[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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