[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.

                          ____________________