[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

[[Page H7183]]

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

[[Page H7185]]

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.

                          ____________________