.
  I rise to speak in opposition to the Feinstein amendment, which would 
strike the first-to-file provision, which I think is one of the 
critical components of this act that will harmonize the patent system 
with that of the rest of the world, as I heard Chairman Leahy speak to. 
This is the first comprehensive patent reform bill in 60 years. It is a 
key piece of our bipartisan work to make sure the United States remains 
a competitive country which can once again be in the forefront of world 
innovation.
  As someone who, like you, Mr. President, is concerned about 
manufacturing, is concerned about employment, is concerned about jobs, 
one of the ways we can restrengthen, reinvigorate, reenergize 
manufacturing in this country is by making sure our Patent and 
Trademark Office is as capable, is as strong as it can possibly be. I 
take quite seriously that the Patent and Trademark Office under the 
very able leadership of Director Kappos is opposed to this amendment 
and has also raised concern, which I share, that this amendment would 
tear apart the very broad coalition that has worked so hard and has 
negotiated this particular act, the America Invents Act, over the last 
6 years.

[[Page S1179]]

  On an issue that is as important as this, as critical as this to the 
protection of American innovation and the resulting creation of jobs, I 
think it is important that we in the Senate not allow this bipartisan 
bill to fall apart over this issue.
  Transition to first-to-file is an improvement over the current system 
because it provides increased predictability, certainty, and 
transparency. Patent priority will depend on the date of public 
disclosure and the effective filing date rather than on secret inventor 
notebooks, secret personal files which may or may not be admissible and 
often lead to long and contentious litigation, as the chairman 
mentioned in his floor comments as well.
  This predictability, the predictability that the first-to-file system 
will bring, I believe will strengthen the hand of investors, inventors, 
and the public. All will know as soon as an application is filed 
whether it is likely to have priority over other patent applications.
  In contrast, the current system with which we worked for many years 
does not provide an easy way to determine priority. That is why 
interference proceedings can be so contentious, so long, and so 
expensive. There are some small inventors in particular who I know are 
concerned that first-to-file will be used by larger companies to steal 
away their rightful invention. This bill contains critical protections 
for all inventors so the ultimate new system, once this is passed, will 
be more fair, more predictable, and transparent for all. For those 
inventors who publicly disclose an invention before anybody else, they 
have a 1-year grace period to claim priority for any patent application 
based on the subject matter they disclose. Smaller inventors as well as 
large inventors will be protected as soon as they publish or otherwise 
disclose under this America Invents Act.
  In my view, that will increase the free flow of ideas while still 
protecting the IP rights of any inventor, large or small.
  The Patent and Trademark Office commissioned a study of patent and 
trademark applications filed over the last 7 years. They found only 1 
out of 300,000 filings would, under the new system, grant a patent to a 
large company that might otherwise have gone to a small company or 
individual inventor. By avoiding cost, the difficulty, the 
unpredictability of lengthy interference proceedings, transition to 
first-to-file will neutralize what I think is a big structural 
advantage to large companies in the current dispute system.
  First of all, it also gives the holder of a new patent increased 
confidence in the strength and reliability of this patent, which I also 
think will accelerate venture capital investment, new company 
formation, and movement toward deployment of critical new technology.
  I think experience has shown in other countries, in Europe and 
Canada, that transitioning from a first-to-invent to a first-to-file 
system will not lead directly to an increase in so-called junk 
applications and will, instead, make patent examination simpler, 
fairer, and more predictable. In short, my view is that it is crucial 
to the success of this legislation. It is crucial for the coalition 
that has come together over many years to support it. It is crucial for 
the progress this act will make in strengthening and streamlining the 
patent review and granting process in the United States. So I urge my 
colleagues to oppose the amendment, amendment No. 133.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Brown of Ohio). The clerk will call the 
roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BENNET. 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. BENNET. Mr. President, I would like to speak briefly on the 
importance of passing the America Invents Act.
  Chairman Leahy and the Judiciary Committee have worked hard to put 
this product on the floor that will mark the biggest reforms to our 
patent system in 60 years. This bill will create jobs in Colorado and 
across the country by promoting innovation. By making our patent system 
more efficient, we are building the foundation for future economic 
growth.
  In my State alone, nearly 20,000 patent applications have been 
granted between the years 2000 and 2009. These applications have 
created the foundation for our clean energy economy and emerging tech 
and bio industries.
  Having a high quality U.S. Patent and Trademark Office is essential 
to maintaining American leadership in innovation. The America Invents 
Act will help us grow new industries and will help cure the backlog and 
delay that have stunted the ability of inventors to patent their ideas.
  Right now, the average pendency period for a patent application is 36 
months. That is unacceptable if we are to compete with the rest of the 
world. This does not even account for those patents that have been tied 
up in years of litigation after they are granted.
  And we have improved the bill on the floor by helping solidify 
alternatives to litigation, provide for more efficient resolution of 
disputes and help create more certainty, which is essential to 
inventors.
  It is hard to pass a jobs bill without spending money, but that is 
absolutely what we have done here. The bill does a good job of 
balancing the interests of innovators across the many sectors of our 
economy.
  We have passed a number of bipartisan amendments that have improved 
this bill. We added amendments promoting the establishment of satellite 
USPTO offices in regions across the country; creating a discount for 
small entities to participate in the accelerated patent examination 
program of the USPTO; and addressing concerns with damages and venue 
provisions. I am proud to have worked with the chairman and the ranking 
member to get these issues resolved.
  I also commend Senator Menendez on his amendment to provide a fast 
track for patents that are critical for our national competitiveness, 
which I cosponsored.
  The Senate has come a long way toward improving our patent system 
with this legislation and harmonizing our system with the rest of the 
world. There are a lot of people in my State who are interested in 
further improvements. I pledge to continue to work with them to help 
make sure we continue to fine tune this legislation where we can.
  The America Invents Act represents significant progress for our 
patent system. We are moving our patent system into the new century, 
which is already being defined by the next wave of American innovation. 
The breadth of support for this legislation across industries and from 
large and small businesses, as well as our universities, has provided 
the momentum to complete this legislation.
  I would like to close by again thanking the chairman and Judiciary 
Committee. I urge my colleagues to vote for patent reform.
  I thank the Chair. I yield the floor.
  Mr. DURBIN. 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. DURBIN. Mr. President, I ask unanimous consent to be recognized 
as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      SETTING THE Record STRAIGHT

  Mr. DURBIN. This morning the Republican leader came to the floor, 
Senator McConnell, and made some pretty strong and sweeping statements 
about the state of the deficit and responsibility. I would like to have 
a chance to respond.
  Senator McConnell said for 2 years now Washington Democrats have 
taken fiscal recklessness to new heights. The amount of red ink 
Democrats plan to wrack up this year alone would exceed all the debt 
run up by the Federal Government since its inception through 1984.
  I would like to set the record straight. Understand what the national 
debt of America was when President William Jefferson Clinton left 
office. We were running surpluses. We had not done that for decades--
surpluses in the Federal Treasury.
  What did we do with all this money? We put it in the Social Security 
trust fund. We bought more longevity and solvency for Social Security 
and, if you remember, the economy was never stronger.
  William Jefferson Clinton left office, and at that moment in time, 
the national debt, the accumulated debt of

[[Page S1180]]

America, from George Washington until he left office, $5 trillion. 
Remember that number, $5 trillion. Fast forward 8 years after the end 
of President George W. Bush--8 years later--where were we? The national 
debt was now $12 trillion.
  Fiscal recklessness by Democrats? Under President Bush, the national 
debt more than doubled. Instead of leaving a surplus for President 
Obama, he said: Welcome to an economy that is hemorrhaging hundreds of 
thousands of jobs lost every single month, and we anticipate next 
year's deficit--he told President Obama--to be $1.2 trillion. That was 
what President Bush handed to President Obama.
  I do not mind a selective view of history. I guess we are all guilty 
of that, to some extent. But to ignore the fiscal mess created that 
more than doubled the national debt in 8 years, to ignore that we waged 
two wars without paying for them, to ignore that we cut taxes in the 
midst of a war, which is something no President in the history of the 
United States has ever done, is to ignore reality.
  The reality is, we are here today, in the midst of this Titanic 
struggle, about whether we are going to continue to keep the Federal 
Government functioning. We are being asked whether, 2 weeks from now, 
we want to have security at our airports, air traffic controllers, 
whether we want to have Social Security checks sent out, people 
actually sending a check, answering questions at the Internal Revenue 
Service, whether we want the Securities and Exchange Commission still 
working on Wall Street 2 weeks from now.
  We cannot lurch forward 2 weeks at a time without doing a great 
disservice to taxpayers of this country, as well as to the men and 
women who work hard for our government every single day.
  What is the answer in the House of Representatives? Well, the House 
of Representatives says we need to cut $100 billion this year. They 
started at $60 billion, incidentally, and then decided that was not 
enough for bragging rights; let's get up to $100 billion this year.
  You say: Well, out of a budget of $3.7 trillion, how big is that? 
Whoa. They did not look at the budget of $3.7 trillion. They looked at 
one 14-percent slice of the pie, domestic discretionary spending. That 
is it. Nothing to be taken out of the Department of Defense, nothing to 
be taken away in terms of tax breaks for the wealthiest corporations, 
the most successful corporations, nothing out of oil and gas royalties 
and the like--nothing out of that. We will take it all out of domestic 
discretionary.
  So what did they take away? I looked in my State last week. I went up 
to Woodstock, IL. We have an office there with counselors who are 
bringing in unemployed people, sitting them in front of computers, with 
fax machines and copy machines. They are preparing resumes and trying 
to get back to work. These are people who want to work. They need a 
helping hand. This place has been successful. It places people in jobs. 
What would happen to that office under the House Republican budget 
resolution? It would close its doors--more unemployed people, more 
unemployment checks. Is that the answer to putting America's economy 
back on its feet? Is that how we are going to get 15 million Americans 
back to work?
  How about the House Republicans' proposal to eliminate $850 a year in 
Pell grants. Senator Leahy knows what that is all about. These are kids 
from the poorest families, many of them for the first time in their 
family have a chance to graduate from college, but they can't make it; 
they don't have enough money. We give them a helping hand. The 
Republicans take it away. What will that do? The President of Augustana 
College in Rock Island, IL, told me what it will mean. It will mean 
that 5 percent, 1 out of every 20 students, will not finish the school 
year. That is what the Republican cut means. To cut job training, to 
cut education when we have 15 million people out of work, what are they 
thinking?
  Not bad enough, I went to a medical school in my hometown of 
Springfield, Southern Illinois University School of Medicine, and met 
with researchers. They get a few million a year to do medical research 
in fields of cancer therapy, dealing with heart issues, dealing with 
complaints of returning veterans. What do the House Republicans do? 
They virtually close down research for the remainder of the year, close 
down this medical research. Is that right? Is that what we want? Have 
we ever had a sick person in our family and we went to the doctor and 
asked: Is there anything, is there a drug, is there something 
experimental, a clinical trial, is there anything? Have we ever asked 
that question? If we did, we know this cut by House Republicans is 
mindless, to cut medical research at this moment in history.
  Then I went to a national laboratory, the Argonne National 
Laboratory, on Monday. What do they do there? A lot of people can't 
answer that question. I learned specifically. Are Members aware of the 
Chevy Volt, a breakthrough automobile, all electric? Where did that 
battery in this automobile come from? The Argonne National Laboratory. 
How about the latest pharmaceutical breakthroughs? Virtually every one 
of them uses the advanced photon source at the Argonne National 
Laboratory. I met a man from Eli Lilly who was there experimenting with 
a new drug that can save lives. How about computers? Where is the 
fastest computer in the world today? I wish it was in the United 
States. It is in China. We are now working on the next fastest computer 
so we don't lose that edge. Where? At the Argonne National Laboratory. 
So what would the House Republican budget do to that laboratory and 
most every other laboratory? It would eliminate one-third of the 
scientists and support staff working there and cut their research by 50 
percent for the rest of the year.
  So what? So what if we don't move these pharmaceuticals forward to 
market sooner to save lives, if we don't compete with the Chinese on 
this computer, if we don't deal with battery technology so we don't 
lose that edge in the world? What will it mean? Lost jobs.
  The House Republicans weren't thinking clearly. They were performing 
brain surgery with a hacksaw. As a result, they have cut what is 
essential for the future: infrastructure projects, education, research. 
To have the Republican leader come and tell us we have to accept that, 
that that is the future of America--no, it is not. Time and again, when 
we sit down to deal with budget challenges, whether it is in the 
deficit commission, on which I was honored to serve, or whether it is 
in past negotiations, we open the table to all Federal spending, not 
just 14 percent, that tiny slice of the pie.
  Senator McConnell can remember--and I can, too--under President 
George Herbert Walker Bush and under President Clinton, we put on the 
table tax breaks for some of these oil companies and corporations and 
said: Is it worth America's future for us to give them a tax break or 
to use the money to reduce the deficit? That is an honest question. 
Mandatory spending. All these things need to be brought to the table 
for conversation, but that is not the position of the Republicans. They 
would rather see us shut down the government than to open this 
conversation to the entire Federal budget. They would rather see us 
shut down the government than fight to make sure education, training, 
research and innovation and infrastructure are there to build a strong 
American economy for the future.
  I say to my friend Senator McConnell, we don't need any speeches from 
that side of the aisle about a national debt that more than doubled 
under the last Republican President. We have to work together in a 
bipartisan way, acknowledging the reality of history, that we all have 
had a hand in reaching the point we are at today, both positive and 
negative, and we all need to take a responsible position to move us 
forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the comments of the Senator 
from Illinois. I recall great discussions during the administration of 
President Reagan. I happened to like President Reagan. We got along 
very well. But I remember discussions on a balanced budget and all 
that, as his budget tripled the national debt. I do recall he did veto 
one spending bill because it didn't spend as much as he wanted. 
Rhetoric is one thing, as the Senator

[[Page S1181]]

from Illinois points out. Reality is often different. I thank him.


                     Amendment No. 133, as modified

  I ask unanimous consent that at 12:30 p.m., the Senate proceed to a 
vote in relation to the Feinstein amendment No. 133, as modified, with 
no intervening action or debate; that the time until then be divided 
equally between the proponents and the opponents, and no amendments be 
in order to the Feinstein amendment prior to the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I suggest the absence of a quorum and ask unanimous 
consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Ms. CANTWELL. Madam President, am I correct there is a vote at 12:30?
  The PRESIDING OFFICER. That is correct.
  Ms. CANTWELL. The time is equally divided on the Feinstein amendment?
  The PRESIDING OFFICER. Correct.
  Ms. CANTWELL. Madam President, I rise to support the Feinstein 
amendment and to ask my colleagues, who I know have been working 
diligently on the legislation for several years now, to respect the 
very tough balance that has been sought in this legislation as this 
legislation came out of the Judiciary Committee.
  I know we adopted a managers' amendment yesterday, and I know that 
managers' amendment now is catching a lot of people off guard because 
there are far more changes than people realized in that managers' 
amendment that I think upsets that apple cart of balance that was 
struck in the Judiciary Committee.
  So I am urging my colleagues to support the Feinstein amendment and 
expressing my concern for the underlying bill that is something that, 
at this point in time, I cannot support.
  I do not come to that decision lightly nor because of the fact that I 
have many high-tech companies in the State of Washington that might say 
we need patent reform and that this is good innovation. But large high-
tech companies are not the only ones that know something about 
innovation. In fact, most of the people who have helped build those 
organizations were once the small inventors themselves of key 
technology.
  What is at stake is unbalancing the apple cart as exists today to 
innovation--not just innovation in general but innovation in an 
information age. The meal ticket for all of us is going to be the 
invention and creation of new products and services. So that is the 
great time and age we live in.
  But if in this legislation we all of a sudden upset that apple cart, 
where we are tilting the playing field in support of large corporations 
that have already made their mark and made their markets and made their 
success and have slowed down on the rate and progress of innovation 
within their companies and do a lot to acquire technology from smaller 
inventors--and now, all of a sudden in this underlying bill, 
particularly in the area of damages, make sure the big corporations can 
win in any kind of legal dispute against the technology holder or 
creator because they are able to outlast them in a legal battle because 
they are more well financed, more well heeled, with the ability to draw 
out this battle--because of that change in the underlying bill, we 
leave the small guy without many resources.
  The only thing the small inventor has is their intellectual property 
and a fair day in court. If now we take that away from them, I 
guarantee you, they will have less success. Then, when you have less 
success of having 5,000 flowers bloom, we have a problem.
  This is not about what five or six or seven large corporations can 
create. This is about what thousands and thousands of innovators are 
going to create in the future and whether they are going to be incented 
or disincented to do that.
  The Feinstein amendment tries to protect the current process, to 
protect what are the rights of those inventors today under current law. 
I am sure my colleagues will say: Well, that is not the way the rest of 
the world does it. I would say to my colleagues: I am not sure the way 
the rest of the world does it is the mark we are trying to hit. What we 
are trying to preserve is the entrepreneurial spirit that has been 
created in the United States. I am not saying that is not based on just 
raw creativity of individuals--it is--but it is also based on financial 
incentive and the incentive those individuals have that their 
intellectual property can be protected.
  But if this is going to be a game about the big boys coming to 
Washington and squashing the small inventors, count me out. This has to 
be a level playing field. I get it is tempting to want to, in the last 
minute, stick into the managers' amendment language you could not get 
out of committee. But if we want to get this legislation through this 
process, then we have to take into consideration the rights of the 
inventors along with the rights of those larger companies that are 
trying to acquire or integrate or be part of the manufacturing on a 
larger scale of that inventor's technology.

  So I say to my colleagues, the Feinstein amendment, in keeping the 
rights of the inventors where they are, gives them at least a modicum 
of holding on to that. I think the underlying bill has changed so much 
in the managers' amendment that we are going down a road that is going 
to make it very difficult for us to finally get a piece of legislation. 
We have to respect the rights of the small individuals, and we can't 
have carve-outs for specific jurisdictions such as Wall Street who 
think they can have their cake and eat it too.
  This has to be about how we move forward on a smoother patent 
process. We need to take into consideration that we have gotten to this 
great place in our country because we have had a balance and an 
empowerment of these technologies. We should not all of a sudden in one 
fell swoop take that away on the Senate floor and basically undermine 
what is the creative opportunity for the U.S. economy, which is an 
invention. We want thousands and thousands of inventors--not just 
inventors who work for big corporations--thousands of inventors who 
have their rights.
  So I support the Feinstein amendment.
  I thank the President, and I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I thank the Senator from Washington 
for her comments. We welcome her support. I was pleased to be able to 
listen to her comments.
  What is the current status of the time allocation?
  The PRESIDING OFFICER. The proponents have 3\1/2\ minutes remaining, 
and the opponents have 10 minutes remaining.
  Mrs. FEINSTEIN. I ask unanimous consent that our 3\1/2\ minutes be 
extended so that Senator Risch, who will speak next, has the time he 
requires, and I have the time for a few brief closing remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Thank you very much.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. RISCH. Madam President, I am proud to come to the floor today to 
speak on the amendment to which I am a cosponsor.
  This is simply a matter of fairness. With all due respect to my 
colleague from Washington, referencing her comments about the big boys 
versus the small inventors and what have you, I don't view it as that 
at all. I view it as a fairness issue: The person who created the 
invention gets the benefits of that creation, not the person with the 
fastest tennis shoes. That is what we are doing.
  We are creating what is called a race notice statute, which is 
similar to what is in place in many States on real estate filings. It 
has a legitimate place in the real estate market but not here. With so 
much on the line, with creativity on the line, it should be the person 
who actually does the invention who reaps the benefits of that 
invention, and that is all this does.
  The other thing I think is so important is it preserves the situation 
we

[[Page S1182]]

have had for many years in place. I have heard people say: Oh, well, 
this is a poison pill. If you take this out, it kills the bill. That 
isn't the case at all. It simply preserves the situation we have in 
place today. It is the right thing to do. It is the fair thing to do.
  I urge an affirmative vote for this amendment.
  I yield the floor to my colleague from California, Senator Feinstein.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Thank you very much, Madam President. I thank Senator 
Risch for his cosponsorship, and, of course, I agree exactly with his 
statement.
  At this time I wish to briefly summarize the arguments in favor of 
our amendment to strike the first-to-file provisions from this bill. 
This amendment is cosponsored, as I said, by Senator Risch, Majority 
Leader Reid, Senators Crapo, Boxer, Ensign, and I ask unanimous consent 
to add Senator Begich.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Thank you, Madam President.
  Proponents of the first-to-file argue that the rest of the world 
follows this system and making this change will harmonize our system 
with theirs, and that is true. But under our first-to-invent system, 
our Nation has been by far the leader in the field of innovation, the 
leader in the field of new patents, new discoveries, new inventions. 
The other first-to-file countries have been playing catchup with our 
technological advances. I wouldn't trade our record of innovation for 
any of theirs, and I doubt many Members of this body disagree with me 
if they really think about it.
  Think about the history of innovation. What sets America apart is so 
many of our great inventions start out in small garages and labs, with 
driven, inspired people who have great ideas, develop them, and then 
they take off. I mentioned companies that have started this way 
yesterday, including Hewlett Packard, Apple, and Google, and there are 
hundreds and perhaps thousands of others. They started from humble 
beginnings, and they grew spectacularly, creating jobs for millions of 
Americans and lifting up our economy and standard of living.
  I know an inventor who invented Skyy vodka. The vodka he drank 
disturbed his stomach, so he figured out biologically and chemically 
what it was, and he invented a vodka called Skyy vodka--a small 
inventor. I think that company was subsequently sold for a great deal 
of money. But it started with one man who had a stomachache from 
drinking vodka.
  Now, this may be just one type of example, but Apple is certainly 
another example. It started in a garage many years ago in California, 
and out of that emerged this giant company. So these companies started 
from humble beginnings. They grew. This created jobs for millions of 
Americans. They lifted our economy and our standard of living.
  The National Small Business Association is a supporter of this 
amendment, and just last week other small business inventor groups have 
joined them in saying that first-to-file ``disrupts the unique American 
start-up ecosystem that has led to America's standing as the global 
innovation leader.''
  First-to-invent has served our country well. Here are the main 
problems, as I see them, with the bill's first-to-file system: First, 
the grace period. It ``guts'' the current grace period, in the words of 
a letter from 108 startups and small businesses that protect inventors' 
rights to their inventions for 1 year from offering them for sale or 
making a public use of them, among other things, before they have to 
file a patent application with the Patent Office. So there is this 1-
year grace period for them to get their act together.

  Now, under the present system, instead of preparing a costly patent 
filing, they can concentrate on developing their invention and 
obtaining necessary funding.
  The majority leader just circulated a statement to Members which 
speaks to this grace period. I wish to quote one part of that 
statement:

       The grace period comports with the reality of small entity 
     financing through friends, family, possible patent licensees, 
     and venture capitalists. The grace period allows small 
     inventors to have conversations about their invention and to 
     line up funding before going to the considerable expense of 
     filing a patent application.

  The grace period allows them to not have to race to the Patent Office 
because they are afraid somebody else might have heard the 
conversation, might have stolen it from them, and moved on.
  Senator Reid goes on:

       In fact, in many ways, the one-year grace period helps 
     improve patent quality--inventors find out which ideas can 
     attract capital, and focus their efforts on those ideas, 
     dropping along the way other ideas and inventions that don't 
     attract similar interest and may not therefore be 
     commercially meaningful.

  So this first-to-file essentially replaces this critical innovation-
protecting provision with a more limited and murky grace period that 
only runs from the undefined term of ``disclosure.'' There is no 
discovery. Litigation is sure to ensue as courts interpret this term, 
creating uncertainty that I believe will chill investment in startups 
which in turn will damper innovation and job growth.
  Unfortunately, first-to-file incentivizes inventors to race to the 
Patent Office, to protect as many of their ideas as soon as possible, 
so that they are not beaten to the punch by a rival. Thus, first-to-
file will likely result in significant overfiling of dead-end 
inventions, unnecessarily burdening both the Patent Office and 
especially small inventors.
  The third reason, difficulty of proving copying. The third major 
problem with this bill's system is the difficulty of proving that 
someone copied an invention. Currently, you as a first inventor can 
prove that you were first by presenting evidence that is in your 
control--this is under first-to-invent--your own records 
contemporaneously documenting the development of your invention. But 
under this bill, to prove that someone else's patent application came 
from you, was derived from you, you would have to submit documents 
showing this copying. Because there is no discovery, you wouldn't have 
those documents in your possession, so it makes proving your invention 
much more difficult. The bill doesn't provide for any discovery in 
these ``derivation proceedings.'' Therefore, the first inventor can't 
prove his or her claim because he or she does not have access to the 
documents of the alleged copier.
  Mr. LEAHY. Madam President, if the Senator will yield, how much time 
is remaining?
  Mrs. FEINSTEIN. I will just take 2 minutes more.
  The PRESIDING OFFICER. The Senator from California by consent is 
using the opponent's time.
  Mr. LEAHY. Is using my time?
  Mrs. FEINSTEIN. No. I have asked to extend our time.
  Mr. LEAHY. Madam President, we are supposed to vote at 12:30. I 
realize the Senator couldn't be here when her amendment was brought up 
and couldn't be here when her amendment was modified. We did that for 
her. But I am in opposition to it, and I should at least have some of 
my time to be able to use.
  Mrs. FEINSTEIN. I will be very happy to--I was here yesterday. I did 
speak on the floor, Mr. Chairman. I did, in a rather lengthy speech, 
indicate the arguments. I have asked for just a short period of time. 
My remarks are no more than five pages, which should take me 1\1/2\ 
more minutes to conclude. I hope I would be offered that time.
  Mr. LEAHY. Madam President, at the hour of 12:30 we are supposed to 
vote. I would ask unanimous consent, so far as my time has been used by 
those in another position, that Senator Grassley and I have 4 minutes 
back of our time.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator has consent.
  Mrs. FEINSTEIN. Fine. Then I would ask that my time on this side be 
extended for another 1\1/2\ minutes.
  The PRESIDING OFFICER. The Senator has that time.
  Mrs. FEINSTEIN. Thank you very much.
  So I have outlined the difficulty of proving copying under the first-
to-file system.
  Disputes about who is the first to invent are resolved by the Patent 
Office in what is called an interference proceeding, which number only 
about 50 a year out of 480,000 patent applications.

[[Page S1183]]

The opposition infers that this is a huge problem. Fifty a year out of 
480,000 patent applications is a very small percentage.
  As I said in the beginning, America leads the world under the first-
to-invent system. I don't think we should fix what isn't broken. This 
works for people who have great ideas but don't have money, who begin 
in a garage or in a lab. It has worked well for our system.
  I ask my colleagues to join Senator Risch, Majority Leader Reid, 
Senators Crapo, Boxer, Ensign, Begich, and myself in voting yes on this 
amendment.
  I yield the floor.
  Mr. LEAHY. Madam President, as I said earlier, Secretary Locke 
confronted the notion that the current outdated system is better for 
small independent inventors. He said the cost of proving that one was 
first to invent is prohibitive and requires detailed, complex 
documentation of the invention process. In cases where there is a 
dispute about who the actual inventor is, it typically costs at least 
$400,000 in legal fees and even more if the case is appealed. By 
comparison, establishing a filing date through provisional application 
to establish priority of invention costs just $110.
  I appreciate the work of the Senator from California, but her 
amendment is a killer amendment. It would kill this bill. Our bill is 
set up so that it will allow us to compete with the rest of the world. 
Right now, we are behind the rest of the world in our patent system. 
Our bill as it is written allows us to compete with the rest of the 
world. Her amendment would hold us back and give an advantage to those 
countries with which we have to compete.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I associate myself with the remarks of 
the chairman of the committee. I ask that people on my side of the 
aisle not support the Feinstein amendment.
  At this point, I move to table the Feinstein amendment and ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the motion to table the Feinstein 
amendment, as modified.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 87, nays 13, as follows:

                      [Rollcall Vote No. 31 Leg.]

                                YEAS--87

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Brown (OH)
     Burr
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     DeMint
     Durbin
     Enzi
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Paul
     Portman
     Pryor
     Reed
     Roberts
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--13

     Begich
     Boxer
     Cantwell
     Crapo
     Ensign
     Feinstein
     Inouye
     Nelson (FL)
     Reid
     Risch
     Rockefeller
     Tester
     Wyden
  The motion was agreed to.
  Mr. LEAHY. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Michigan.


                           Amendment No. 126

  Ms. STABENOW. Madam President, I will call up amendment No. 126. I 
understand it will be agreed to. I ask unanimous consent that the 
pending amendments be set aside and I call up amendment No. 126.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Michigan [Ms. Stabenow], for herself and 
     Mr. Levin, proposes an amendment numbered 126.

  Mr. LEAHY. Madam 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 designate the satellite office of the United States Patent 
and Trademark Office to be located in Detroit, Michigan as the ``Elijah 
         J. McCoy United States Patent and Trademark Office'')

       On page 104, strike line 23 and insert the following:

     SEC. 18. DESIGNATION OF DETROIT SATELLITE OFFICE.

       (a) Designation.--The satellite office of the United States 
     Patent and Trademark Office to be located in Detroit, 
     Michigan shall be known and designated as the ``Elijah J. 
     McCoy United States Patent and Trademark Office''.
       (b) References.--Any reference in a law, map, regulation, 
     document, paper, or other record of the United States to the 
     satellite office of the United States Patent and Trademark 
     Office to be located in Detroit, Michigan referred to in 
     subsection (a) shall be deemed to be a reference to the 
     ``Elijah J. McCoy United States Patent and Trademark 
     Office''.

     SEC. 19. EFFECTIVE DATE.

  Mr. LEAHY. I ask that it be adopted.
  The PRESIDING OFFICER. If there is no further debate, the question is 
on agreeing to the amendment.
  The amendment (No. 126) was agreed to.
  Mr. LEAHY. Madam President, I move to reconsider the vote.
  Ms. STABENOW. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. I yield to the Senator from Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Madam President, I thank the distinguished chairman of 
the Judiciary Committee and our ranking member and those who are 
working very hard on a very important jobs bill today. On behalf of the 
people of Detroit, the people of Michigan and Senator Levin and myself, 
I thank very much the Members for their support of this amendment.
  Madam President, just few months ago, we learned that Detroit, MI, 
will be home to the first-ever satellite office of the U.S. Patent and 
Trademark Office. This office is such great news for Michigan, where we 
have a proud tradition of innovation and invention.
  Every day, we are looking to innovate and create ``the next big 
thing.'' The decision to locate this satellite office in Detroit shows 
just how much new invention is happening in Michigan. Thanks to some of 
the best research universities in the country, with an incredibly 
skilled workforce, we have become third in the nation in terms of clean 
energy patents. And we are getting new patents every single day.
  In addition to clean energy, Michigan is home to groundbreaking 
research in fields such as agriculture, defense technology, medical 
technology and pharmaceuticals, advanced batteries, and, of course, 
automobiles.
  This patent office will help us continue that tradition of 
innovation, while reducing the backlog of patent applications so those 
new products can get to the market faster.
  It makes perfect sense to locate this new satellite office in 
Detroit.
  Today I am offering, along with Senator Levin, amendment No. 126 to 
the America Invents Act to name this new facility after a great 
Michigan inventor, Elijah McCoy.
  His life captures the spirit of Michigan ingenuity and 
entrepreneurship. His parents escaped slavery and fled across the 
border to Canada. After training as an apprentice in Scotland, he came 
to Ypsilanti, Michigan and set up a home-based invention shop.
  Over the course of his brilliant life, Elijah McCoy secured more than 
50 patents, but he is best known for his inventions that revolutionized 
how our heavy-duty machinery, including locomotives, function today. In 
July of 1872, he invented the automatic lubricator, a device that kept 
steam engines working properly so trains could run faster and longer 
without stopping for service.
  His invention was incredibly effective and many tried to copy his 
idea,

[[Page S1184]]

but nobody could match McCoy's idea. Machinists started asking if the 
engines were using the ``real McCoy'' technology, and people still use 
that phrase today when they want the best quality product.
  He did not have an easy journey. As an African American, he was kept 
out of many of the histories of the industrial revolution. Despite his 
brilliance, he was only ever allowed to work in menial jobs on the 
railroad tracks.
  But despite the racial prejudice, Elijah McCoy never gave up and 
continued inventing. In 1976, the city of Detroit celebrated Elijah 
McCoy day and dedicated his home as a historic site. In Detroit, Elijah 
McCoy Drive runs between Trumball and the Lodge, near Henry Ford 
Hospital. He is buried in Warren, MI.
  It is a great honor for Michigan that the first-ever Patent and 
Trademark Satellite Office will be named for this great leader and 
great inspiration for Detroit.
  It is a great honor for us to have this first-ever patent and 
trademark satellite office in Detroit and to have it named after a 
great leader who has provided great inspiration.
  I thank my colleagues very much for supporting this amendment.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coons). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Blaming Workers

  Mr. BROWN of Ohio. Mr. President, we have all watched the news 
stories--from Madison, WI; Columbus, OH; Trenton, NJ, and other places 
around the country--where public employees, when you really analyze it, 
are paid more or less, including benefits and depending on the place, 
comparable to the private sector worker. Whether they are high school 
graduates or college graduates or whatever, the overall pay and 
benefits are pretty similar. We have seen around the country that these 
public employees are in most cases willing to share in the sacrifice of 
balancing budgets and share in the sacrifice of fighting back against 
this bad economy. In fact, we know that workers--teachers, police 
officers, nurses, people working at the unemployment bureaus, people 
working at the Department of the Interior, wherever--have taken pretty 
big hits already in terms of lost jobs, in terms of no raises, in terms 
of paying more for their health benefits.
  So we know that even though these are not the people who caused the 
recession any more than the workers at Lordstown, OH, assembling cars 
or Defiance, OH, building engines or Northwood, OH, making bumpers for 
the Chevy Cruze are responsible for the failure of the automobile 
industry, there just seems to be, as we have seen from these 
ideological conservative Governors, an assault all over the country 
blaming workers, whether they are public or private workers, for the 
problems in this economy.
  They continue to want to give tax cuts to the richest people on Wall 
Street, as they take their bonuses and make big dollars and see their 
incomes go like this, but as workers have pretty much had no real 
increase in the last 10 years--wages have been mostly stagnant--how can 
you blame the workers for this? That is what we have seen around the 
country.
  It has been so interesting. Two days ago in Columbus, OH, 8,500 
people demonstrated not against budget cuts, because they know those 
are coming, but against this direct assault by the government--by the 
Governor and legislative leaders--on the right to organize and bargain 
collectively. That is a right that has been part of Americana, a part 
of our values for 75 years.
  Why do they think we have a middle class? We have a middle class 
because workers have been able to band together and say to a company 
that is very profitable: We should get some of that profit you are 
making because we are your workers and we have made your company more 
prosperous.
  Management is important and crucial, but workers are important and 
crucial. As worker wages go up, management wages typically go up. But 
we have seen worker wages remain stagnant, in part because of a lack of 
unionization or a decline in unionization.
  Now we are also seeing in Madison, Columbus, Trenton, Harrisburg, 
Indianapolis, Lansing, in these capital cities, especially in my part 
of the country, a real play on fear. They are trying to turn private 
sector workers against public sector workers. They blame the UAW--the 
auto workers--for the problems in the auto industry. Now they are 
blaming public workers for problems with State budgets and trying to 
work the private sector and union workers against each other, fighting 
with each other. That is the most base Karl Rove-type politics, to turn 
working-class people against one another. It is wrong. It is morally 
wrong, it is politically wrong, and it is very wrong for our country.
  What has also been interesting about these protests is that they are 
not all steelworkers and electricians and American Federation of 
Government Employees and AFSCME and SCMU. There are people of faith 
also involved.
  I did a roundtable at an Episcopal church right off statehouse 
square, and the leaders of the church and some of the volunteers of the 
church were there. Now, I don't preach or wear my Christianity on my 
sleeve, but these people of faith understand that the Bible talks a lot 
about poverty and a lot about fairness and equality and egalitarianism, 
if you will, but for them to go against workers on behalf of the 
richest people in our country--and that is really what they are doing 
in the Governors' offices in Columbus and Madison and Trenton and other 
places--runs counter at least to my faith. I will not judge their 
faith. They worship what God they worship and read what scripture they 
read. But when I look at what my faith means--and as I said, I am a 
Lutheran, I am not a Catholic--but when I look at Leo the XIII and what 
he said about what Catholicism means for workers and fairness, it is 
point, set, match. That clearly spoke definitively about this.
  Mr. President, I have said this on the floor before today, but I wear 
this pin on my lapel. It is the depiction of a canary in a birdcage. 
One hundred years ago, miners took a canary down in the mines. If the 
canary died from lack of oxygen or from toxic gas, the miner got out of 
the mine. He only had himself to depend on. He didn't have a government 
that cared much in those days to write safety laws, particularly child 
safety laws, on the mines. He didn't have a union strong enough in 
those days to fight back.
  Too many people who are ultraconservative--and there are many in both 
the Senate and the House--want to go back to those days. They want to 
eliminate worker safety laws, and they want to eliminate minimum wage. 
They are clearly going after collective bargaining and so many of the 
things we hold dear.
  Again, it wasn't the UAW workers, it wasn't the Service Employees 
Union workers at the State capital who caused this financial crisis. 
They have been the victims of it, just as a whole bunch of nonunion 
workers have. This financial crisis was caused by greed, by people 
overreaching, by the richest in our society grabbing and grabbing and 
grabbing for more wealth. Yet they are going to turn this--let's change 
the subject--against those workers. That has happened far too many 
times in our country.
  I am a new member of the Senate Appropriations Committee, and I am 
lucky enough to serve on Senator Leahy's Subcommittee on State, Foreign 
Operations, and Related Programs. We brought the Secretary of State 
in--Secretary Clinton--to talk to us about the State Department's 
budget.
  One of the things she said--and I mentioned Madison and Columbus 
after she said it--but one of the things she said is, it has been 
unions in Egypt, it has been workers in Egypt and Tunisia and around 
the world, it has been workers who so often, sometimes through their 
unions--if they are allowed to have unions, sometimes through a more 
informal collection of people in what might look like a union but is 
not formalized--fought for freedom, fought for equality. A lot of the 
problems in Tunisia and Egypt were because people were hungry--not just 
because they want freedom, but they also

[[Page S1185]]

want fairness and a chance to make a living.
  But one of the things Secretary Clinton talked about is, yes, this 
administration is actually enforcing labor laws in Guatemala, this 
administration will enforce labor laws in the labor component of our 
trade agreements across the world because we as a country stand for a 
more egalitarian workforce. We stand for workers rights. We believe 
workers should organize and bargain collectively, if they choose. We 
believe in a minimum wage. We believe in workers' compensation. We 
believe in workers' safety. We believe in human rights. All of that is 
about the labor movement.
  You can support labor rights in Guatemala, but you better be damned 
sure you are supporting labor rights in Wilmington and Columbus and 
Cleveland and Detroit and Dover, DE, and everywhere else. Those were 
some of the words Secretary Clinton said. I am obviously expanding on 
them.
  I looked back in history and some of the worst governments we ever 
had, do you know the first thing they did? They went after the trade 
unions. Hitler didn't want unions. Stalin didn't want unions. Mubarak 
didn't want unions. These autocrats in history did not want independent 
unions. So when I see Egypt or I see old Soviet Russia and history 
tells me about Germany--I am not comparing what is happening to the 
workers in Madison or in Columbus to Hitler and Stalin. But I am 
saying, history teaches us that unions are a very positive force in 
society that creates a middle class and that protects our freedom.
  So don't tell me you support unions internationally but you don't 
support unions here. Don't tell me you support collective bargaining in 
Poland but you oppose collective bargaining in Zanesville or Dayton, 
OH, because, frankly, that is inconsistent and ultimately it is not 
taking the side of people whom we are supposed to represent.
  I am proud of my State. About two or three blocks from the capitol, 
in 1876, the capitol in Columbus, the American Federation of Labor was 
formed. What we know now as the AFL/CIO began in Columbus, OH, in 1876, 
when some workers got together thinking there was some strength and 
some safety in numbers and they were going to have a better standard of 
living and better country and more freedom for all if they began to 
coalesce in a group of people--not to bust a hole in the State budget, 
not to hurt companies but to make sure the workers were represented and 
get a fair shake in the society.
  It is all pretty simple. We have a strong middle class in this 
country because we have the right to organize and bargain collectively. 
We have a strong middle class in this country because we are a 
democracy, because workers can share in some of the wealth they create 
for their employers. So I hope 10 years from now--I know in Delaware 
this is something we fought for with manufacturing and middle class and 
all--we will see, as productivity goes up and profits go up, that 
workers' wages will go up too. It is the American way. It is what we 
stand for. Nothing in our society, frankly, is more important than a 
prosperous middle class and what it brings to us in terms of freedom 
and equality.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sanders). Without objection, it is so 
ordered.

                          ____________________