[Congressional Record Volume 159, Number 162 (Thursday, November 14, 2013)]
[House]
[Pages H7103-H7106]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               PATENT LAW

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2013, the Chair recognizes the gentleman from California 
(Mr. Rohrabacher) for 30 minutes.
  Mr. ROHRABACHER. Mr. Speaker, I first would like to associate myself 
with the remarks of my colleagues that I have just heard. The struggle 
for freedom is a continuing struggle that started back with our 
Founding Fathers and will not end with us. Every generation has to pick 
up the torch or the light of liberty and justice will be extinguished 
and it will never be returned. Reagan always told us, it just takes one 
generation not to do their job, and we will have lost our freedom 
forever.
  Tonight I would like to talk about a very significant part of our 
freedom and liberty, and it deals specifically with patents and 
intellectual property rights. I know sometimes over the years when they 
hear somebody is going to talk about patent law, there is a big yawn, 
but this has been a significant part of the success of the United 
States.
  Our Founding Fathers believed that with technology and freedom and, 
yes, with profit motive, that this was the formula that would uplift 
humankind and that would make America a great country in which all of 
our people benefited from this greatness and the prosperity we would 
have here. They believed it so strongly that they wrote into our 
Constitution a guarantee of the ownership rights of inventors and 
authors. It is the only place in the body of the Constitution where the 
word ``right'' is used. The rest of the rights that we have just been 
talking about were part of the Bill of Rights.

[[Page H7104]]

But in the Constitution itself, article 1, section 8, clause 8, it 
states:
  Congress shall have the power . . . to promote the Progress of 
Science and useful Arts, by securing for limited Times to Authors and 
Inventors the exclusive Right to their respective Writings and 
Discoveries.

                              {time}  1845

  This provision has served America well, leading to a general 
prosperity that has been the envy of the world. It has led to national 
security and it has led to, yes, average people living decent lives.
  It is an integral part of the individual freedom based on rights that 
were granted by God that are at the heart of American society. It is 
the reason we have emerged among all the nations of the world with our 
people living free and living well.
  It is not just something that is tangential. It is at the heart of 
our system. The right to own one's technology that they invent has 
catapulted our people, who started out to be very poor people on the 
east coast, into one of the world's greatest powers.
  This provision has served America well, leading to prosperity, 
national security, and, yes, this average life of our people that we 
can be proud of.
  Some people think it is just hard work that has caused this great 
success of our country. Yes, Americans work hard, but so do other 
people. Technology has made the difference. Technology multiplies the 
results of our work and the hard work of our people into prosperity. 
That is the secret of America's success. It is technology and freedom, 
and, yes, it was our strong patent system that made this difference.
  We have had a strong patent system since the founding of our country, 
as I just pointed out. Yet, today, multinational corporations, run by 
Americans, want to diminish the patent protection that our country has 
had traditionally. Over the years, we have fought--and I say we fought, 
meaning since I have been in Congress for 25 years, we have fought time 
and again and fought back--sometimes defeating, sometimes having to 
compromise--but these have been attempts to weaken our patent system, 
which is the basis of American prosperity.
  What has been happening over the years? For example, we have had a 
strong patent system in the United States, but a weak patent system in 
the rest of the world. That is why they are not prospering. Their 
patent systems were set up so that big guys could rob from the little 
guys. Our patent system was set up as a recognition that the ownership 
of one's discoveries and creations is a gift from God and can't be 
stolen by a power-grabbing big company.
  Overseas in Japan and Europe, that just isn't true. They have tried 
over these last 25 years to harmonize our law with the European law and 
the Japanese law. They call it ``harmonizing with the rest of the 
world.'' The trouble is they want our law to be weakened, rather than 
bringing up the other laws from around the world to our standards. For 
example, up until recently--there has been a little change in this; I 
managed to fight it back--they were trying to propose that we have a 
publishing law for a patent application that they have overseas. What 
do they have overseas? In Japan and in Europe, someone files for a 
patent, and if the patent hasn't been issued within 18 months, the 
patent is published.
  Our system in the United States has been the opposite. You file for a 
patent, and it has been against the law for anyone to even indicate 
what is in that patent application until the patent is issued. If it 
takes 1 year, 2 years, 10 years because it is such a complicated issue, 
however long it takes, traditionally our inventors knew that no one was 
going to get a hold of their patent information until the patent was 
granted.
  Again, in Europe, what they wanted to do and tried to do here in this 
body--but we fought them back--was have that same system. I called it 
the ``Steal American Technologies Act'' because after 18 months all of 
our secrets would have been published even before the patent was 
issued.
  Also, we have had a tradition in the United States that you do get a 
certain time of protection. That is what our Constitution says. 
Traditionally, it has been 17 years, but that 17 years starts from when 
you are issued the patent.
  In Europe, after 20 months, no matter if you got that patent or not, 
that clock starts ticking, and by the time you would end up with a 
patent, if it was a very complicated, high-tech patent, sometimes you 
have lost all but a year, maybe even all of your time in which to enjoy 
the rights and the rewards of having invented something. Under our 
system, once that clock starts--but it only starts after you have been 
issued your patent, and then you get 17 years of guaranteed time.
  These people in these major corporations were trying to change that. 
They were trying to emasculate the rights of American inventors, saying 
we need to harmonize with the rest of the world. Who would be doing 
such a thing, and why would they be doing it?
  The reason they were doing it is they want to steal from the American 
inventor the same way these big boys have been stealing from people in 
Europe and in Japan and inventors throughout the world. Well, let me 
once again note that for 25 years I have been finding myself fighting 
for the small inventors, struggling to defend the patent rights for 
these young, and maybe not young, maybe just people who are middle-aged 
and old, as well, but people who are not people who have means, but 
people who have ideas, people who are creative, people who come up with 
the breakthroughs that have changed our way of life.
  Philo Farnsworth has a statue here. He is a man in Utah who invented 
the picture tube. RCA didn't invent it. RCA tried to steal it from him. 
This is one man who fought this all the way to the Supreme Court, and 
the Supreme Court sided with this one lower-income individual who, I 
might add, had to enlist people to invest in his court case against RCA 
in order to fight that case to the Supreme Court. There is a statue in 
our Congress to Philo Farnsworth, the inventor. There is no statue to 
Mr. Sarnoff, who headed RCA and tried to steal that from him, knowing 
that he was stealing somebody else's invention so he wouldn't have to 
give credit to this hick from Utah.
  Supposedly there has always been some excuse that has been used by 
these corporations, these multinational--not just national 
corporations--people who have businesses all over the world. Some of 
them are headed by Americans; some of them not. Even Americans no 
longer think they have to watch out for the United States. They are 
watching out for the global interests of their company. They have to 
have some reason or excuse of why to take away or diminish the patent 
rights of our own people and to harmonize it with somebody else.
  In the past, they have used the excuse of the ``submarine patentor.'' 
This is just one of the derogatory terms they came up with in order to 
justify the fact that they were diminishing the property rights of our 
intellectual inventors and those people who are coming up with our new 
technology, and they come up with these derogatory terms, and it sounds 
good. These big companies have big PR firms in order to come up with a 
term that can then be used as sort of an excuse, a cliche to say 
``yes'' to diminishing America's patent protection for the little guys. 
After all, who would support these big multinational corporations, they 
said. We just want to take anything these people invent and give them 
whatever we want to give them, or not give them anything. We want to 
have a right to steal from them, and that is why we are trying to 
change the rules. They would never get anywhere. Instead, oh, business 
is being treated unfairly by submarine patentors. That is what they 
have used before, and now they have a new term.

  In this wave, this onslaught--as I said, we have been facing this 
wave after wave for 20 years. They keep coming back, trying to diminish 
our patent structure. Now they insist that we need patent change 
because of the threat of the so-called ``patent troll,'' not to be 
mistaken with a submarine patentor. That was the last one. There will 
always be some, as I say, pejorative word that their PR firm, which 
they pay a lot of money to, can come up with that seems to be sinister 
enough to scare the American people into emasculating our patent system 
and letting the big guy steal the ideas from the little guys.

[[Page H7105]]

  These so-called ``patent trolls'' are actually patent holders or 
companies who represent patent holders. They are either people who 
themselves invented patents or they represent the companies who 
actually have bought in to patents, who represent the patent holders 
themselves. They are engaged basically in defending the patent rights 
against the infringement of those rights of the patents they own. Their 
patents are no different than anybody else's patents.
  They call them ``patent trolls,'' but what we have got here are just 
people who are engaged in the business of enforcing patents that are 
not being enforced. They basically are seeking to protect some little 
guys who don't have the money, or to see that they can join in 
partnership with people in order to maximize their benefit from the 
patents which these people hold. They are valid patents. There is all 
this innuendo and sinister thoughts and phrases coming out to make it 
sound like we are not talking about real, legitimate patents. I am 
talking about people who have invented legitimate patents that have 
been granted by the Patent Office. We are also talking about huge 
corporate infringers that would have us believe that those patents are 
unfair and evil because patent trolls are involved.
  So what makes the difference between the good patents owned by large 
corporations themselves--these corporations we are talking about do own 
patents, and, quite frankly, quite often go and try to enforce other 
patents that they have accumulated and bought. What makes them so 
different from the patent trolls? The patent troll has been identified 
as someone who is out for profit from technology that he or she did not 
invent. Oh, my goodness. You have got somebody who didn't invent 
something and they want to make some money out of it by investing and/
or joining a partnership with somebody who did invent it. That is not 
something as sinister as patent troll sounds.
  We know that lawyers can file illegitimate lawsuits and try to get 
people to settle just because they don't want to go through the 
procedures. That doesn't mean we should destroy the right of people to 
sue when they have a legitimate claim because some lawyers go out and 
misuse the system. That should be up to a judge or a jury, not a 
restriction on the right of people to file suit in order to protect the 
rights and to gain compensation if their rights have been violated.
  If the small inventor doesn't have the resources to enforce his or 
her patent, an individual or a company can buy those rights, and they 
can actually buy them just like you would buy a piece of property. That 
is what it is, intellectual property. They can buy these, or they can 
create a partnership with the inventor, and that means that they can 
then try to seek a suit or some sort of compensation from those who are 
infringing on those patents.
  I have consulted with a number of outside individual inventors and 
groups, and they have reaffirmed to me that the legislation that is 
being now proposed by the Judiciary Committee further disadvantages the 
little guy against the deep-pocketed, multinational corporations that 
are behind the changes that are now being proposed in the United States 
Congress, which I will detail in a few moments.
  Yes, they are using the guise of targeting these patent trolls. They 
hope to achieve a legislation that will prevent little guys from 
actually selling their product to these big guys, or have a dramatic 
impact on the ability--it would probably be more accurate to say will 
have a dramatic impact on the ability of people who own patents to 
actually file suit against those big infringers, and they do this in 
the name of controlling the patent trolls. Again, I say, what does that 
mean? That is someone who necessarily hasn't invented something but is 
working with the inventor to see that those rights are respected.
  How horrible it is to make a business helping small inventors or 
partnering with people in order to see that they have the resources to 
enforce their patent rights against large corporations, mainly, or even 
if they are medium-sized corporations who are infringing on a patent, 
meaning they are using this invention, and the inventor comes in and 
says, You are infringing on my patent. Pay me for the rights of using 
this while I still own it. The answer is ``sue me'' because the big 
corporations know full well that they have deep pockets, and they can 
handle anything, and the little guy, especially if they get this law 
passed, the little guy is not going to be able to seek help, and it is 
going to be much more complicated for him.

                              {time}  1900

  Tonight I draw the attention of the American people to H.R. 3309, the 
Innovation Act they call it this time, introduced by Chairman Goodlatte 
with 14 bipartisan cosponsors.
  This bill is scheduled to be marked up in the House Judiciary 
Committee next week, even though the committee has only held one 
hearing since this bill was introduced, and it was only introduced 8 
legislative days ago. So something is being rammed through the process 
here big time. People need to see that.
  And what are they trying to do?
  Why are they ramming it through?
  Because this is the multinational corporations who want to diminish 
the rights of the little guy; and only, we, the American people, can 
stop that with our sense of fairness and our commitment to making sure 
America remains the technological leader of the world, and that that 
isn't in the hands of these multinational corporations who aren't 
necessarily in allegiance with the United States.
  The witnesses from these hearings on this legislation have included 
former Patent Office Director Kappos, and he made it clear that we 
should move slowly and with great care in making the many changes to 
the patent law that are part of this legislation, especially in light 
of the fact that no one yet understands the implications of the last 
patent bill that was passed through Congress during the last Congress.
  They passed a patent bill called the America Invents Act, which is in 
the process of being implemented and interpreted by the Patent Office 
and by the courts. So we haven't digested that last bite the Congress 
took out of the patent law apple, and now they want us to gobble down a 
few more.
  In and of itself, this legislation is too broad, its implications are 
too unclear, and its impact and effects are unknowable. That is what 
witnesses and other experts have indicated; and the conclusion is move 
forward with caution, not ram something through in just a few days.
  But that is not what is happening. Congress is being railroaded into 
passing this legislation on top of the last legislation which we 
haven't even figured out how it works yet; and now, of course, they 
have got the patent trolls which they are telling us to be afraid of.
  So we don't have to worry about any of that. Don't think. Just 
remember patent trolls are sinister, and we have got to stop them and 
pass this bill. That is what most of these people are hearing here in 
Congress. Congress needs to hear from their own constituents about 
bills like this.
  So what is going on?
  This congressional ramrodding exemplifies the battle to diminish 
America's patent system, and it has been going on for 25 years, wave 
after wave of attack on America's patent system. We fought them back 
most of the time, but this time we could lose. And you lose one, that 
system is changed forever.
  According to the cosponsors of H.R. 3309, it is an attempt to combat 
this problem of patent trolls--and here it is--even though the study 
mandated by Congress in the last patent bill--they mandated this study 
by Congress, and that study that was mandated by the last law--shows 
that this whole much-heralded patent troll problem is not the major 
driver of lawsuits that we are being told, and has not created, N-O-T 
created a surge of new lawsuits.
  Most of the provisions of the legislation they will pass through 
committee next week will make it much more complicated, much more 
costly, much more challenging to bring a lawsuit for patent 
infringement. That is what it is all about. They want to make it more 
difficult to challenge them.
  Instead, if what we are really talking about are people abusing the 
patent system in order to abuse these businessmen, we should be, 
instead, making it cheaper and simpler and easier to defend against 
baseless accusations of infringement.

[[Page H7106]]

  We are being asked to raise the bar for an inventor to bring a 
lawsuit to defend his or her rights, rather than lowering the bar to 
allow a small business to defend itself against frivolous lawsuits.
  In addition, the claim of technical correction, under that claim, 
this legislation proposes to remove the patent system's only 
independent judicial review process, section 145 of title 35. If this 
passes, inventors who are not satisfied with the Patent Office 
administrative process will have no recourse, no recourse, although 
this safeguard of judicial recourse has been in American law since 
1836.
  This isn't some antiquated process. It is an independent judicial 
review; and last year the Supreme Court, in Kappos v. Hyatt, reaffirmed 
the importance of having judicial review when you have people in the 
Patent Office who are defining the property rights of American 
inventors, something so important to our country.
  Now, the Patent Office has requested that judicial review be done 
away with because it is burdensome for them to defend their actions in 
court on the rare occasion that this happens. So, oh, it is burdensome.
  Well, the Patent Office wants to strip away the rights of Americans 
because it is inconvenient to the bureaucracy. Boy, here is where we 
have got the bureaucracy and multinational corporations working hand-
in-glove.
  This legislation going before the Judiciary Committee here in the 
House next week is consistent with the decades-long war being waged on 
America's independent inventors.
  Here are some of the sections of that bill I have been talking about, 
H.R. 3309, which will be going through the Judiciary Committee next 
week, and how it undermines America's patent system and patent rights 
of the little guy and opens up power grabs by the multinational 
corporations, which is something we have been experiencing for the last 
25 years and have had to beat back every time.
  Well, here we go. Here are some provisions of this bill: H.R. 3309 
creates additional information requirements, which means when you are 
filing a legal case for infringement it is going to cost you a lot 
more. There is more paperwork and thus more potential for a dismissal 
of the case just on a technicality.
  More paperwork means higher costs, more likely to have the case 
thrown out on a technicality, which then increases, not decreases, the 
chances of small patent holders being infringed.
  This bill also switches to ``loser pays.'' And of course, ``loser 
pays'' sounds like a good idea; but when you talk about this in terms 
of patent rights, what we have got is these huge corporations who have 
got deep pockets, and if you end up having ``loser pays,'' the little 
guy knows for him to actually try to have the loser pay means that this 
big corporation can put massive expenses on to their defense, where you 
have only a smaller amount that is available, so you are then put in 
great disadvantage.
  We are, again, making the little guy, putting them at the 
disadvantage of these big, multinational corporations.
  H.R. 3309 adds a new dimension to this ``loser pays.'' It allows the 
Court to bring others into the case involuntarily, as a plaintiff, if 
they have an interest in the patent they make them liable for the cost. 
So if you have somebody, like Milo Farnsworth, whose patent was stolen, 
whose idea was stolen, anybody who would invest in his lawsuit, which 
is what he had to do in order to take it all the way to the Supreme 
Court--and God bless the Supreme Court of the United States and the 
United States of the America, that we have a court that sided with this 
little guy.

  But now they want to change that so the Milo Farnsworths can't get 
people to invest in their suit because at that point they, then, are 
liable for the court costs of the big corporation that is being taken 
on.
  This is so broad that people can be made part of an infringement 
case, even if their interest in the patent is just legal or innocent, 
such as those who have licensed the patent.
  This, combined with the ``loser pay'' provision, means that if the 
patent holder loses the infringement suit, anyone who has done business 
with him may lose or be held financially liable. What a disincentive 
for people to support the efforts of small inventors.
  This is absurd. But yet this is what is going to be going through the 
Judiciary Committee next week, just like they have tried to push this 
on us for 25 years. And the players behind this are big, multinational 
corporations trying to steal the technology that has been invented by 
America's small inventors.
  H.R. 3309 allows the courts to limit discovery until clarifying the 
patent and infringement claim.
  What does that mean? The case will take longer and thus cost more.
  The transparency of patent ownership, once filing a claim for 
infringement, a patent holder must, according to the provisions of this 
proposed legislation, provide information about all parties with an 
interest in the patent to the Patent Office and to the accused 
infringer.
  As a result, we have an elimination of privacy in these business 
dealings. The little guy is totally exposed, as are his friends.
  Here again we are trying to do everything we can, and this 
legislation is trying to do everything that it can to try to get people 
not to support the little inventor. Don't get on his side. Don't give 
him any strength to enforce his rights because he invented something 
that now some multinational corporation has stolen and wants to 
manufacture in China.
  Once this requirement has been invoked, the patent holder must 
maintain--here it comes--the patent holder will also have to maintain a 
current record of information on file in the Patent Office. Thus we 
have, again, bureaucratic reporting requirements for these little 
inventors.
  That, to a big corporation, means nothing. To a small inventor, it 
means all of his time, all of his resources. And if, indeed, they do 
not report--let's put it this way, if he doesn't report it right, he 
could lose the intellectual property rights he is trying to protect.
  In addition, the patent holder would be forced to pay recordkeeping 
fees to maintain a current record at the Patent Office. There we have 
bureaucratic fees all aimed at the little guy, because the big guys can 
afford this. They have got people on the payroll. They have got lawyers 
on the payroll.
  Then we have the customer suit exemption. This section appears to 
remove all of the current section 296 of title 35, which specifically 
allows--here it goes, this is really significant--this allows inventors 
to sue governments who infringe on their patents.
  What we are talking about here is, if a government steals a person's 
intellectual property, it permits them to get away with it. This 
emasculates the right of the American inventor, American people, to 
hold their government accountable if the government steals their 
technology. This is totally contrary to American tradition.
  Limits of discovery in a court case, unless the judgment determines 
necessary and appropriate, again, an infringer, and this is section 6 
of H.R. 3309, an infringer, especially big ones like large 
multinational corporations, may make an infringement paper trail.
  This requires a paper trail, what we are saying here, this section, 
that is so broad and so diverse that a plaintiff will have to ask 
repeatedly for discovery.
  The SPEAKER pro tempore. The gentleman's time has expired.

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