[Congressional Record Volume 157, Number 33 (Monday, March 7, 2011)]
[Senate]
[Pages S1323-S1326]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATENT REFORM ACT OF 2011--Resumed
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on S. 23, the America
Invents Act.
Harry Reid, Patrick J. Leahy, Debbie Stabenow, John F.
Kerry, Jeanne Shaheen, Christopher A. Coons, Tom
Harkin, Mark Begich, Jeff Bingaman, Al Franken, Kay R.
Hagan, Michael F. Bennet, Richard Blumenthal, Sheldon
Whitehouse, Amy Klobuchar, Bill Nelson, Benjamin L.
Cardin, Richard J. Durbin.
(At the request of Mr. Reid, the following statement was ordered to
be printed in the Record.)
Mr. LEAHY. Mr. President, today the Senate will take another
step toward completing action on the America Invents Act. This is
commonsense legislation that will make the first comprehensive reforms
to our Nation's patent system in nearly 60 years. The debate on this
bill since its introduction 6 years ago has been long, and the
compromises have been many. I am confident that the bill before us
today makes the needed changes to bring the U.S. Patent and Trademark
Office into the 21st century.
The America Invents Act is bipartisan legislation that has resulted
from deliberation in both the Senate and House. It has been the topic
of more than a dozen hearings and committee meetings in the Senate, and
countless hours of meetings and negotiations. I had hoped to complete
action on this legislation last week. The additional time has allowed
every Senator the opportunity to come to the floor and speak about the
important matters encompassed by this bill. We have debated and adopted
relevant amendments and debated and rejected other amendments,
including some that were not even relevant to this legislation. This is
a bill that does not spend a dollar of taxpayer money and does not add
to the deficit. It will directly result in millions of dollars being
saved, and indirectly in helping unleash American innovation to create
jobs and help bolster our economy.
Now is the time to act. Now is the time to vote. Now is the time to
move forward with this job-creating bill that will help boost our
economy and restore America's competitive edge in the global
marketplace.
Modernizing our patent system through the America Invents Act will
make America more competitive. It protects innovators and inventors
large and small, from the small independent inventor in Middlesex, VT,
to cutting-edge manufacturers and innovators in Ohio and California. It
will give the Patent and Trademark Office the tools it needs to process
and award the patent for what may be the next life-saving device or
life-changing invention. And the America Invents Act will do all of
this without spending a dollar of taxpayer money. This is a jobs bill
that doesn't add a cent to the deficit. Supporters of this legislation
come from both sides of the aisle, from every corner of the country,
and from every component of the patent community.
This country's first patent was issued to a Vermonter. Thomas
Jefferson, the Secretary of State, examined the application, and
President George Washington signed it. A lot has changed in the more
than 220 years since that first patent was issued. We cannot remain
complacent and expect to remain at the forefront of innovation.
Enacting the America Invents Act is one way in which we can come
together and show the American people that we in Washington are working
together with the future of our country in mind.
I commend Austan Goolsbee, the chair of the President's Council of
Economic Advisers, for his white board presentation today on the
importance of patent reform to help America win the global competition
and create jobs. The creation of more than 220,000 jobs in the private
sector last month, the creation of 1.5 million jobs over the last 12
months, and the unemployment rate finally being reduced to 8.9 percent
are all signs that the efforts we have made over the last 2 years to
stave off the worst recession since the Great Depression are paying off
and the economic recovery is taking hold. The almost full percent point
drop in the unemployment rate over the last three months is the largest
decline in unemployment since 1983. Despite interruptions of economic
activity in many parts of the country caused by winter weather over the
last months and days, despite the extraordinary rise in oil prices, the
Dow Jones industrial average has climbed back to over 12,000 from a low
point of 6,500. Passage of the America Invents Act should help bolster
our economic recovery and keep us on the right path toward business
development and job creation.
I urge all Senators to support the cloture motion on the America
Invents Act. The Nation's economy, American inventors and innovators,
our competitive edge in the global marketplace all will be helped when
we pass this important bill.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on S. 23,
the Patent Reform Act of 2011, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Dakota (Mr.
Conrad), the Senator from Vermont (Mr. Leahy), the Senator from Vermont
(Mr. Sanders), and the Senator from Virginia (Mr. Webb) are necessarily
absent.
[[Page S1324]]
I further announce that, if present and voting, the Senator from
Vermont (Mr. Leahy) would vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Nevada (Mr. Ensign), the Senator from Utah (Mr. Hatch), the
Senator from North Dakota (Mr. Hoeven), the Senator from Georgia (Mr.
Isakson), the Senator from Alaska (Ms. Murkowski), and the Senator from
Kentucky (Mr. Paul).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 87, nays 3, as follows:
[Rollcall Vote No. 34 Leg.]
YEAS--87
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hutchison
Inhofe
Inouye
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Whitehouse
Wicker
Wyden
NAYS--3
Cantwell
Crapo
Risch
NOT VOTING--10
Conrad
Ensign
Hatch
Hoeven
Isakson
Leahy
Murkowski
Paul
Sanders
Webb
The PRESIDING OFFICER. On this vote, the yeas are 87, the nays are 3.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
The clerk will report the pending business.
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.
The PRESIDING OFFICER. The majority leader.
Amendment No. 141, as Modified
Mr. REID. Mr. President, I ask unanimous consent that the pending
amendments be set aside, and I call up an amendment on behalf of
Senators Baucus and Grassley, No. 141; that it be modified with the
changes that are at the desk; further, that the amendment, as modified,
be agreed to, that the motion to reconsider be considered made and laid
upon the table, and that there be no intervening action or debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 141), as modified, was agreed to, as follows:
(Purpose: To clarify that section 14 shall not apply to an invention
that is a computer program product or system used solely for preparing
a tax or information return or other tax filing)
On page 94, between lines 22 and 23, insert the following:
(e) Exclusion.--This section does not apply to that part
of an invention that is a method, apparatus, computer program
product, or system, that is 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.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 114 and 116, Withdrawn
Mr. REID. Mr. President, I ask unanimous consent to withdraw the
pending Leahy and Bennet amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 143
Mr. REID. Mr. President, I call up my amendment, which is No. 143,
which is at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for himself and Mr.
Ensign, proposes an amendment numbered 143.
Mr. REID. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To include public institutions of higher education in EPSCOR
jurisdictions in the definition of a micro entity)
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).''.
Amendment No. 152 to Amendment No. 143
Mr. REID. Mr. President, I now call up a second-degree amendment,
which is No. 152.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] proposes an amendment
numbered 152 to amendment No. 143.
Mr. REID. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide an effective date)
On page 2 of the amendment, after line 11, add the
following:
``(e) Effective Date.--Subsection (d) shall take effect 1
year and 1 day after the date of enactment of the Patent
Reform Act of 2011.''.
Mr. REID. Mr. President, so everyone knows what this amendment does,
we looked at the National Science Foundation regarding a program called
EPSCoR. A number of sparsely populated States are disadvantaged with
this program. However, in talking with a number of Senators, this
amendment we are going to seek modification of at a later time would
have no, zero, effect on scoring. There is no score to it whatsoever.
But we are going to try--not trying to, we are going to include every
State because it costs nothing.
Even though a lot of States are not funded adequately with this
EPSCoR money, there is no reason every State that has a State
university and does something inventive should have to pay exorbitant
patent fees.
It does not cost any money. It is the right thing to do. We will
discuss it at a further time. If someone has some problem with it, we
will have to make a determination. At this stage, I think it would be
the right thing for the country.
Satellite Offices
Mr. BENNET. Mr. President, I thank Chairman Leahy for working to pass
an amendment I introduced last week with Senator Udall to authorize the
Director of the U.S. Patent and Trademark Office, USPTO, to establish
three or more satellite offices. This amendment will go a long way
toward improving the efficiency and quality at the USPTO.
I really appreciate the chairman and ranking member for working with
us to modify the amendment's language in order to address colleagues'
concerns on both sides of the aisle. We struck a good balance to not
tie the hands of the USPTO, allow the Office to take advantage of the
work it has done on the satellite office concept, and ensure
[[Page S1325]]
that PTO can have an open, competitive process in making determinations
for future regional satellite offices. At this moment, I would like to
invite the senior Senator from Colorado, Mark Udall, to enter into a
colloquy to discuss this amendment.
The establishment of regional satellite offices will help the USPTO
recruit and retain workers from across the country. Regional offices
will draw local scientists, engineers and patent attorneys into the
USPTO, which add real world expertise to the patent review process.
They will also increase outreach activities and connection to patent
filers; enhance the ability of the USPTO to recruit and retain patent
examiners; and improve the quality and pendency for patent
applications.
In short, USPTO Director Kappos has already taken steps toward
establishing regional satellite offices. Our amendment is intended to
build on this prior work, which I believe provides a good foundation
for the USPTO improving its footprint in innovation centers across the
country. I know Senator Udall and I will be advocating for a regional
satellite office in Denver, and of course we expect other advocates to
point out the merits of their potential sites as well.
Mr. UDALL of Colorado. I would also like to thank the chairman for
helping us pass this important amendment. Right now, the European Union
uses four geographically diverse patent offices. By only having one
patent office, we are at a competitive disadvantage. We need to have
these regional offices in order to connect innovators and businesses
across the country.
The current lack of regional satellite offices is even more of a
problem when you consider all of the recruitment and retention issues
the USPTO is having with its patent examiner workforce. USPTO is unable
to hire and retain over 6,000 examiners at its single location in
Alexandria, VA. This has resulted in one-third of patent examiners
having been with the USPTO for less than 3 years. USPTO should be
recruiting examiners from across the country. Establishing satellite
offices will help the USPTO develop expertise from all regions of the
country--and I know that a satellite office in Denver, CO, would
attract highly qualified examiners.
Mr. BENNET. I agree with the Senator. We need to be maximizing our
human capital. I have heard from a number of more senior patent
attorneys and engineers in Denver that would love to work for the USPTO
but cannot uproot their families across the country. Having a satellite
office in places like Denver will make sure we are taking advantage of
these high-skilled workers.
While our amendment provides for an open process and does not
constrain the USPTO in making determinations for future offices, we do
hope that the Office can build on its decision making process in 2010.
This process ultimately led to the selection of Detroit as an initial
regional satellite. While Senator Udall and I were disappointed that
Colorado wasn't selected, we respect the thoroughness of the USPTO's
review and do not want all of its hard work in reviewing locations
across the country to go to waste.
Mr. UDALL of Colorado. There really are a number of objective reasons
for choosing Denver. First, opening an office in Colorado will permit
USPTO to recruit and hire from a pool of the best candidates the U.S.
has to offer. Colorado is home to a great number of technology workers
who would be excellent long-term patent examiners for an office located
in Colorado. The technology workforce in Colorado is consistently
ranked in the top-10 in the U.S. in many important categories.
According to a report by Pew Research, Colorado is ranked: third for
percent of workers with a bachelor's degree or more; fifth for number
of workers with science and engineering degrees per capita; fifth for
number of scientists and engineers as a percent of the labor force; and
second for number of patents per 1,000 workers. Additionally, other
Federal agencies have found Colorado to be a great place to locate an
office. Outside of the Washington metro area, Denver has the highest
number of Federal employees per capita.
Because Colorado is a very desirable place to live, locating a
satellite office in Colorado would allow the USPTO to dramatically
improve its ability to recruit and retain its most valuable employees.
According to the report by Pew Research, Colorado is ranked first for
percent of U.S. workers who say they want to live there; and sixth for
the percentage of sunny days. Colorado is also well known for its
reasonable cost of living, especially in comparison to cities located
on the east and west coasts, and Chicago.
Colorado is also centrally located in the U.S. and easily accessible
to the entire country. Our location in the middle of the country
provides convenient access for the technology centers of the West,
Midwest, and Rocky Mountain regions.
Mr. BENNET. I fully agree with Senator Udall. There are a number of
clear, objective reasons why Colorado should be a regional satellite
location for the USPTO. My understanding is that in 2010 the USPTO
applied a number of criteria to review numerous site possibilities.
This criteria included patents granted, per capita; scientists and
engineers in the State, per capita; proximity to law schools and major
research institutions; number of patent attorneys and agents; number of
teleworking PTO patent examiners; and presence of Federal employees,
office space. This approach makes sense. By all accounts--and I admit I
am biased here--Denver is at the top. It is my strong view that when
you factor in our central location and accessibility to the rest of the
country, it makes sense for an office to be located in Denver.
Mr. UDALL of Colorado. I look forward to working closely with the
Senator to advocate for an office in Denver. I think a Western office
will go a long way toward ensuring the success of our patent system.
Mr. BENNET. I thank the Senator.
Mr. SESSIONS. Mr. President, I rise today to speak in support of S.
23, which largely reflects the agreement on patent-reform legislation
that Senator Leahy and I announced last year.
The Judiciary Committee has been working hard on landmark patent
reform legislation for the past 7 years, and has finally reached a
broad, bipartisan agreement. This bill includes important reforms that
will improve the functioning of the Patent and Trademark Office and
will allow the office to reduce its backlog of pending applications.
The bill also makes the long-overdue transition to a first-to-file
system, a change that will help ensure U.S. inventors receive patents
that will also be entitled to priority in foreign countries.
This bill has the support of a broad range of industries and trade
associations, across the economic spectrum, as well as the support of
universities, patent professional organizations, independent
entrepreneurs and labor unions. The PTO and the Commerce Department
also strongly support this legislation. While not all interests are
satisfied, I think it is fair to say that the present agreement has
produced a near consensus on this issue, and has resulted in the
broadest possible support for this reform.
The most important change made by this bill is its adoption of a
first-to-file patent system. Under current U.S. law, when two different
people come up with the same invention, priority is given to the person
who can prove that he first conceived of the invention and was able to
make it work. Under the first-to-file system, by contrast, priority is
given to the first person who not only conceived of the invention and
was able to make it work, but who also filed a disclosure with the PTO
explaining the invention and how to make it work.
The first-to-file system has several important advantages over the
current system. First, it is easy to verify when an inventor filed a
disclosure statement with the PTO. By contrast, under the current
system, invention priority dates are determined by examining the
inventor's notebooks and other records, all of which must have been
contemporaneously validated by a third party. The first-to-file system
not only dispenses with expensive discovery into ``what did the
inventor know and when did he know it,'' it also allows the public to
easily determine an invention's priority date--and whether a patent for
the invention is valid in light of the prior art. Additionally, the
first-to-file system, combined with the use of provisional applications
for patents, also provides an inexpensive and secure way for small
inventors
[[Page S1326]]
to protect their patent application while discussing the invention with
possible investors and other third parties.
Other reforms included in the bill will improve the quality of U.S.
patents over the long term. The bill creates a new post-grant review of
patents, which can be sought within the first 9 months after the patent
is issued and used to raise any challenge to the patent. This will
allow invalid patents that were mistakenly issued by the PTO to be
fixed early in their life, before they disrupt an entire industry or
result in expensive litigation.
The bill also allows third parties to submit prior art relevant to a
patent application before the patent is issued. This will help PTO
determine if the invention is already in the public domain and should
not be patented. This provision will allow the public to help the PTO
correct its mistakes, and ensure that no patent rights are granted for
inventions already available to the public.
The bill also makes structural reforms to post-grant review that were
sought by the PTO. It allows inter partes reexamination to be run as an
adjudicative system, and elevates the threshold for starting post-grant
proceedings. The PTO has insisted that a higher threshold is critical
to its ability to administer these proceedings. By raising the
threshold for starting an inter partes review to a showing of a
``reasonable likelihood'' that a patent is invalid, the bill will allow
the PTO to avoid accepting challenges that were unlikely to win in any
event.
The bill also includes many protections that were long sought by
inventors and patent owners. It preserves estoppel against relitigating
in court those issues that an inter partes challenger reasonably could
have raised in his administrative challenge. It imposes time limits on
starting an inter partes or post-grant review when litigation is
pending. And it imposes a one-year time limit on the duration of these
proceedings. All of these reforms will help to ensure that post-grant
review operates fairly and is not used for purposes of harassment or
delay.
I commend the members of the Judiciary Committee for the work they
have put into this bill and I urge my colleagues to support passage.
____________________