[Congressional Record Volume 157, Number 131 (Wednesday, September 7, 2011)]
[Senate]
[Pages S5356-S5357]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMERICA INVENTS ACT

  Ms. KLOBUCHAR. I thank very much the Senator from Delaware, and I 
appreciate the ability to go ahead. I know the Senator from Arizona is 
waiting as well.
  I rise to speak in support of the America Invents Act, a bill to 
revamp our patent system. As a member of the Judiciary Committee, I 
worked on this bill. I was one of the cosponsors, and I also helped 
manage the bill the last time it was on the floor. I am here to make 
sure we get it over the finish line.
  It is without dispute that intellectual property is one of our 
Nation's most valuable assets, and our patent system plays a vital role 
in maintaining the value of our intellectual property. In fact, the 
Commerce Department estimates that up to 75 percent of economic growth 
in our Nation since World War II is due to technological innovation--
innovation that was made possible, in part, by our patent system.
  I see firsthand the importance of success of a robust patent system 
whenever I am visiting Minnesota companies and talking with business 
leaders in our State, as I did many times over the past month. 
Minnesotans have brought the world everything from the pacemaker to the 
Post-It-Note. These innovations would not have been possible without 
the protection of the patent system. This strong commitment to 
innovation and development is why our State ranks sixth in the Nation 
in patents per capita, and we are No. 1 per capita for Fortune 500 
companies.
  Companies such as 3M, Ecolab, and Medtronic need an efficient patent 
system. But it is also medium-sized companies, such as Imation in 
Oakdale and Polaris in Medina, that rely on patents to grow their 
companies and create jobs in America. In fact, from 1980 to 2001, all 
the net job growth in our country came from companies that were less 
than 5 years old. It is the person in the garage building a mousetrap 
or, in the case of Medtronic, the first battery-powered pacemaker who 
drives our economy forward and creates the products Americans can make 
and sell to the world.
  I truly believe, to get out of this economic rut, we need to be a 
country that makes stuff again, that invents, that exports to the 
world. That is why it is so critical we pass the America Invents Act.
  Unfortunately, our patent laws haven't had a major update since 1952. 
The system is outdated, and it is quickly becoming a burden on our 
innovators and entrepreneurs. Because of these outdated laws, the 
Patent and Trademark Office faces a backlog of over 700,000 patent 
applications. Many would argue that all too often the office issues 
low-quality patents. One of these 700,000 patents may be the next

[[Page S5357]]

implantable pacemaker or a new and improved hearing aid.
  Our current patent system also seems stacked against small 
entrepreneurs. I have spoken to small business owners and entrepreneurs 
across Minnesota who are concerned with the high cost and uncertainty 
of protecting their inventions. For example, under the current system, 
when two patents are filed around the same time for the same invention, 
the applicants must go through an arduous and expensive process called 
an interference, to determine which applicant will be awarded the 
patent. Small inventors rarely, if ever, win interference proceedings 
because the rules for interferences are often stacked in favor of 
companies with deep pockets. This needs to change.
  Our current patent system also ignores the realities of the 
information age we live in. In 1952, the world wasn't as interconnected 
as it is today. There was no Internet and people didn't share 
information, as they do in this modern age. In 1952, most publicly 
available information about technology could be found either in patents 
or scientific publications. So patent examiners only had to look to a 
few sources to determine if the technology described in the patent 
application was both novel and nonobvious. Today, there is a vast 
amount of information readily available everywhere we look. It is 
unrealistic to believe a patent examiner would know all the places to 
look for this information. Even if the examiner knew where to look, it 
is unlikely he or she would have the time to search in all these nooks 
and crannies. The people who know where to look are the other 
scientists and innovators who also work in the field. But current law 
does not allow participation by third parties in the patent application 
process, despite the fact that third parties are often in the best 
position to challenge a patent application. Without the benefit of this 
outside expertise, an examiner might grant a patent for technology that 
simply isn't a true invention, and those low-quality patents clog the 
system and hinder true innovation.
  Our Nation can't afford to slow innovation any more. While China is 
investing billions of dollars in its medical technology sector, we are 
still bickering about the regulations. While India encourages invention 
and entrepreneurship, we are still giving our innovators the 
runaround--playing red light, green light, with stop-and-go tax 
incentives. The truth is, America can no longer afford to be a country 
that simply exists on churning money and shuffling paper, a country 
that consumes imports and spends its way to huge trade deficits. What 
we need to be is that Nation that invents again, that thinks again, and 
that exports to the world, a country where we can walk into any store 
and pick up a product and turn it over and it says ``Made in the USA.'' 
That is what our country needs to be. It is what Tom Friedman, who 
writes for the New York Times and is a Minnesota native, calls nation 
building in our own nation.
  As innovators and entrepreneurs across Minnesota have told me, we 
need to rejuvenate our laws to ensure that our patent system supports 
the needs of a 21st century economy. The America Invents Act does just 
that.
  First, the America Invents Act increases the speed and certainty of a 
patent application process by transitioning our patent system from a 
first-to-invent system to a first-inventor-to-file system. This change 
to a first-inventor-to-file system will increase predictability by 
creating brighter lines to guide patent applicants and Patent Office 
examiners.
  By simply using the filing date of an application to determine the 
true inventors, the bill increases the speed of the patent application 
process while also rewarding novel, cutting-edge inventions. To help 
guide investors and inventors, this bill allows them to search the 
public record to discover with more certainty whether their idea is 
patentable, helping eliminate duplication and streamlining the system. 
At the same time, the bill still provides a safe harbor of 1 year for 
inventors to go out and market their inventions before having to file 
for their patent.
  This grace period is one of the reasons our Nation's top research 
universities, such as the University of Minnesota, support the bill. 
The grace period protects professors who discuss their inventions with 
colleagues or publish them in journals before filing their patent 
application. The grace period, along with prior user rights, will 
encourage cross-pollination of ideas and eliminate concerns about 
discussing inventions with others before a patent application is filed.
  This legislation also helps to ensure that only true inventions 
receive protection under our laws. By allowing third parties to provide 
information to the patent examiner, the America Invents Act helps 
bridge the information gap between the patent application and existing 
knowledge.
  The legislation also provides a modernized, streamlined mechanism for 
third parties who want to challenge recently issued, low-quality 
patents that should never have been issued in the first place. 
Eliminating these potential trivial patents will help the entire patent 
system by improving certainty.
  The legislation will also improve the patent system by granting the 
U.S. Patent and Trademark Office the authority to set and adjust its 
own fees. Allowing the office to set their own fees will give them the 
resources to reduce the current backlog and devote greater resources to 
each patent that is reviewed to ensure higher quality. The fee-setting 
authority is why IBM--one of the most innovative companies around, that 
has facilities in Rochester, MN, and in the Twin Cities--was granted a 
record 5,896 patents in 2010 and why they support this bill. They want 
to bring even more inventions and more jobs to America.
  As chair of the Subcommittee on Competitiveness, Innovation, and 
Export Promotion, I have been focused on ways to promote innovation and 
growth in the 21st century. Stakeholders from across the spectrum agree 
this bill is a necessary step to ensure the United States remains the 
world leader in developing innovative products that bring prosperity 
and happiness to our citizens. Globalization and technology have 
changed our economy. This legislation will ensure that our patent 
system rewards the innovation of the 21st century.
  I know this is not the exact bill we passed in the Senate earlier 
this year, but the major components of that earlier bill are in the one 
on the floor today. Those components are vital to bringing our patent 
system into the 21st century and unleashing American ingenuity as never 
before. Sometimes it is obvious how one can get a job, but sometimes it 
is harder to see, such as when one has to get an invention developed 
and get it approved and get the patent on it and get it to market. That 
is the hard work that goes on in this bill.
  I urge my colleagues to support this bill, and I yield the floor to 
my colleague and friend from Arizona, Senator McCain.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Madam President, I ask unanimous consent to address the 
Senate as in morning business, and I additionally ask unanimous consent 
that I be joined in a colloquy with Senator Graham from South Carolina 
and Senator Lieberman from Connecticut.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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