[Congressional Record Volume 157, Number 131 (Wednesday, September 7, 2011)]
[Senate]
[Pages S5390-S5392]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 594. Mr. JOHNSON of Wisconsin (for himself and Mr. Johanns) 
submitted an amendment intended to be proposed by him to the bill H.R. 
1249, to amend title 35, United States Code, to provide for patent 
reform; which was ordered to lie on the table; as follows:

       At the appropriate place insert the following:

     SEC. ___. REGULATION MORATORIUM AND JOBS PRESERVATION ACT OF 
                   2011.

       (a) Short Title.--This section may be cited as the 
     ``Regulation Moratorium and Jobs Preservation Act of 2011''.
       (b) Definitions.--In this section--
       (1) the term ``agency'' has the meaning given under section 
     3502(1) of title 44, United States Code;
       (2) the term ``regulatory action'' means any substantive 
     action by an agency that promulgates or is expected to lead 
     to the promulgation of a final regulation, including notices 
     of inquiry, advance notices of proposed rulemaking, and 
     notices of proposed rulemaking;
       (3) the term ``significant regulatory action'' means any 
     regulatory action that is likely to result in a rule or 
     guidance that may--
       (A) have an annual effect on the economy of $100,000,000 or 
     more or adversely affect in a material way the economy, a 
     sector of the economy, productivity, competition, jobs, the 
     environment, public health or safety, small entities, or 
     State, local, or tribal governments or communities;
       (B) create a serious inconsistency or otherwise interfere 
     with an action taken or planned by another agency;
       (C) materially alter the budgetary impact of entitlements, 
     grants, user fees, or loan programs or the rights and 
     obligations of recipients thereof; or
       (D) raise novel legal or policy issues; and
       (4) the term ``small entities'' has the meaning given under 
     section 601(6) of title 5, United States Code.
       (c) Significant Regulatory Actions.--
       (1) In general.--No agency may take any significant 
     regulatory action, until the Bureau of Labor Statistics 
     average of monthly unemployment rates for any quarter 
     beginning after the date of enactment of this Act is equal to 
     or less than 7.7 percent.
       (2) Determination.--The Secretary of Labor shall submit a 
     report to the Director of the Office of Management and Budget 
     whenever the Secretary determines that the Bureau of Labor 
     Statistics average of monthly unemployment rates for any 
     quarter beginning after the date of enactment of this Act is 
     equal to or less than 7.7 percent.
       (d) Waivers.--
       (1) National security or national emergency.--The President 
     may waive the application of subsection (c) to any 
     significant regulatory action, if the President--
       (A) determines that the waiver is necessary on the basis of 
     national security or a national emergency; and
       (B) submits notification to Congress of that waiver and the 
     reasons for that waiver.
       (2) Additional waivers.--
       (A) Submission.--The President may submit a request to 
     Congress for a waiver of the application of subsection (c) to 
     any significant regulatory action.
       (B) Contents.--A submission under this paragraph shall 
     include--
       (i) an identification of the significant regulatory action; 
     and
       (ii) the reasons which necessitate a waiver for that 
     significant regulatory action.
       (C) Congressional action.--Congress shall give expeditious 
     consideration and take appropriate legislative action with 
     respect to any waiver request submitted under this paragraph.
       (e) Judicial Review.--
       (1) Definition.--In this subsection, the term ``small 
     business'' means any business, including an unincorporated 
     business or a sole proprietorship, that employs not more than 
     500 employees or that has a net worth of less than $7,000,000 
     on the date a civil action arising under this section is 
     filed.
       (2) Review.--Any person that is adversely affected or 
     aggrieved by any significant regulatory action in violation 
     of this section is entitled to judicial review in accordance 
     with chapter 7 of title 5, United States Code.
       (3) Jurisdiction.--Each court having jurisdiction to review 
     any significant regulatory action for compliance with any 
     other provision of law shall have jurisdiction to review all 
     claims under this section.
       (4) Relief.--In granting any relief in any civil action 
     under this subsection, the court shall order the agency to 
     take corrective action consistent with this section and 
     chapter 7 of title 5, United States Code, including remanding 
     the significant regulatory action to the agency and enjoining 
     the application or enforcement of that significant regulatory 
     action, unless the court finds by a preponderance of the 
     evidence that application or enforcement is required to 
     protect against an imminent and serious threat to the 
     national security from persons or states engaged in hostile 
     or military activities against the United States.
       (5) Reasonable attorney fees for small businesses.--The 
     court shall award reasonable attorney fees and costs to a 
     substantially prevailing small business in any civil action 
     arising under this section. A party qualifies as 
     substantially prevailing even without obtaining a final 
     judgment in its favor if the agency changes its position as a 
     result of the civil action.
       (6) Limitation on commencing civil action.--A person may 
     seek and obtain judicial review during the 1-year period 
     beginning on the date of the challenged agency action or 
     within 90 days after an enforcement action or notice thereof, 
     except that where another provision of law requires that a 
     civil action be commenced before the expiration of that 1-
     year period, such lesser period shall apply.
                                 ______
                                 
  SA 595. Ms. CANTWELL submitted an amendment intended to be proposed 
by her to the bill H.R. 1249, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       On page 119, strike line 21 and all that follows through 
     page 125, line 11, and insert the following:

     SEC. 18. TRANSITIONAL PROGRAM FOR COVERED BUSINESS-METHOD 
                   PATENTS.

       (a) References.--Except as otherwise expressly provided, 
     wherever in this section language is expressed in terms of a 
     section or chapter, the reference shall be considered to be 
     made to that section or chapter in title 35, United States 
     Code.
       (b) Transitional Program.--
       (1) Establishment.--Not later than 1 year after the date of 
     enactment of this Act, the Director shall issue regulations 
     establishing and implementing a transitional post-grant 
     review proceeding for review of the validity of covered 
     business-method patents. The transitional proceeding 
     implemented pursuant to this subsection shall be regarded as, 
     and shall employ the standards and procedures of, a post-
     grant review under chapter 32, subject to the following 
     exceptions and qualifications:
       (A) Section 321(c) and subsections (e)(2), (f), and (g) of 
     section 325 shall not apply to a transitional proceeding.
       (B) A person may not file a petition for a transitional 
     proceeding with respect to a covered business-method patent 
     unless the person or his real party in interest has been sued 
     for infringement of the patent or has been charged with 
     infringement under that patent.
       (C) A petitioner in a transitional proceeding who 
     challenges the validity of 1 or more claims in a covered 
     business-method patent on a ground raised under section 102 
     or 103 as in effect on the day prior to the date of enactment 
     of this Act may support such ground only on the basis of--
       (i) prior art that is described by section 102(a) (as in 
     effect on the day prior to the date of enactment of this 
     Act); or
       (ii) prior art that--

       (I) discloses the invention more than 1 year prior to the 
     date of the application for patent in the United States; and
       (II) would be described by section 102(a) (as in effect on 
     the day prior to the date of enactment of this Act) if the 
     disclosure had been made by another before the invention 
     thereof by the applicant for patent.

       (D) The petitioner in a transitional proceeding, or his 
     real party in interest, may not assert either in a civil 
     action arising in whole or in part under section 1338 of 
     title 28, United States Code, or in a proceeding before the 
     International Trade Commission that a claim in a patent is 
     invalid on any ground

[[Page S5391]]

     that the petitioner raised during a transitional proceeding 
     that resulted in a final written decision.
       (E) The Director may institute a transitional proceeding 
     only for a patent that is a covered business-method patent.
       (2) Effective date.--The regulations issued pursuant to 
     paragraph (1) shall take effect on the date that is 1 year 
     after the date of enactment of this Act and shall apply to 
     all covered business-method patents issued before, on, or 
     after such date of enactment, except that the regulations 
     shall not apply to a patent described in section 6(f)(2)(A) 
     of this Act during the period that a petition for post-grant 
     review of that patent would satisfy the requirements of 
     section 321(c).
       (3) Sunset.--
       (A) In general.--This subsection, and the regulations 
     issued pursuant to this subsection, are repealed effective on 
     the date that is 4 years after the date that the regulations 
     issued pursuant to paragraph (1) take effect.
       (B) Applicability.--Notwithstanding subparagraph (A), this 
     subsection and the regulations implemented pursuant to this 
     subsection shall continue to apply to any petition for a 
     transitional proceeding that is filed prior to the date that 
     this subsection is repealed pursuant to subparagraph (A).
       (c) Request for Stay.--
       (1) In general.--If a party seeks a stay of a civil action 
     alleging infringement of a patent under section 281 in 
     relation to a transitional proceeding for that patent, the 
     court shall decide whether to enter a stay based on--
       (A) whether a stay, or the denial thereof, will simplify 
     the issues in question and streamline the trial;
       (B) whether discovery is complete and whether a trial date 
     has been set;
       (C) whether a stay, or the denial thereof, would unduly 
     prejudice the nonmoving party or present a clear tactical 
     advantage for the moving party; and
       (D) whether a stay, or the denial thereof, will reduce the 
     burden of litigation on the parties and on the court.
       (2) Review.--A party may take an immediate interlocutory 
     appeal from a district court's decision under paragraph (1). 
     The United States Court of Appeals for the Federal Circuit 
     shall review the district court's decision to ensure 
     consistent application of established precedent, and such 
     review may be de novo.
       (d) Definition.--For purposes of this section, the term 
     ``covered business method patent'' means a patent that claims 
     a method or corresponding apparatus for performing data 
     processing operations utilized in the practice, 
     administration, or management of a financial product or 
     service, except that the term shall not include patents for 
     technological inventions. Solely for the purpose of 
     implementing the transitional proceeding authorized by this 
     subsection, the Director shall prescribe regulations for 
     determining whether a patent is for a technological 
     invention.
       (e) Rule of Construction.--Nothing in this section shall be 
     construed as amending or interpreting categories of patent-
     eligible subject matter set forth under section 101.
                                 ______
                                 
  SA 596. Ms. CANTWELL submitted an amendment intended to be proposed 
by her to the bill H.R. 1249, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       On page 124, line 19, strike all through page 125, line 7, 
     and insert the following:
       (d) Definition.--
       (1) In general.--For purposes of this section, the term 
     ``covered business method patent''--
       (A) means a patent that claims a method or corresponding 
     apparatus for performing data processing operations utilized 
     in the practice, administration, or management of a financial 
     product or service;
       (B) shall include only patents claiming abstract business 
     concepts; and
       (C) shall not include patents for technological inventions 
     or inventions relating predominantly to nonfinancial goods or 
     services.
       (2) Regulations.--To assist in implementing the 
     transitional proceeding authorized by this subsection, the 
     Director shall issue regulations for determining whether a 
     patent is for a technological invention or inventions 
     relating predominantly to nonfinancial good or services.
                                 ______
                                 
  SA 597. Ms. CANTWELL submitted an amendment intended to be proposed 
by her to the bill H.R. 1249, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       On page 119, strike line 21 and all that follows through 
     page 125, line 11.
                                 ______
                                 
  SA 598. Mr. PAUL submitted an amendment intended to be proposed by 
him to the bill H.R. 1249, to amend title 35, United States Code, to 
provide for patent reform; which was ordered to lie on the table; as 
follows:

       At the appropriate place, insert the following:

     SEC. ___. SENSE OF CONGRESS.

       It is the sense of Congress that Secretary of the Treasury 
     Timothy Geithner no longer holds the confidence of Congress 
     or of the people of the United States.
                                 ______
                                 
  SA 599. Mr. COBURN (for himself, Mr. DeMint, Mrs. Feinstein, Mrs. 
Boxer, Mr. Udall of Colorado, Mr. Enzi, and Mr. Burr) submitted an 
amendment intended to be proposed by him to the bill H.R. 1249, to 
amend title 35, United States Code, to provide for patent reform; which 
was ordered to lie on the table; as follows:

       On page 137, line 1, strike all through page 138, line 9, 
     and insert the following:

     SEC. 22. PATENT AND TRADEMARK OFFICE FUNDING.

       (a) Definitions.--In this section, the following 
     definitions shall apply:
       (1) Director.--The term ``Director'' means the Director of 
     the United States Patent and Trademark Office.
       (2) Fund.--The term ``Fund'' means the public enterprise 
     revolving fund established under subsection (c).
       (3) Office.--The term ``Office'' means the United States 
     Patent and Trademark Office.
       (4) Trademark act of 1946.--The term ``Trademark Act of 
     1946'' means an Act entitled ``Act to provide for the 
     registration and protection of trademarks used in commerce, 
     to carry out the provisions of certain international 
     conventions, and for other purposes'', approved July 5, 1946 
     (15 U.S.C. 1051 et seq.) (commonly referred to as the 
     ``Trademark Act of 1946'' or the ``Lanham Act'').
       (5) Under secretary.--The term ``Under Secretary'' means 
     the Under Secretary of Commerce for Intellectual Property.
       (b) Funding.--
       (1) In general.--Section 42 of title 35, United States 
     Code, is amended--
       (A) in subsection (b), by striking ``Patent and Trademark 
     Office Appropriation Account'' and inserting ``United States 
     Patent and Trademark Office Public Enterprise Fund''; and
       (B) in subsection (c), in the first sentence--
       (i) by striking ``To the extent'' and all that follows 
     through ``fees'' and inserting ``Fees''; and
       (ii) by striking ``shall be collected by and shall be 
     available to the Director'' and inserting ``shall be 
     collected by the Director and shall be available until 
     expended''.
       (2) Effective date.--The amendments made by paragraph (1) 
     shall take effect on the later of--
       (A) October 1, 2011; or
       (B) the first day of the first fiscal year that begins 
     after the date of the enactment of this Act.
       (c) USPTO Revolving Fund.--
       (1) Establishment.--There is established in the Treasury of 
     the United States a revolving fund to be known as the 
     ``United States Patent and Trademark Office Public Enterprise 
     Fund''. Any amounts in the Fund shall be available for use by 
     the Director without fiscal year limitation.
       (2) Derivation of resources.--There shall be deposited into 
     the Fund on or after the effective date of subsection 
     (b)(1)--
       (A) any fees collected under sections 41, 42, and 376 of 
     title 35, United States Code, provided that notwithstanding 
     any other provision of law, if such fees are collected by, 
     and payable to, the Director, the Director shall transfer 
     such amounts to the Fund, provided, however, that no funds 
     collected pursuant to section 9(h) of this Act or section 
     1(a)(2) of Public Law 111-45 shall be deposited in the Fund; 
     and
       (B) any fees collected under section 31 of the Trademark 
     Act of 1946 (15 U.S.C. 1113).
       (3) Expenses.--Amounts deposited into the Fund under 
     paragraph (2) shall be available, without fiscal year 
     limitation, to cover--
       (A) all expenses to the extent consistent with the 
     limitation on the use of fees set forth in section 42(c) of 
     title 35, United States Code, including all administrative 
     and operating expenses, determined in the discretion of the 
     Under Secretary to be ordinary and reasonable, incurred by 
     the Under Secretary and the Director for the continued 
     operation of all services, programs, activities, and duties 
     of the Office relating to patents and trademarks, as such 
     services, programs, activities, and duties are described 
     under--
       (i) title 35, United States Code; and
       (ii) the Trademark Act of 1946; and
       (B) all expenses incurred pursuant to any obligation, 
     representation, or other commitment of the Office.
       (d) Annual Report.--Not later than 60 days after the end of 
     each fiscal year, the Under Secretary and the Director shall 
     submit a report to Congress which shall--
       (1) summarize the operations of the Office for the 
     preceding fiscal year, including financial details and staff 
     levels broken down by each major activity of the Office;
       (2) detail the operating plan of the Office, including 
     specific expense and staff needs for the upcoming fiscal 
     year;
       (3) describe the long term modernization plans of the 
     Office;
       (4) set forth details of any progress towards such 
     modernization plans made in the previous fiscal year; and
       (5) include the results of the most recent audit carried 
     out under subsection (f).
       (e) Annual Spending Plan.--
       (1) In general.--Not later than 30 days after the beginning 
     of each fiscal year, the Director shall notify the Committees 
     on Appropriations of both Houses of Congress of the plan for 
     the obligation and expenditure of the total amount of the 
     funds for that fiscal year in accordance with section 605 of 
     the

[[Page S5392]]

     Science, State, Justice, Commerce, and Related Agencies 
     Appropriations Act, 2006 (Public Law 109-108; 119 Stat. 
     2334).
       (2) Contents.--Each plan under paragraph (1) shall--
       (A) summarize the operations of the Office for the current 
     fiscal year, including financial details and staff levels 
     with respect to major activities; and
       (B) detail the operating plan of the Office, including 
     specific expense and staff needs, for the current fiscal 
     year.
       (f) Audit.--The Under Secretary shall, on an annual basis, 
     provide for an independent audit of the financial statements 
     of the Office. Such audit shall be conducted in accordance 
     with generally acceptable accounting procedures.
       (g) Budget.--The Fund shall prepare and submit each year to 
     the President a business-type budget in a manner, and before 
     a date, as the President prescribes by regulation for the 
     budget program.
       (h) Surcharge.--Notwithstanding section 11(i)(1)(B), 
     amounts collected pursuant to the surcharge imposed under 
     section 11(i)(1)(A) shall be credited to the United States 
     Patent and Trademark Office Public Enterprise Fund.
                                 ______
                                 
  SA 600. Mr. SESSIONS (for himself, Mr. Manchin, Mr. Coburn, and Mr. 
Lee) submitted an amendment intended to be proposed by him to the bill 
H.R. 1249, to amend title 35, United States Code, to provide for patent 
reform; which was ordered to lie on the table; as follows:

       On page 149, line 20, strike all through page 150, line 16.

                          ____________________