[Congressional Record Volume 157, Number 131 (Wednesday, September 7, 2011)]
[Senate]
[Pages S5353-S5356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LEAHY-SMITH AMERICA INVENTS ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to H.R. 1249,
which the clerk will report by title.
The assistant legislative clerk read as follows:
Motion to proceed to the consideration of H.R. 1249, an act
to amend title 35, United States Code, to provide for patent
reform.
The ACTING PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Madam President, every time I hear discussion about how we
balance the budget, especially coming from the other side of the
aisle--maybe because I have been here long enough--I remember the last
time we did balance the budget during President Clinton's term. We
balanced the budget. We
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created an amazing surplus. We created millions and millions of new
jobs.
But you know what. Not a single Republican voted for that. It passed
in the Senate only because the Vice President of the United States cast
the deciding vote. No Republican voted--we actually had to do more than
just have a bumper sticker ``Let's Balance the Budget.'' We actually
did balance the budget, which required some very tough choices. No
Republican voted for that.
In fact, they all condemned it saying: This would bring about wrack
and ruin, and on and on. It did not. It created an enormous budget
surplus and created 22 million new jobs. We were paying down the
national debt. We left a very large surplus to President Clinton's
successor, President Bush, who immediately wasted it on a needless war
in Iraq and tax cuts, both of which I voted against.
It is also interesting to be lectured by the other side of the aisle
about balancing the budget when they voted to go into two of the
longest wars in our history, and for the first time in our history
voted to pay for them by borrowing the money. Now look where trillions
of dollars will have gone because of Iraq and Afghanistan, and now to
be told that to continue to pay for unnecessary wars we must cut out
things for Americans such as education, medical care, housing,
scientific research, and things such as finding cures for cancer,
Alzheimer's, repairing our aging bridges, roads--even hearing a Member
of the other body saying: We cannot respond to the tragedies caused by
Irene in the distinguished Presiding Officer's home State, mine and
others, unless we take the money from other needs in this country. Yet
that same Member supported an unnecessary war in Iraq and supports
paying for it on the credit card. Come on. Let's be real. Let's start
thinking about things in America.
The Senate began debate last night on the America Invents Act.
Unfortunately, as has happened so many times, we had to invoke cloture
on a motion to proceed to something that has strong support. I would
note that 93 Senators, Republicans and Democrats alike, voted to invoke
cloture on the motion to proceed.
This is a bipartisan consensus bill. It is largely similar to the
legislation the Senate passed in March. Incidentally, we passed that on
a vote of 95 to 5. Some would say these days that we cannot even have a
vote like that on a resolution saying the Sun rises in the east. Here
Republicans and Democrats came together 95 to 5. The Senate can and
should move immediately to pass this bill. It will create good jobs. It
will encourage innovation. It will strengthen our recovering economy,
and it will not cost the taxpayers anything.
I want to commend Senator Hatch, the longtime Republican lead sponsor
of this measure; Senator Grassley, the ranking Republican on the Senate
Judiciary Committee; and Senator Kyl, the Republican whip, for their
support of the bill and for their commitment to making patent reform
become a reality.
This is an effort we have worked on for nearly 6 years. I sometimes
shudder to think of the amount of time my staff and I have spent on
this issue. During those 6 years it has become even more important to
the economy. The time has come to enact this bipartisan, bicameral
legislation.
I ask unanimous consent to have printed in the Record the Statement
of Administration Policy on H.R. 1249 from the Obama administration.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Administration Policy
H.R. 1249--America Invents Act
(Rep. Smith, R-Texas, and 5 cosponsors,
June 21, 2011)
The Administration supports House passage of H.R. 1249 as
modified by the Manager's Amendment, but final legislative
action must ensure that fee collections fully support the
Nation's patent and trademark system.
The 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
bill represents a balanced and well-crafted effort to enhance
the services to patent applicants and America's innovators
provided by the United States Patent and Trademark Office,
USPTO. It does so by supporting the USPTO's efforts to
improve patent quality and reduce the backlog of patent
applications, reducing domestic and global patenting costs
for U.S. companies, providing greater certainty with respect
to patent rights, and offering effective administrative
alternatives to costly and complex litigation.
By adopting a first-inventor-to-file system, the bill
simplifies the process of acquiring intellectual property
rights. This provision provides greater certainty for
innovators, reduces legal costs that often burden small
businesses and independent inventors, and makes it easier for
innovators to market their inventions in the global
marketplace. This legislation also provides authority for the
USPTO to establish and adjust its fees to reflect the actual
costs of the services it provides. In addition, the Manager's
Amendment provides important authority for a 15 percent
surcharge on patent fees and additional fees for ``fast-
track'' patent applications, which will enable the USPTO to
reduce the backlog. Finally, to increase the quality and
certainty of patent rights and offer cost-effective, timely
alternatives to district court litigation, the Administration
also supports provisions in the legislation that would
enhance the opportunities for post-grant review of patents by
the USPTO.
To carry out the new mandates of the legislation and reduce
delays in the patent application process, the USPTO must be
able to use all the fees it collects to serve the users who
pay those fees. In this light, the Administration is
concerned that Section 22 of the Manager's Amendment to H.R.
1249 does not by itself ensure such access. The
Administration looks forward to working with Congress to
provide additional direction that makes clear that the USPTO
will have timely access to all of the fees collected, subject
to the congressional oversight provisions in the bill.
House passage of H.R. 1249 would foster innovation, improve
economic competitiveness, and create jobs at no expense to
taxpayers--all of which are key Administration goals. The
Administration looks forward to working with Congress to
finalize this important bipartisan legislation and ensure
that the USPTO can effectively accomplish its mission to
support America's innovators.
Mr. LEAHY. The statement describes the bill as a balanced and well-
crafted effort to enhance the services to patent applicants and
America's innovators provided by the U.S. Patent Office.
The Statement of Administration Policy emphasizes the bill supports
the USPTO's efforts to improve patent quality, reduce the backlog of
patent applications, reducing domestic and global costs for U.S.
companies. I underscore these points because they are exactly the goals
Chairman Smith of the other body and I set out to achieve when we first
introduced patent reform legislation 6 years ago. It has been over half
a century since our patent laws were updated.
Look at the changes that have occurred during that time. We have
become even more of a global economy than ever before. We have become
more of an innovative economy than ever before. Improving patent
quality will benefit businesses across the economic spectrum. The
America Invents Act will improve patent quality by expanding the role
of third parties to the patent examination process, creating a
streamlined first-window, postgrant review to quickly challenge and
weed out patents that never should have been issued in the first place.
It improves the funding mechanism for the Patent Office to confront
its backlog of nearly 700,000 patent applications. Those are patents
that could be creating jobs and improving our economy. For years, low-
quality patents have been a drain on our patent system, and in turn our
economy, by undermining the value of what it means to hold a patent.
Higher quality patents will bring greater certainty in the patent
system. That is going to make it easier to get investment in American
businesses, create jobs, and grow our economy. This act is bipartisan
legislation. It is going to lead to long-needed improvements in our
patent system and laws. I would note that no one Senator, no industry,
no interest group, got everything it wanted in this bill. I suggested
that if we were going to write this bill exactly the way we wanted in
this body, we would have 100 separate bills. But we can only pass one.
That is the nature of compromise.
This bill represents a significant step forward in preparing the
Patent Office and, in turn businesses, to deal with the challenges of
the 21st century. Support for the bill has grown over time. It is now
endorsed by an extensive list of supporters across the political
spectrum. Look at who we have here. How often do you see this kind of a
breakdown?
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The National Association of Manufacturers, the United Steelworkers,
the U.S. Chamber of Commerce, the Association of American Universities,
the American Intellectual Property Law Association, Coalition for the
21st Century Patent Reform, Small Business and Entrepreneurship
Council, the National Retail Federation, the Financial Services
Roundtable, the American Bar Association, the United Inventors
Association of America, the Association of Competitive Technology, the
Association of University Technology Managers, the Information
Technology Council, American Institute of Certified Public Accountants,
and so many more.
I cannot remember a time in my years in the Senate where we have seen
such a broad coalition come together: business, labor, high-tech, and
others, coming together to pass legislation. We should grant this
legislation final approval.
The Senate and the House have now both considered it. A host of
associations, interested parties from the private sector have endorsed
passing the bill without further amendment. At a time when we can do
something to create jobs and not cost the taxpayers money, every day we
wait, every day we delay is another day before those jobs are created.
Every day we wait, every day we delay is another day that we hold back
the innovative genius of America. Every day we wait, every day we delay
is another day we are unable to compete with the rest of the world on a
level playing field.
Any amendment--any amendment, including ones I might like--would
force reconsideration by the House, and more unnecessary delay, and
longer before we can create those jobs, longer before we can innovate,
longer before we can compete with the rest of the world. I can think of
a half dozen amendments that I would like to have in the bill.
I will vote against them because it is time to get this done. Patent
reform legislation has been debated exhaustively in both the Senate and
the House for the past four Congresses. It is the product of dozens of
hearings and weeks of committee markups. We should proceed to the bill
and pass it.
Let's not have any one person feeling they have the magic point
everybody else has somehow overlooked. That is not the way the
legislative process works. There are 100 here in the Senate and 435 in
the House. Nobody gets every single thing they want. But here, the vast
majority of Republicans and Democrats in the House and the Senate are
getting what they feel is best for America.
It is time for the Senate to serve the interests of the American
people by passing the legislation before us. We have before us a
consensus bill that will facilitate invention, innovation, and job
creation today. This can help everybody from startups and small
businesses to our largest cutting-edge corporations.
Let's put Americans back to work. Let's show the American people that
the Congress can actually accomplish something and do it for America.
Here is something on which both Republicans and Democrats can come
together. Let's not delay any longer. We have taken 6 years to get
here. We had a vote yesterday where over 90 Senators voted to proceed,
which indicates it is time to get moving, it is time to stop debating,
and it is time to vote.
Madam President, I yield the floor and suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CARPER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Economy
Mr. CARPER. Madam President, it is quiet in here. Tomorrow night,
down at the other end of the Capitol, hopefully it won't be this quiet.
The President is going to give a speech that is to be focused on the
next steps of getting our economy moving and getting people back to
work. That is something which is on all of our minds.
As a guy who used to make my living as Governor of my State, I
focused a lot on the economy. These are issues of great interest to me
and certainly to the people I represent. The thought that occurs to me
as we anticipate the President's speech is that I don't know that there
is any one particular jobs bill that will do the trick. I would like to
think there is a silver bullet, but I don't know that there is.
I have always focused on and what we try to focus on in our State is
how to create a nurturing environment for job creation and job
preservation. How do we do that? We try to make sure we invest wisely
in infrastructure--roads, highways, bridges, ports, trains, water,
sewer, broadband. We try to invest in the workforce and make sure we
have people who are coming out of our schools who can read, write, do
math, and who have the skills that will enable them to fill the kinds
of jobs that will exist in the 21st century. The other part of what we
focus on is trying to help promote research and development, and not
just any kind but R&D that can be used to create products that can be
commercialized and sold not only in this country but in other places as
well.
Hopefully, the President will talk about some of those things
tomorrow night. I look forward to whatever he talks about. I hope he
talks about that kind of nurturing environment and what we can do to
allow them to plow the fields so that companies, large and small, can
actually grow some jobs here.
Part of the nurturing environment for job creation is infrastructure.
We have been trying for many months since the beginning of this year to
work on the airport infrastructure in our country, to try to bring the
FAA and air traffic control system into the 21st century because it is
not and it needs to be. We need resources to modernize our airports
across the country, and it is important that we actually pay for it and
not add to the deficit.
Legislation was passed earlier this year that does that--modernizes
the FAA and brings the air traffic control system into the 21st
century, provides some agreement between the airlines and the general
aviation community on how to come up with the resources we need to
modernize our airports. It is a good approach, but it has been hung up
in the House since then. We need to get that done.
Today and this week, another part of that infrastructure needs to be
worked on. This is the infrastructure that allows companies that have a
good idea--and inventors--to get a patent on their idea and the patent
doesn't end up being litigated on and on, maybe for years, in the
courts. Too often, it takes years when somebody comes up with a good
idea. They submit it to the Patent Office, and it takes a long time to
get to the top of the list and for somebody to pay attention to the
application. Somebody may come in and say: I had the same idea before
he did, and then it ends up in litigation. We need to stop that. We
worked out a compromise that provides that whoever files first is
essentially the winner. It is not necessarily the one who came up with
the idea sooner. We need to get that legislation done and deal with
that one aspect of uncertainty and unpredictability that businesses
face. It would be great if we could make progress on that front this
week.
Another part of the infrastructure for job creation and preservation
is the Postal Service. Not a lot of people pay much attention to the
Postal Service until they get into trouble. The Postal Service is in
trouble. I describe the situation as dire, but it is not hopeless. The
Postal Service finds itself in a situation not unlike that of the auto
industry a couple of years ago. The auto industry was losing market
share, and their products weren't especially good. They were losing
market share, and they essentially concluded that we have more people
than we need for the size of the market to which we now sell. We need
to reduce our head count. They said: We have to make our wage-benefit
structure more competitive for the people we are hiring in the future
in order to be competitive. Third, they said: We have too many plants,
and the wage-benefit structure was out of whack.
In the Postal Service today, we are seeing an enormous diversion of
people using traditional mail, first-class mail, and a diversion into
electronic media. As a naval flight officer in the Vietnam war, I
remember how excited I was--and we have been joined by Senator McCain,
who went for a long time
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without getting much mail at all when he was a POW. Those of us who
were more fortunate, while deployed it was exciting to get mail--
postcards, letters, cards, packages, magazines, newspapers. It was some
connection from home.
Senator Klobuchar has been over to Afghanistan, as have Senator
McCain and I. Our soldiers, sailors, airmen, and marines Skype. They
communicate through different social media such as Facebook, Twitter,
Internet, and cell phones. We never had that stuff, even 30, 35 years
ago, in Southeast Asia or around the world. But people don't use the
mail too much, especially first-class mail.
The situation the Postal Service is in today--and they lost last
year--is they are on track to lose about $10 billion. They can only
borrow $15 billion on a line of credit with the Federal Government.
That is it. They are looking to lose more money. If we don't let them
do something, they are going to lose more next year. At the end of this
year--they can default by the end of the month if we do nothing. If
they don't do something, by the end of next September, they could be
out of business. That is not good for them, for us, or for the 7 or 8
million jobs that depend on the Postal Service.
The situation with the Postal Service is similar to that of the auto
industry a couple of years ago, but it is different too. The U.S. auto
industry--not Ford but Chrysler and GM--was looking for, if you will, a
taxpayer bailout. They got that and have repaid most of that to the
Treasury.
The Postal Service is not asking for a bailout. They want to be
allowed to be treated like a real business, run like a real business.
They say, like the auto industry, we have too many people--more than
they need. They need to continue to reduce the headcount through
attrition and to incentivize the 120,000-or-so people who are eligible
to retire, to retire by giving them early payments--maybe $10,000 or
$20,000--and allowing them to maybe get credit for a couple extra
years, but get the people who are eligible to retire and encourage them
to do so, incentivize them to retire--not to be fired or laid off but
to retire. So there are too many people.
Two, there are too many post offices. There are 33,000 post offices
around the country. The post office doesn't want to close them all.
They are saying: Let's look at 3,000 of them, and let's have a
conversation with the communities there. Do all of these 3,000 post
offices in those communities need to stay open? Are there some that
could locate services elsewhere? Say, if you go to a convenience store
that is open 24/7 or a pharmacy that is open maybe 7 days a week or if
you go into a supermarket that is open 7 days a week, you can get your
postal services there. They could locate those post offices there, and
all those services in one place adds more convenience to consumers.
That is what the Postal Service wants to do.
The last thing the Postal Service has too much of is mail processing
centers. They have over 500 of them around the country, which is
probably twice the number they need. They need to be able to reduce
those.
The Postal Service needs to be treated fairly, and they have been
paying into the Civil Service Retirement System for many years for some
of the older employees and more recently the Federal Employees
Retirement System for the newer employees. Two separate audits done by
the Segal Company and by a consulting company called the Hay Group have
concluded that the Postal Service has overpaid its obligation into the
Civil Service Retirement System by $50 billion or more. They have
estimated they have overpaid their obligation to the Federal Employees
Retirement System by about $7 billion more. The Postal Service has
asked to be reimbursed for those overpayments. They would like to use
those overpayments, on the one hand, to help meet their obligation to
pay the heavy health care cost for folks who are retiring from the
Postal Service or about to retire. They want to prefund that. It is an
obligation they have under the 2006 law, and they would like to use
some of the $7 billion overpayment into the Federal Employees
Retirement System to actually incent people who are eligible to retire
from the Postal Service to go ahead and retire.
Eighty percent of the cost of the Postal Service is people--80
percent. The Postal Service has reduced its head count from about
800,000 people to, say, 600,000 people over the last 7 or 8 years. They
need to be able to continue to reduce that in the years to come--
roughly 100,000 over the next 2 or 3 years through attrition and maybe
another 120,000 by incentivizing people to retire.
The Senator from Minnesota is still standing here waiting for me to
stop, and I have a lot more I wish to say, but I am going to stop and
come back maybe later today to finish my comments, but let me conclude
with this.
We need to act so the Postal Service can save itself. We don't need
to bail them out. We need to let them act as a real company. The
situation is dire, but it is not hopeless. They need to be able to
address, as the auto industry did, too many people. They need to be
able to close and consolidate some post offices and colocate those
services in places that make more sense and are more convenient to
consumers, they need to be able to close some of their mail processing
centers, and they need to be treated fairly with respect to their
overpayments into both the Civil Service Retirement System and the
Federal Employees Retirement System. We can do this, and we don't need
to do it next year; we need to do it this year.
I yield the floor to our friend from Minnesota.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
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