[Congressional Record Volume 159, Number 169 (Monday, December 2, 2013)]
[House]
[Pages H7390-H7393]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE CONGRESS THAT KILLED THE PATENT SYSTEM

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2013, the Chair recognizes the gentleman from California 
(Mr. Rohrabacher) until 10 p.m.
  Mr. ROHRABACHER. Mr. Speaker, I would ask my colleagues, do we want 
to be known as the Congress that killed the U.S. patent system, a 
patent system which has served the American people well for 225 years?
  I ask America, America, are you listening?
  Congress is, once again, talking about reforming the patent system. 
The last patent reform bill, which passed last year, was the America 
Invents Act, and it just went into effect earlier this year, and patent 
lawyers and courts and inventors are still trying to figure out the 
implications of that change, of the change that that legislation made, 
and it was the most sweeping change in patent law in the history of our 
country.
  Yet, even before we are able to judge the effects of the America 
Invents Act, a new patent bill is being rammed through this House and 
through Congress.
  I wish I could focus simply on the bad provisions of this new bill, 
the Innovation Act. I like to think of it as the Anti-Innovation Act, 
H.R. 3309, which is expected to be on the floor later this week.
  But if the bill is bad, which we are talking about, the process being 
used to stifle debate and ram this down the congressional throats here 
on the floor is even worse. In the one Judiciary Committee hearing, 
witness after witness strongly recommended moving forward slowly, and 
warned of unintended consequences.
  It only takes a few minutes to consider each provision of this bill 
to see that, although it may be aimed at a single thorn in the side of 
mega-electronic companies, it will create much more pain in other 
industries, in higher education, and especially to individual 
inventors.
  In the rush to get H.R. 3309 onto the floor so quickly, it has not 
been even one single day between when this bill passed the Judiciary 
Committee and then, thus, becoming available to Members of the House, 
once it passes the Judiciary Committee, and there has only not even 
been one single day of legislative business for Members to consider and 
submit amendments to the Rules Committee for this important 
legislation, not one single full day of legislative work, and now this 
is being rammed down our throats.
  And of course, the Thanksgiving holiday happened right after they 
passed it through the committee. The holiday was right in the middle of 
a very short time line which, of course, virtually guaranteed that all 
Members, and most of the staff would not be in Washington, D.C., thus, 
they passed it right before we left town.
  And this schedule suggests what? It suggests that the fix was in. The 
clear message to little inventors: give thanks for your intellectual 
property rights because you may not have them this time next year.
  Well, this isn't just about rapid, it is also about covert. It seems 
that we have to pass this bill to find out what is in it. That hasn't 
worked well for America in the past, and it sure shouldn't be happening 
again on our watch.
  I am calling on my friends and my colleagues who haven't had time to 
fully understand the implications of this legislation, and that means 
almost everybody in this body, and we are just back today from the 
holiday break. If you haven't had time to fully understand the 
implications of this legislation, join me in demanding a postponement 
of this vote until after the holiday season, which will give us all 
sufficient time to consult with our constituents, with experts, and to 
better understand this legislation and the implications it will have 
for industry, for American progress, for American inventors and 
innovators.
  Now, to the content of this legislation. We are told this bill is 
aimed at the threat of so-called patent trolls. These so-called 
villainous trolls are patent holders, or they are companies who 
represent patent holders. They are engaged in defending their rights, 
given to them by ownership of that patent, against the infringement of 
their patents by someone else.
  They own these patents, and these are just as valid as any other 
patents granted by the Patent Office. But huge corporate infringers 
would have us believe that these patents are questionable, invalid, 
unworthy; they are unworthy of being a patent in the first place. Of 
course, these are the same corporations who have taken these patents 
and used them without paying the lawful fee that you would pay to 
someone who invented something that you are using.
  Well, this is not the case. They are not paying the inventor, and the 
patents that are being targeted by these multinational electronics 
firms as claiming that they are illegitimate, well, most of these were 
just the product of small inventors. And these small inventors, quite 
often, because they are

[[Page H7391]]

up against mega, multinational corporations, are without a means to 
defend their rights if these corporations arrogantly decide to violate 
those patent rights.
  And what makes these vilified patents different from the good patents 
that are owned by these very same large corporations? Well, the so-
called patent troll. It happens to be, most of the time, patent trolls 
are lawyers to take a case on to defend the little guy from theft, but 
that lawyer didn't invent it. That makes him bad because he is not 
working for a company, a big mega-company that invents things. No, he 
is working for a little guy, or he has bought the rights the little man 
has so that he will get something out of his work.
  Well, being out for profit from technology, and from technology that 
someone did not, he or she, invent themselves, now that is really 
horrible. Doesn't that sound horrible? Well, no it is not. We live in a 
society where people litigate to protect their rights, and there is 
nothing wrong.
  We are being told that the patents in question that are going to be 
dealt with by this legislation, there is a hint that they are not 
legitimate patents; they are owned by patent trolls. Well, so much for 
calculated confusion. If the small inventor doesn't have the resources 
to enforce his or her patent, an individual or company can buy those 
rights, just like if they don't have the ability to farm, to plant on a 
farm, they can sell those rights, or they can create a partnership so 
that they can actually afford to actually protect themselves from being 
cheated out of their rightful compensation.

  I have spoken to independent inventors, conservative political 
organizations, the American, and all of these people are very 
suspicious, of course, of these changes that are being put into place 
in terms of a person's right to litigate to protect their individual 
rights.
  Well, those people are also--there are people who are very suspicious 
of this legislation, the American Bar Association, industry groups. You 
have got biotech and pharma, these people, and universities throughout 
our country who are opposed, or at least very concerned about what is 
going to happen by H.R. 3309, the so-called Innovation Act, which, as I 
say, should better be called the Anti-Innovation Act.
  Well, we know that this bill, if passed, will further basically 
further work against the interest, and it will further the 
disadvantages that the little guys have against deep-pocketed 
multinational corporations. And this is achieved in the guise, of 
course, of attacking patent trolls.
  See, they have used this word, demonized this word. I happen to have 
met a person, a man who is a big executive in a major corporation, a 
major electronics corporation, who was in the meeting with other 
electronics officials when they coined the phrase, ``patent troll.'' 
They were doing it specifically to demonize these lawyers, because they 
knew they couldn't go after the little inventor or the small inventor 
or the independent inventor. They couldn't go after him and demonize 
them, even though they were stealing the patent rights from these 
individuals, so they would go after the lawyer.

                              {time}  2145

  This person was saying that they went around the room with their 
ideas: What is the most heinous word we could use to help blind the 
people about what is really going on? He had suggested ``patent 
pirate,'' but they had decided on ``patent troll.'' Don't be blinded to 
the theft that is being justified here by demonizing a group of lawyers 
who are trying to defend small businessmen, basically small inventors.
  Proponents of this legislation are demonizing patent lawyers to draw 
attention away from the fact that they have stolen someone else's 
patent-protected technology. Now the big guys want to change the system 
so they can get away with the theft. That is what H.R. 3309 is all 
about, and that is why it should be called ``the Anti-Innovation Act.''
  It is an aggressive attack on the ability of inventors to defend 
their ownership rights to the technology they have invented. It is not 
about frivolous lawsuits or trolls. That is a cynical cover that is 
being used and was created by the big guys as a license to steal from 
the little guys.
  Former Patent Office Director Kappos and other former directors of 
the Patent Office have made it clear that we should move slowly about 
this type of change and with great care when we are making such major 
changes in the patent law. This legislation is too broad. The 
simplifications are unclear. The effect is unknowable. That is what 
witnesses and other experts have indicated. They conclude, ``Move 
forward with caution.''
  So I ask my colleagues to vote against this bill, but if we can, 
let's ask our leadership, as I have pleaded with our leadership, to 
postpone this so we can talk to our educators, talk to the 
universities, talk to the various employers in our districts, talk to 
the various people who depend on technology and the technology 
developed in our country rather than to just go with mega-multinational 
electronics companies that are guilty of multi-infringement cases as 
well as antitrust cases.
  That is not happening. Congress is being railroaded into passing this 
legislation right on top of the last legislation. Well, what is going 
on here? As I say, it is a heavyhanded attempt by mega-multinational 
corporations to diminish the viability of America's patent system. It 
has been going on this way--and I have seen this for 25 years.
  Strong patent protection has been one of America's greatest assets. 
It is written into our Constitution. It is the thing that has given us 
the ability to have high wages yet be competitive with other societies. 
It has protected the security of our country and our liberty. That is 
what strong patent protections have been to us.
  But according to the sponsors of H.R. 3309, this isn't really 
something about undermining the patent system, no; it is undermining 
the trolls. Just by the fact that everything that they are doing has a 
major impact on the ability of lawful inventors to protect themselves 
against infringement, and it diminishes the patent protection that we 
have had traditionally in this country. Every provision.
  Well, what does it do? For the most part, this legislation will make 
it much more complicated, costly, and challenging to bring a lawsuit 
against an infringer. For the little guy, it is going to cost him much 
more to protect his rights.
  Well, there you go. These people would like to restrict lawsuits that 
are totally legitimate to control a few people who have manipulated the 
system, and thus are abusive lawsuits.
  Well, we face this all over. There are many lawyers who are engaged 
in abusive lawsuits which they shouldn't be filing, but they do. Does 
that mean that we are going to dramatically limit the rights of the 
American people to litigate when their rights have been violated by 
someone else, their property has been taken, or they have been abused 
and they deserve compensation? No. We are not going to limit those 
rights. But we will limit the rights of the small inventor and let 
these big megacorporations take what they want from what this person 
has invented and not give them compensation for it.
  Rather than making it simpler, cheaper, and easier to defend against 
baseless accusations of infringement--and there are some baseless--what 
we have done to reduce spurious lawsuits, all we need to do is 
strengthen the good guys. But this bill weakens the good guys. It 
weakens ordinary people who are actually contributing a great deal to 
our country, the independent inventors.
  In addition, under the claim of ``technical correction,'' this 
legislation proposes the removal of the patent system's only 
independent judicial review process. Section 145 of title 35 in this 
legislation, if it is enacted, inventors who really believe they have 
not been treated fairly by the Patent Office--I mean, there may be 
people in the Patent Office who want to go to work for some major 
corporation if they decide a certain way, and what they have done, 
maybe it is not legal. Maybe these things happen in every society, and 
we need to have a review.
  In fact, since 1836, American inventors, if they feel the Patent 
Office has not dealt with them in a legal way, they have the right to 
seek independent judicial review. By the way, that right was reaffirmed 
last year by the Supreme Court in Kappos versus

[[Page H7392]]

Hyatt, which reaffirmed the importance of that review to maintaining 
the rights of our inventors. Well, this bill would eliminate that 
right. It just takes it away, something that has been the right of 
American inventors since 1836.
  I would like to quote my colleague from Texas, Mr. Lamar Smith, 
chairman of the Science Committee and former chairman of the Judiciary 
Committee, who is the primary author of the America Invents Act, 
speaking about new environmental regulations at a Science Committee 
hearing a few weeks ago:

       Our Founders recognized that elections alone may not 
     provide adequate protection for the liberties they fought so 
     hard to establish. They made sure that the Constitution 
     provides a means for the American people to obtain a fair 
     hearing before impartial judges.
       This may be one of the most underrated rights Americans 
     enjoy today--the right to judicial review. This proposal is 
     an attempt to prevent judicial review. Americans deserve to 
     understand exactly what this proposal would do and retain the 
     right to challenge it.

  In it, Mr. Speaker, he went into how important it is to have judicial 
review, and that Americans understand how important it is to have not 
just bureaucrats but a judicial review of what government officials are 
doing, and how important that is to our freedom.
  Well, I would say to the gentleman from Texas, Yes, Mr. Smith, I 
would agree. He is the chairman of my committee, the Science Committee. 
I am the vice chairman of the Science Committee.
  We disagree on this bill, but I will say that this is an important 
part of the bill. H.R. 3309 would eliminate the ability for the court 
to review what these government officials are doing in their job if 
they hurt another individual. Mr. Smith thinks that is important when 
it comes to the environment. I think it is important for the 
environment and for protecting our inventors. This principle applies 
just as certainly, as I say, to patent review as it does to 
environmental regulations.
  Now the Patent Office officials have requested, of course, that they 
don't want to have that judicial review. Why is it? Because they say it 
is too burdensome. Never mind that very few people have such claims. 
But we are going to eliminate that right and that option because it is 
inconvenient for our bureaucracy. That is absurd. For that reason 
alone, this bill should be defeated.
  The legislation going before the House this week is consistent with a 
decades-long war being waged on America's independent inventors. Here 
are a few of the provisions of the bill:
  It will create more paperwork. When an inventor has to file an 
infringement claim, it dramatically increases the paperwork necessary 
for him to file the claim, and, thus, it is not any more expensive, but 
it increases the possibility that his claim will just be denied out of 
some technical mistake in the paperwork.
  The Innovation Act will switch us to a ``loser pays'' system. Now, of 
course, ``loser pays'' sounds pretty good. That means, if you file a 
bad suit or something or you lose a suit, the loser is going to pay the 
legal expenses for the winner. What does that do when you have little 
guy against big guy, the small inventor versus mega-multibillion dollar 
international corporation? What it does is say, if a little guy sues 
the corporation and loses, that is nothing. Paying his legal expenses 
are absolutely nothing for this big corporation. But if he loses to the 
corporation, that corporation will have piled on legal expenses that 
will destroy the economic viability of that small inventor. It is 
little guy versus big guy. In this case, making the loser pay is a big 
advantage to the big guy at the expense of the little guy.
  What is unfortunate, this bill goes even further than that. This bill 
will allow the court to bring others into the case as plaintiffs if 
they have an interest in the patent. So if someone is invested in the 
person's patent--in the little guy's patent--they have invested in it, 
and they lose a lawsuit trying to enforce their rights to have 
compensation for the use of what they have invented, if they lose that 
suit, the person who is invested with the little guy, he is going to be 
liable for this massive bill that these big companies are bound to pile 
on. So this ``loser pays'' system has some attraction but, in reality, 
will be a disaster for the little guy trying to enforce his rights.
  We have also in this bill that it would create new requirements that 
the patent holder, once filing a claim for infringement, must provide 
information about all parties who have an interest in the patent. Thus, 
what we have is a list that even the infringer will have. So this man, 
a small businessman, an inventor, will then have all of his business 
dealings then basically be made public, and his enemies will have that 
list to go after. This would have destroyed Thomas Edison. This would 
have destroyed our great inventors of the past. There are people who 
don't want to put themselves in public view in order to get behind new 
inventions. This means the total elimination of privacy in dealing with 
businesses.
  Of course, we have another requirement in here that basically is a 
reporting requirements for the little guy. We have bureaucratic fees 
that are being forced on the little guy to maintain records that they 
now don't have to maintain. Thus, you have the situation where the 
little guy has to have the expense of maintaining a bunch of records, 
and these things now are just yet another stumbling block.
  One of the other restrictions on the little guy is, if he files a 
suit against the big guys, there is a thing called discovery. Well, 
everybody else can have discovery, but these little patent guys, these 
little inventors, if they are filing a suit against a major infringer, 
not only do you have to be so specific about what you want--we have 
replaced a system where there will be one motion--we replaced it, which 
will require dozens of motions, each motion costing the little inventor 
tens of thousands of dollars in legal fees.
  We are upping the cost, upping the cost, upping the cost, 
complications, and legal ramifications of a man or woman protecting his 
or her patent that is a legitimate patent all in the name of getting 
those terrible trolls, and the troll might not even be involved in 
this. There might not be any lawyer who is volunteering or is investing 
in this project.
  So what we have got, of course, is another thing where the person is 
there--you may call him a troll, but now the small business and 
education outreach part of this is, it authorizes the Patent Office 
director to create a patent troll database. That means that anybody who 
goes out to help these small inventors is going to be on a database. I 
guess you shouldn't really call that a database. Let's call that an 
enemies list. Because that is probably what it would be used for. Oh, 
no; that list was going to be made--here are the people you should stay 
away from. No, these aren't people guilty of crimes. These are people 
who have engaged in taking on powerful economic interests that are 
stealing the economic rights of our small inventors.

  As I mentioned earlier, it also eliminates the judicial review that 
we have had since 1836 for our inventors.
  Is there anything that could be more of an attack on the well-being 
of America's inventors? This, as I say, is a consistent pattern that I 
have seen for 25 years, where what we call ``globalists'' who are 
trying to take America's strong patent system and weaken it so that we 
will not have the advantage that we have had throughout the world.
  In the beginning, these people wanted to take fundamental parts of 
our patent system so that patents, even before they would be issued to 
the inventor, that they would be published for the whole world to see. 
That is what these people have been trying to get away with. Year after 
year after year, they whittle away at the patent protection of our 
people because they want a global system that is run by international, 
multinational companies.
  The people running those companies, do you think they are loyal to 
the people of the United States of America? Do you think they have our 
interests in mind as compared to a small inventor who loves the freedom 
and liberty that our country offers and understands that in another 
country, he won't have that same freedom? No, it has been the small 
inventor.
  It has been technological development that has given Americans the 
standard of living, the security, and the freedom that we have enjoyed, 
and now this body, we are having a bill rammed down our throats. It has 
been

[[Page H7393]]

rammed through the system. Why? Because they don't want us to fully 
understand the implications of this bill, H.R. 3309, the Innovation 
Act, which will kill the small American inventors in this country.
  I would ask that our leadership consider postponing this so the 
American people will have a chance to get a hold of their Congressman, 
their Representative, so that we will talk and find out what the real 
effect of H.R. 3309 will have. I ask my colleagues in closing: Do we 
want to be known as the Congress that killed the U.S. patent system 
which has served the American people so well for 225 years?
  I yield back the balance of my time, Mr. Speaker.

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