[Congressional Record Volume 157, Number 31 (Thursday, March 3, 2011)]
[Senate]
[Pages S1239-S1240]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 141. Mr. BAUCUS (for himself and Mr. Grassley) submitted an 
amendment intended to be proposed by him to the bill S. 23, to amend 
title 35, United States Code, to provide for patent reform; which was 
ordered to lie on the table; as follows:

       On page 94, between lines 22 and 23, insert the following:
       (e) Exclusion.--This section shall not apply to that part 
     of an invention that is a method, apparatus, computer program 
     product or system used solely for preparing a tax or 
     information return or other tax filing, including one that 
     records, transmits, transfers or organizes data related to 
     such filing.
                                 ______
                                 
  SA 142. Mr. BINGAMAN submitted an amendment intended to be proposed 
by him to the bill S. 23, to amend title 35, United States Code, to 
provide for patent reform; as follows:

       On page 50, between lines 2 and 3, insert the following:
       ``(c) Data on Length of Review.--The Patent and Trademark 
     Office shall make available to the public data describing the 
     length of time between the commencement of each inter partes 
     review and the conclusion of that review.''.
       On page 65, between lines 9 and 10, insert the following:
       ``(c) Data on Length of Review.--The Patent and Trademark 
     Office shall make available to the public data describing the 
     length of time between the commencement of each post-grant 
     review and the conclusion of that review.''.
                                 ______
                                 
  SA 143. Mr. REID of Nevada (for himself and Mr. Ensign) submitted an 
amendment intended to be proposed by him to the bill S. 23, to amend 
title 35, United States Code, to provide for patent reform; which was 
ordered to lie on the table; as follows:

       On page 93, before line 18, insert the following:
       ``(d) EPSCOR.--For purposes of this section, a micro entity 
     shall include an applicant who certifies that--
       ``(1) the applicant's employer, from which the applicant 
     obtains the majority of the applicant's income, is a State 
     public institution of higher education, as defined in section 
     102 of the Higher Education Act of 1965 (20 U.S.C. 1002), in 
     a jurisdiction that is eligible to qualify under the Research 
     Infrastructure Improvement Grant Program administered by the 
     Office of Experimental Program to Stimulate Competitive 
     Research (EPSCoR); or
       ``(2) the applicant has assigned, granted, conveyed, or is 
     under an obligation by contract or law to assign, grant, or 
     convey, a license or other ownership interest in the 
     particular application to such State public institution, 
     which is in a jurisdiction that is eligible to qualify under 
     the Research Infrastructure Improvement Grant Program 
     administered by the Office of Experimental Program to 
     Stimulate Competitive Research (EPSCoR).''.
                                 ______
                                 
  SA 144. Ms. CANTWELL submitted an amendment intended to be proposed 
by her to the bill S. 23, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       At the appropriate place, insert the following:

     SEC. __. DAMAGES.

       Section 284 of title 35, United States Code, is amended--
       (1) by striking ``Upon finding'' and inserting the 
     following: ``(a) In General.--Upon finding'';
       (2) by striking ``fixed by the court'' and all that follows 
     through ``When the damages'' and inserting the following: 
     ``fixed by the court. When the damages'';
       (3) by striking ``shall assess them.'' and all that follows 
     through ``The court may receive'' and inserting the 
     following: ``shall assess them.In either event the court may 
     increase the damages up to 3 times the amount found or 
     assessed. Increased damages under this subsection shall not 
     apply to provisional rights under section 154(d) of this 
     title. The court may receive''; and
       (4) by adding at the end the following:
       ``(b) Procedure for Determining Damages.--
       ``(1) In general.--The court shall identify the 
     methodologies and factors that are relevant to the 
     determination of damages, and the court or jury shall 
     consider only those methodologies and factors relevant to 
     making such determination.
       ``(2) Disclosure of claims.--By no later than the entry of 
     the final pretrial order, unless otherwise ordered by the 
     court, the parties shall state, in writing and with 
     particularity, the methodologies and factors the parties 
     propose for instruction to the jury in determining damages 
     under this section, specifying the relevant underlying legal 
     and factual bases for their assertions.
       ``(3) Sufficiency of evidence.--Prior to the introduction 
     of any evidence concerning the determination of damages, upon 
     motion of either party or sua sponte, the court shall 
     consider whether one or more of a party's damages contentions 
     lacks a legally sufficient evidentiary basis. After providing 
     a nonmovant the opportunity to be heard, and after any 
     further proffer of evidence, briefing, or argument that the 
     court may deem appropriate, the court shall identify on the 
     record those methodologies and factors as to which there is a 
     legally sufficient evidentiary basis, and the court or jury 
     shall consider only those methodologies and factors in making 
     the determination of damages under this section. The court 
     shall only permit the introduction of evidence relating to 
     the determination of damages that is relevant to the 
     methodologies and factors that the court determines may be 
     considered in making the damages determination.
       ``(c) Sequencing.--Any party may request that a patent-
     infringement trial be sequenced so that the trier of fact 
     decides questions of the patent's infringement and validity 
     before the issues of damages and willful infringement are 
     tried to the court or the jury. The court shall grant such a 
     request absent good cause to reject the request, such as the 
     absence of issues of significant damages or infringement and 
     validity. The sequencing of a trial pursuant to this 
     subsection shall not affect other matters, such as the timing 
     of discovery. This subsection does not authorize a party to 
     request that the issues of damages and willful infringement 
     be tried to a jury different than the one that will decide 
     questions of the patent's infringement and validity.''.
                                 ______
                                 
  SA 145. Mr. CARDIN submitted an amendment intended to be proposed by 
him to the bill S. 23, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       On page 83, between lines 6 and 7, insert the following:

[[Page S1240]]

       (8) Report on small public universities and eligible 
     institutions.--Not later than 12 months after the date of 
     enactment of this Act, the Director shall report to Congress 
     on--
       (A) the number of patent applications received by the 
     Patent and Trademark Office during the prior 5-year period 
     from small public universities and eligible institutions, as 
     defined in section 371(a) of the Higher Education Act of 1965 
     (20 U.S.C. 1067q); and
       (B) whether the patent fee structure set forth under this 
     Act and title 35 of the United States Code hinders the 
     ability of such universities and institutions to benefit from 
     the provisions under chapter 18 of title 35, United States 
     Code (commonly known as the ``Bayh-Dole Act'').

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