[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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