[Congressional Record Volume 157, Number 130 (Tuesday, September 6, 2011)]
[Senate]
[Pages S5326-S5328]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          America Invents Act

  Mr. LEAHY. Mr. President, I ask unanimous consent that I use my 
remaining time to speak as in morning business about the America 
Invents Act and the cloture vote that will be taken tonight on 
proceeding to that important measure.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. The Senate is today turning its attention back to the 
America Invents Act--a measure that will help create jobs, energize the 
economy and promote innovation without adding a penny to the deficit. 
This legislation is a key component of both Democratic and Republican 
jobs agendas, and is a priority of the Obama administration.
  Too often in recent years, good legislation has failed in the Senate 
because bills have become politicized. That should not be the case with 
patent reform. Innovation and economic development are not uniquely 
Democratic or Republican objectives--they are American goals. That is 
why so many Democratic and Republican Senators have worked closely on 
this legislation for years, along with a similar bipartisan coalition 
of House Members.
  And that is why a Democratic chairman of the Senate Judiciary 
Committee can stand on the floor of the Senate and advocate, as I do 
today, that the Senate pass a House bill, H.R. 1249, sponsored by the 
Republican chairman of the House Judiciary Committee, Lamar Smith of 
Texas. As Chairman Smith and I wrote earlier this year in a joint 
editorial, ``Patent reform unleashes American innovation, allowing 
patent holders to capitalize on their inventions and create products 
and jobs.''
  This bill, which passed the House with more than 300 votes, will make 
crucial improvements to our outdated patent system. These improvements 
can be divided into three important categories that are particularly 
noteworthy.
  First, the bill will speed the time it takes for applications on true 
inventions to issue as high quality patents, which can then be 
commercialized and used to create jobs. There are nearly 700,000 
applications pending at the Patent and Trademark Office (PTO) that have 
yet to receive any action by the PTO. The Director of the PTO often 
says that the next great invention that will drive our economic growth 
is likely sitting in that backlog of applications.
  The America Invents Act will ensure that the PTO has the resources it 
needs to work through its backlog of applications more quickly. The 
bill accomplishes this objective by authorizing the PTO to set its fees 
and creates a PTO reserve fund for any fees collected above the 
appropriated amounts in a given year--so that only the PTO will have 
access to these fees.
  Importantly, the bill also provides immediate tools the PTO needs to 
fast track applications, and continues discounts for fast tracked 
applications requested by small business, as well as for applications 
involving technologies important to the Nation's economy or national 
competitiveness, thanks to amendments offered in the Senate by Senators 
Bennet and Menendez.
  Second, the America Invents Act will improve the quality of both new 
patents issued by the PTO, as well as existing patents. High quality 
patents incentivize inventors and entrepreneurs by providing a limited 
monopoly over the invention. Low quality patents, conversely, can 
impede innovation if the product or process already exists.
  The bill makes commonsense improvements to the system by allowing, 
for example, third parties to comment on pending applications so that 
patent examiners will have more and better information readily 
available. The bill also implements a National Academy of Sciences 
recommendation by creating a postgrant review process to weed out 
recently issued patents that should not have been issued in the first 
place.
  The bill will also improve upon the current system for challenging 
the validity of a patent at the PTO. The current inter partes 
reexamination process has been criticized for being too easy to 
initiate and used to harass legitimate patent owners, while being too 
lengthy and unwieldy to actually serve as an alternative to litigation 
when users are confronted with patents of dubious validity.
  Third, the America Invents Act will transition our patent filing 
system from a first-to-invent system to the more objective first-
inventor-to-file system, used throughout the rest of the world, while 
retaining the important grace period that will protect universities and 
small inventors, in particular. As business competition has gone 
global, and inventors are increasingly filing applications in the 
United States and other countries for protection of their inventions, 
our current system puts American inventors and businesses at a 
disadvantage.
  The differences cause confusion and inefficiencies for American 
companies

[[Page S5327]]

and innovators. These problems exist both in the application process 
and in determining what counts as ``prior art'' in litigation. We 
debated this change at some length in connection with the Feinstein 
amendment in March. That amendment was rejected by the Senate by a vote 
of 87 to 13. The Senate has come down firmly and decisively in favor or 
modernizing and harmonizing the American patent system with the rest of 
the world.
  The House, to its credit, improved on the Senate bill in this area by 
including an expanded prior user right with the transition to a first-
inventor-to-file system. Prior user rights are important for American 
manufacturing, in particular.
  There is widespread support for the America Invents Act, and with 
good reason. In March, just before the Senate voted 95-5 to pass the 
America Invents Act, The New York Times editorialized that the America 
Invents Act will move America ``toward a more effective and transparent 
patent protection system'' that will ``encourage investment in 
inventions'' and ``should benefit the little guy'' by transitioning to 
a first-inventor-to-file system.
  A few weeks ago, the Washington Post editorial board added that 
``[i]n the six decades since its last overhaul, the patent system has 
become creaky,'' but the patent bill ``poised for final approval in the 
Senate would go a long way toward curing [the] problems.''
  The Obama administration issued a Statement of Administration Policy 
in connection with the House bill, in which it argued that ``[t]he 
bill's much-needed reforms to the Nation's patent system will speed 
deployment of innovative products to market and promote job creation, 
economic growth, and U.S. economic competitiveness all at no cost to 
American taxpayers.''
  The House bill is not the exact bill I would have written. It 
contains provisions that were not in the Senate bill, and it omits or 
changes other provisions from the Senate bill that I supported. But 
that is the legislative process, and the core elements of the House 
bill are identical or nearly identical to the core elements of the 
Senate bill. In addition, the House bill retains amendments adopted 
during Senate consideration of S. 23, including amendments offered by 
Senator Bennet, Senator Menendez, Senator Kirk, Senator Stabenow, 
Senator Bingaman, and Senator Reid, among others.
  The America Invents Act, as passed by the House, will not only 
implement an improved patent system that will grow the economy and 
create jobs, but it is the product of a process of which we should all 
be proud. Democrats and Republicans in the House and Senate have worked 
together with the administration and all interested stakeholders large 
and small to craft legislation that has near unanimous support.
  I thank Senator Kyl, the minority whip, for his comments early today. 
I agree with him that sending this House-passed bill directly to the 
President will begin the process of demonstrating to the American 
people that we can work together, Democrats and Republicans, House and 
Senate, on their behalf.
  Those now advocating for enactment of the America Invents Act without 
further amendment include the United States Chamber of Commerce, the 
United Steelworkers, the National Association of Manufacturers, the 
Association of American Universities, BIO and PhRMA, Community Bankers, 
the Coalition for 21st Century Patent Reform, the Coalition for Patent 
Fairness, the Small Business & Entrepreneurship Council, and businesses 
representing virtually every sector of our economy.
  In a recent letter from Louis Foreman, a well known independent 
inventor, he wrote of his support for the America Invents Act saying:

       The independent inventor has been well represented 
     throughout this process and we are in a unique situation 
     where there is overwhelming support for this legislation. . . 
     . H.R. 1249 is the catalyst necessary to incentivize 
     inventors and entrepreneurs to create the companies that will 
     get our country back on the right path and generate the jobs 
     we sorely need.

  American ingenuity and innovation have been a cornerstone of the 
American economy from the time Thomas Jefferson examined the first 
patent application to today. A recent Department of Commerce report 
attributes three-quarters of America's post-World War II economic 
growth to innovation. It is the patent system that incentivizes that 
innovation when it holds true to the constitutional imperative to 
``promote the progress of science and useful arts, by securing for 
limited times to . . . inventors the exclusive right to their 
respective . . . discoveries.''
  The Founders recognized the importance of promoting innovation. A 
number were themselves inventors. The Constitution explicitly grants 
Congress the power to ``promote the progress of science and useful 
arts, by securing for limited times to . . . inventors the exclusive 
right to their respective . . . discoveries.'' The time for Congress to 
undertake this responsibility and enact patent reform legislation into 
law is now.
  The discoveries made by American inventors and research institutions, 
commercialized by American companies, and protected and promoted by 
American patent laws have made our system the envy of the world. But we 
cannot stand on a 1950s patent system and expect our innovators to 
flourish in a 21st century world.
  The America Invents Act will keep America in its longstanding 
position at the pinnacle of innovation. This bill will establish a more 
efficient and streamlined patent system that will improve patent 
quality and limit unnecessary and counterproductive litigation costs, 
while making sure no party's access to court is denied.
  The President recently called on Congress to pass patent reform as 
soon as it returned from recess because it will create jobs and improve 
the economy without adding to the deficit. This bill is bipartisan, it 
is the product of years of thoughtful bicameral discussions, and it 
should be sent to the President's desk this week. There is no reason 
for delay.
  When we proceeded to the Senate version of this legislation last 
February, we did so by unanimous consent. The Senate proceeded to 
approve patent reform legislation with 95 votes. It is disappointing 
that we are being delayed from completing this important legislation. 
Further delay does nothing for American inventors, the American economy 
or the creation of American jobs. It is time, time to take final action 
on the America Invents Act.
  I see the time has arrived. Is the rollcall automatic?
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  Is all time yielded back?
  Mr. LEAHY. I yield back.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Bernice Bouie Donald, of Tennessee, to be 
United States Circuit Judge for the Sixth Circuit?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller), is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Florida (Mr. Rubio).
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 96, nays 2, as follows:

                      [Rollcall Vote No. 124 Ex.]

                                YEAS--96

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     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)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)

[[Page S5328]]


     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--2

     DeMint
     Vitter
       

                             NOT VOTING--2

     Rockefeller
     Rubio
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.

                          ____________________