[Congressional Record Volume 159, Number 164 (Monday, November 18, 2013)]
[House]
[Pages H7182-H7185]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FREEDOM AND TECHNOLOGY
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, there is a piece of legislation that
will be going through the Judiciary Committee on Wednesday that the
American people need to be alerted about. It goes right to the heart of
our prosperity, right to the heart of our national security, right to
the heart of the well-being of average Americans.
Our Founding Fathers believed that with technology and freedom--and,
yes, with the profit motive--that those things would uplift all of
humankind and that this would be the formula that would make America a
great Nation. In fact, they wrote into our Constitution a mandate that
guarantees
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the rights of inventors and authors. It is the only place in the body
of the Constitution that the word ``right'' is used.
I quote article I, section 8, clause 8 of the Constitution of the
United States:
The 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.
This provision has served America well, leading to general
prosperity, national security, and also to the decent living of average
people.
This is compared to the anxieties and the horror stories that the
common man was living in, which prevailed in the days when our
Constitution was written. Throughout the world, ordinary people lived
in poverty, and they lived under repression and in a constant state of
oppression. What broke this cycle of repression and deprivation and
what built a great country here in the United States--an example to the
world--was freedom and technology, yes, and guaranteed freedom and
technology through the rule of law through our Constitution.
The Americans worked hard to build this great country, yes, but that
is not what made the difference. That is not what made us a great
country, of how we broke out of that cycle of repression that mankind
suffered under for so long. What made the difference was that
technology multiplied the results of the hard work of our people.
People have been working hard since ancient times. People still work
hard today all over the world. The difference is that Americans brought
technology to bear on these problems, multiplying the creation of
wealth and, thus, the uplifting of ordinary people.
It was our strong patent system that ensured that technology and
freedom would work its magic. We can see now that we have had the
strongest and the best patent system throughout our country's history,
and it has been heralded throughout the world. Yet, today,
multinational corporations, some of them run by Americans--and some
wonder, when the Americans are running these companies, whose
allegiance they have--want to diminish the patent protection of the
American people.
In my 25 years, battles have been fought over and over again, often
turned back sometimes through compromise, but these efforts over these
last 25 years have been aimed at dramatically weakening our patent
system. So, basically, the argument has been made over and over again
that we need to harmonize America's patent system with the rest of the
world's. We have the strongest patent system in the world. We have
rights that are guaranteed. Our other rights to speech and prayer, we
would never think about harmonizing those with the rest of the
world's--we would want to have the strongest constitutional
protections--but now these big companies want to weaken the protection
of the intellectual property of our own Americans by harmonizing our
law with the weaker laws in Japan and Europe. I say, if they want to
harmonize laws, they should be demanding that those other countries
strengthen their laws so that the individuals in those countries are
protected as Americans have been.
How did that play specifically in terms of demands to change the law,
demands which we have managed to thwart over these last 25 years?
Basically, in Europe and Japan, if someone applies for a patent,
after 18 months, that patent is published even if that patent has not
been granted, meaning the application that the inventor has given out
to show his genius is disclosed to everybody in the world. They wanted
to do that to the American inventor. If you filed your patent, after 18
months, even if you hadn't received your patent, they were going to
publish it. Talk about an invitation to steal. We beat that back, but
it was a tough fight. These same people right now are the ones that we
are fighting. They are trying to change the patent system in the bill
that is going through on Wednesday in the Judiciary Committee.
What do they also want to do? On what else did we have to fight back?
In the United States, as the Constitution says, for 17 years, if
someone files for a patent and is granted the patent, no matter how
long it takes, you are going to have 17 years in which you own that new
idea, that new concept. Guess what? Overseas, that is not the way it
is. The minute you file overseas--let's say it takes 15 years for you
to get your patent because it is very complicated, and it deals by its
very nature with new science and new ideas--guess what? The clock
starts ticking immediately when you file for the patent. Sometimes
people will have all of their patents' time eaten up by the
bureaucracy, which, of course, gives these major corporations in Europe
the edge of influencing the bureaucracy when they are going to want to
approve or to disapprove of a new innovation, a new piece of
technology, for which someone is asking for a patent. Thus, these big
corporations are able to force small inventors into deals for their
creations, saying that we can fence you in, and you won't ever be able
to use it anyway.
We won most of these fights, and the two I just mentioned. Trying to
make sure that a patent application that hasn't been granted won't be
published, we beat that back. We beat back the idea that the clock is
going to start ticking right away so that, if it takes a long time for
a patent to be issued, the inventor won't lose all of his rights. We
won most of those, and there were some compromises, but this fight
never ends with these big companies, with these globalists who have a
global sense of the economy, a global sense of freedom, a global sense
of the American people in that we are not so unique and that we are
just part of the global system. They keep coming back and coming back.
As for the multinational corporations which have sought to remove
these other things that I was mentioning a while ago and to put those
in place, they now have another offensive on the way, and I find myself
fighting for the small inventors, who are struggling to defend their
patent rights, and for the patent rights of all Americans and America's
innovators. Of course, we don't see these big corporations presenting
an idea to Congress, saying we want to lessen the patent protection of
ordinary Americans. No. Instead, they always have to come up with a
very sinister-sounding word. Then they hire the best PR people in the
world to promote this image in the public's mind.
Before that sinister force that we had to diminish our patent
protection for--that we had to make sure that our own inventors could
have their patent applications published after 18 months or have the
clock ticking away so they would never have a right to enforce their
patents--that sinister portion in those days was called a ``submarine
patent.'' It was described in these sinister, derogatory terms, and,
boy, they almost succeeded, but we beat them back in their attempt to
use a scare tactic to get the American people to fundamentally change
our patent system, which has worked so well for us and has affected the
standard of living of ordinary Americans.
Now there is another term that is being used. It is even more
sinister sounding. I wonder what PR firm was paid how many hundreds of
thousands of dollars to come up with it and then millions of dollars to
promote this sinister phrase so that people would accept it. The term
is ``patent troll.'' Yes, ``patent troll.'' There is a good, sinister
term. There are patent trolls out there; thus, we have got to change
the basics of our patent system in a way that hurts the little guy's
ability to protect his own intellectual property rights when it comes
to his patent.
These so-called ``patent trolls'' are patent holders or they are
companies which represent patent holders. They are engaged in defending
their rights as part of the Constitution--their intellectual property
rights--against the infringement of those patents which they own. They
are their patents. We are not talking about someone who is stealing a
patent from someone. We are not talking about a frivolous suit. We are
talking about someone who owns a patent that has been issued to him by
the Patent Office. Those patents that they own are just as valid as,
perhaps, all of the other patents that are granted by the Patent
Office. Yet these huge corporate entities would infringe on the patent
rights of the little guy and would give them the middle finger and tell
them ``sue me if you think you can
[[Page H7184]]
get any enforcement of it.'' No, no, no. These people would have us
believe that patent trolls--people who are defending patents that are
legitimate patents--are in some way doing something evil.
What makes the patents of these people who are what they call
``patent trolls'' different than the good patents which are owned by
these very same multinational corporations, by these very same
corporations who bring very similar litigation forward when their
patents are being violated?
The so-called ``patent troll'' has been identified as being out for
profit. This is where they say they are different, that they are out
for profit, not from actually seeing technology being used, or that
they are out for profit by getting involved in something that he or she
did not invent. Surprise, surprise. We have got lawyers who are engaged
in litigation only for the fact that they are going to make some money
out of the litigation.
Yes, we have frivolous lawsuits, and we should do what we can to stop
them in this country, but that doesn't mean that you change the
fundamental rights of those people whose rights are being 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 just like it
could buy some land from someone who didn't have the resources to plant
it or it could commercially try to sell it or to create a partnership.
{time} 2130
They can also, or create a partnership.
The small inventor can now go into a partnership or sell his patent
rights to someone else. Basically, if they can't enforce their rights
because a big company is infringing upon them, they need help. Up until
now, they have been legally entitled to get it.
I have consulted with a number of outside individual inventors and
groups, and they have reaffirmed that the legislation being proposed in
the Judiciary Committee further disadvantages the little guy against
the deep-pocketed, multi-national corporations. Many of these multi-
national corporations, what they do now is they don't do patent
searches when they are utilizing new technology to upgrade the machines
and the equipment that they own. They don't do patent searches so that
they can just say they didn't know.
Well, in the past, they have taken great pains to make sure they
weren't stepping on somebody's toes. Now, if somebody comes to them,
they have intentionally not educated themselves to the ownership rights
of this individual and they just tell them, well, sue me in court,
knowing that most of these people are such little guys they can't
enforce their rights.
By the way, this is true of not just patents, but across the board.
The little guys in our country need the help of lawyers who sometimes
have to work on contingency or are many times just working on a profit
motive to help a little guy against a big guy who has infringed on
their rights.
This guise of targeting the so-called ``patent trolls,'' meaning this
person or a company who has contracted with the inventor to see that
his or her patent rights are respected, that these guys are supposedly
horrible. Well, how horrible it is making a business out of helping
small inventors or just seeing that an inventor who has not had the
ability to commercialize and to enforce his patents, that instead what
we have got is people who are out to help that person now enforce the
rights that he has under our Constitution, just the same if someone
decided not to farm their land. If you own a piece of land and you have
decided not to farm it and you want to turn it into some sort of a bird
sanctuary, that is your right as long as you own that land. Our
Constitution says that people who invent some new ideas have 17 years
of ownership, property ownership, on their idea. Now they are trying to
stop that; they are trying to change that.
Proponents of this legislation that will go through the Judiciary
Committee on Wednesday are covering up the fact that what we are
dealing with here is someone who has stolen someone else's patent
rights, and now they want to change the system so they can get away
with that theft. That is the primary purpose behind this legislation.
Now, they will say, oh, we just don't want these big companies, these
multi-nationals, to be taken advantage of by someone who owns a patent,
a lawful patent, and now is trying to enforce it after not having
enforced it for a long period of time.
Well, I would hope that all people will try their best to get their
patent on the market and to do good things with these new technologies.
In fact, 95 percent of the people I know who are inventors struggle
their hardest to get their patent sold and into the commercial market
and being put to use because they know other inventions are coming
along that are going to take their place. So this is a very small
issue, if it is one at all. But the fact is the market is coping with
this, is encouraging people who own patents to put them in play. Let
the marketplace, let our companies utilize those patents, because they
will make a profit out of it.
Tonight, I draw attention of the American people and my colleagues to
H.R. 3309, the Innovation Act they call it this time, introduced by
Chairman Goodlatte with 14 bipartisan cosponsors. This bill is
scheduled, as I said, to be marked up in the House Judiciary Committee
this week even though the committee has only held one hearing on this
bill since the introduction of the bill, and that hearing was only 10
legislative days ago.
There are major other forces besides these multi-national
corporations that are at play here, whether we are talking about
hospitals and doctors or whether we are talking about other groups in
our society like universities and others who own patents. There are a
lot of people who are going to lose if this goes through, and they need
time to communicate with their representatives. Instead, they are
ramrodding this through very quickly.
The witnesses at the hearing that they did have included former
Patent Office Director Kappos, who made it clear that we should move
slowly and with very great care in making such great changes to the
patent law, especially in light of the fact that no one yet understands
the implications of the last patent law they passed during the last
Congress called the America Invents Act, the AIA. That was Congress'
last patent bill, which is right now in the process of being
implemented and interpreted by the Patent Office and by the courts.
So we haven't even digested the last bite that Congress has taken out
of the patent law apple, and now they want to gobble down a few more
bites. In and of itself, this legislation is too broad, its
implications are too unclear, and its effects are unknowable. That is
what is going to happen. They are going to put that bill right through
the process starting on Wednesday at the Judiciary Committee. That is
what witnesses and other experts have indicated to us. The conclusion:
move forward with caution. But that is not what is happening.
Congress is being railroaded to pass this legislation on top of the
last legislation. Well, what is going on here? The congressional
ramrodding exemplifies the battle to diminish America's patent system
that has been going on for 25 years, the same globalist multi-national
corporations who may or may not have had interest of the American
people at heart.
According to the sponsors of H.R. 3309, it is an attempt to combat
the problem of patent trolls. Oh, my gosh, be afraid of patent trolls
and weaken the rights of our patent holders, even though a study that
was mandated by Congress in the last patent bill that passed just a
couple years ago, that study hasn't even been consulted and been made
part of this debate. That study showed that this ``problem'' supposedly
that we have, this patent troll thing that has come up now is not
really a major driver of lawsuits.
A study that was commissioned by the last patent bill has decided it
is not--not--a major driver of lawsuits and has not caused a surge of
new lawsuits. Most of the provisions in the legislation that they will
pass through the committee this week will make it much more
complicated, much more costly, and much more challenging to bring a
lawsuit for patent infringement rather than making it simpler, cheaper,
and easier to defend against baseless accusations of infringement.
We are being told that these people who are leading the trolls have
some
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sort of an unjustified claim, that these are false patents, these
things shouldn't be enforced. But they haven't done that. What they are
doing is preventing people who have regular claims, people who have
legitimate claims, from seeking damages from big companies, big guys,
who intentionally are infringing upon them.
We are being asked to raise the bar for the inventor to bring a
lawsuit to defend his or her rights. We are making it more difficult
for the inventor, rather than easier for these big companies to brush
away frivolous lawsuits. We instead are making it harder on inventors
to defend their legitimate property rights. So rather than lowering the
bar to allow small business to defend itself against frivolous
lawsuits, we are basically raising the bar when it comes to inventors
to protect their rights.
In addition, under the claim of ``technical correction,'' this
legislation proposes to remove the patent system's only independent
judicial process. That is in section 45 of title 35. If this passes,
inventors who are not satisfied that the Patent Office has actually
treated them fairly, that the bureaucracy has worked within the law,
that they have not been cheated, there is not some collusion going on,
the fact is there will be no recourse to an inventor who feels that he
has been wronged by our own bureaucracy.
Although this safeguard that we have had that prevents the
bureaucracy from doing things that are illegal or out of procedure or
violating someone's rights, those safeguards of having a judicial
review have been part of our American law system since 1836. It isn't
some antiquated process; it is independent judicial review. Last year,
the Supreme Court of the United States in Kappos v. Hyatt reaffirmed
the importance of this provision.
Now the Patent Office has been requested that judicial review be done
away with because it is so burdensome--so burdensome--to have a
judicial review in case some people within our bureaucracy are acting
illegally or incompetently. Oh, we can't allow that because it is too
burdensome for the bureaucracy to defend their actions in a courtroom
even though this happens on very rare occasions, very rare occasions
because we have that recourse. Take away that recourse and those
problems will be a lot more. They will grow because there will be
nothing to stop them from wrong action in the bureaucracy. The Patent
Office wants to strip away the rights of Americans because it is
inconvenient to their bureaucracy.
The legislation going before the Judiciary Committee here in the
House this week is consistent with the decades-long battle being waged
on America's independent inventors by multi-national corporations. Here
are a few of the provisions:
Might I ask the Chair how much more time I have remaining.
The SPEAKER pro tempore. The gentleman has 4 minutes remaining.
Mr. ROHRABACHER. The Innovation Act will create more paperwork when
the inventor files for an infringement claim, thus increasing the cost
to defend their rights and a potential for having the case dismissed on
a technicality is greatly expanded.
The Innovation Act will switch us to a ``loser pays'' system, which
means the little guy is going to fight some future corporation who has
got lawyers on their payroll. That little guy now has to realize he is
going to pay enormous costs where the, of course, big corporation only
has to pay the legal fees. If you have loser pays, that is what that
provision is all about. The big corporation will only have to pay for
that little guy. The little guy will have to pay huge expenses and
thus, what is it, he is deterred from protecting his own rights. Let's
just say loser pays is a loser for the little guy and a big winner for
the big guy.
This is so broad they are expanding now who will have to pay with the
loser pays. This bill actually brings in people who will now be
expected to pay the expenses of these big corporations who are
infringing. If that guy loses, if the little guy loses, anybody who has
even helped the little guy will be brought in and they will be libel
for the loser pays provisions. What does that mean? That means little
guys will never be able to get outside help from people to invest in
their suit. Philo Farnsworth, the inventor of the picture tube, had to
get people to help him because RCA was ripping him off and he had
people invest to help pay for his legal fees. This bill would eliminate
that by making all of those people libel.
Section 4 of this new bill, the Innovation Act, would create new
requirements that a patent holder must meet, once filing a claim of
infringement, by providing information about all parties. When he files
for an infringement, he has to give information of all the parties,
including those people who may have invested in his suit. Thus, we have
a blanket. Now we have people exposed to all sorts of harassment. Just
for what? For backing up someone's right and saying, I will give you
some money to defend your rights.
There is no reason for us to have this type of exposure that has
never been required before. This will, again, put great pressure on
people not to get involved to help those people whose patents are being
infringed upon.
{time} 2145
There is a provision in the bill that actually limits the amount of
time and things that can be required in discovery, which means the
little guy will now have to have many motions of discovery, and every
motion will cost him money, rather than having one motion. These things
are very complicated and very hard to understand for the American
people, but what they add up to, they have been thought out very well
because the big companies know how to beat the little guys down, and
that is what this bill is all about.
If we were instead trying to eliminate frivolous lawsuits, which we
should, there would be a whole different approach to this. This would
be enabling those large companies to defeat frivolous lawsuits.
Instead, what we have going through our Judiciary Committee is a bill
that makes it harder for those people who are the innovators and the
inventors to defend their intellectual property rights.
I would ask my fellow colleagues to join me in opposing this bill.
And I ask the American people to pay attention to what is going on and
make sure that this attempt to, again, diminish the patent rights of
the American people is defeated and, again, that the rights of our
people to live in prosperity and to have national security based on our
great innovation is protected from multinational corporations who are
motivated simply by greed and not for the benefit of the people of the
United States.
I yield back the balance of my time.
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