[Congressional Record Volume 159, Number 170 (Tuesday, December 3, 2013)]
[House]
[Pages H7441-H7445]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE CONGRESS THAT KILLED THE PATENT SYSTEM

  The SPEAKER pro tempore (Mr. Mullin). 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, let me thank my good friend, Mr. 
Gohmert, for that heartfelt expression.
  Yeah, there are problems at whatever area of government we look at. 
There are ways that we can improve it, but there are also problems in 
government that can be used as an excuse, as a cover for a power grab 
by very special interest groups in our country to change the law in the 
name of dealing with a serious problem.
  Then what comes out of it has something to do with the interest of 
that special interest, rather than curing the problem. That is what is 
going on today when we deal, when we hear all of this talk about the 
patent system.
  We must all ask ourselves: Do we want to be known as the Congress 
that killed the U.S. patent system which has served the American people 
well for 225 years?
  Let's note that there are very powerful interests in this country. 
Mr. Gohmert and I have been fighting them on a number of fronts. We 
call them globalists because what they are interested in is making sure 
that our economy and our rules and our rights are based in a global 
system that eventually will be run by the United Nations or whoever.
  We have got multinational corporations trying to break down things 
like the patent law that have been unique to the United States and 
granted the American people many more rights than are granted to the 
people of other countries.
  So, once again, we are talking about reforming the patent system. 
After 20

[[Page H7442]]

years of fighting on these issues, again, we have a salami approach by 
people, a lot of people who don't even believe in the patent system, 
who are trying to change the fundamentals of our system.
  Well, just last year we passed the American Inventors Act, and it 
just went into effect earlier this year. Now we have patent lawyers, 
the courts, and inventors trying to figure out the implications of the 
changes of that last law from last year, and that was one of the most 
sweeping changes to the present American patent system that we ever 
had.
  Why are we rushing into it now before we even know what the results 
are from the patent bill that was passed last year?
  Well, even before we are able to judge the America Invents Act, this 
other patent bill is now being rammed through this House. Let me repeat 
that. It is being rammed through at breakneck speed, not giving the 
people on the outside--there are powerful interest groups that are 
pushing for these changes, because it will permit them, basically it 
will permit the big guys to steal from the little guys.
  Yeah, okay. These big, multinational electronics companies want to 
steal from America's independent inventors. They are ramming their 
changes in the patent system through this House at breakneck speed so 
that people on the outside are not going to be able to notice what is 
going on and how it will impact them.
  Well, the word is getting out. It is spreading out throughout 
America, whether it is our universities, or whether it is people in 
biotech or the pharmaceutical industries or the American Bar 
Association or small inventors throughout the country, people are 
beginning to notice the danger that we are in by this rapid movement of 
legislation through the system.
  I wish I could simply focus on the bad provisions of this new bill, 
as I say, the Innovation Act, H.R. 3309, I call it the Anti-Innovation 
Act. That bill is expected to be on the floor in the next couple of 
days.
  If the bill is bad, okay, the process now being used to get that bill 
through the system is--they are stifling debate. They are having such 
limited time that people aren't able to really go in and see what is 
involved in this bill.
  Remember the last time when we actually looked at, we tried to pass a 
significant piece of legislation before people had really had a chance 
to examine it and look at it?
  Well, having this bill rammed down our throats at such breakneck 
speed is even worse than the bill itself. In the one Judiciary 
Committee hearing--they only had one on this particular bill--witness 
after witness strongly recommended moving slowly, and warned of 
unintended consequences.
  While it takes a few minutes to consider each provision of this bill, 
it takes only a few minutes to see that they are aimed--give them the 
benefit of the doubt that they are single, that there is a single thorn 
in the side of the mega-electronics companies that are behind this 
bill, and that is that you have small inventors who will come up and 
say you have violated my patent, long after they have just ignored the 
patent and went and used it anyway without the inventor's permission.

  Well, that one thorn in the side of these mega-electronic companies, 
to get rid of that, they are willing to create much more pain in other 
industries, in our educational institutions, in researchers, especially 
pain for America's individual, yes, independent inventors.
  In the rush to get H.R. 3309 on to the floor so quickly, there has 
not been a single full day, legislative day, that is, between the time 
this legislation passed the Judiciary Committee, which means that when 
it passes the Judiciary Committee, that is when it is available to 
House Members to consider and to submit amendments to the Rules 
Committee.
  Well, there has not been one legislative day. This happened right 
before the vacation, right before we went off for Thanksgiving and, 
thus, we didn't have time, and everybody is off for Thanksgiving.
  When are we going to get our amendments put together?
  We were rushed into our amendments. I came down here 15 minutes ago 
because I was up in the Rules Committee, finally, where we put together 
some amendments to try to deal with the dark side of patent law and 
this patent bill that is going through.
  So it is, as I say, going to create a lot more, a lot more pain for 
other industries, because we won't have had a chance to look at it and 
amend it, than it will do good for the electronics industry.
  By the way, the electronics industry should be treating the small 
inventor fairly, and if someone has a legitimate patent and they have 
ignored it, they should pay that person damages because that person 
owns what he created.
  Instead, what we have had is a society where these mega-companies are 
faced by an inventor and they just say, well, sue us; go sue me and see 
what you think.
  What this bill does, of course, is make it much more difficult for 
the small inventor, the small inventor, to be able to sue because it 
creates much more, a much heavier burden on the small inventor.
  So it seems that we have, if we have to pass this bill with such a 
rapid bill, we are going to have to pass the bill before we realize 
everything that is in the bill.
  Well, that shouldn't be happening again, after the last debacle of 
ObamaCare, which now has turned into a disaster for our country. That 
is what is going to happen to the patent system, and the confusion that 
is going to happen when we rush in to passing legislation.
  I am calling on my friends and colleagues who haven't had time to 
fully understand the implications of this legislation to join me in 
demanding a postponement, just a postponement of the vote to pass the 
bill until after this holiday season is over. That will give us time to 
consult with our own constituents, with experts, with inventors, and 
other people from other industries, rather than just these big 
electronics Google industry gang.
  So we need to know what the real implications of the legislation are. 
So we need to what?
  Postpone the vote. If you can't postpone the vote, kill this bill and 
start writing a new one and give everybody a chance to have their say, 
their input into the bill.
  We are told that this bill is aimed at the threat of so-called patent 
trolls. You will hear that over and over again. These so-called 
villainous trolls are patent holders. That is what they are. A patent 
troll is someone who owns a patent, or a company that represents patent 
holders. They are engaged in defending their rights against 
infringement of those patents they own.
  There are all of these implications that we are talking about invalid 
patents. No; we are talking about legitimate rights that were granted 
to the American people to own a patent that is in our Constitution, and 
these are legitimate patents.
  But there is this aura, oh, the innuendo that these are abusive 
patents. What is an abusive patent?
  It is when somebody like Google is using your patent and refusing to 
acknowledge that it is yours, and you have got to take them to court, 
and you are a little guy, and they will do anything to stop the little 
guys from taking them to court and winning.
  These patents that we are talking about are just as valid as any 
other patent that is granted by the Patent Office, and these huge 
corporations--we are talking about people who have, quite often, 
intentionally infringed on a patent.
  What that means is they have intentionally stolen the patent from a 
little guy who they don't think has the power, financially and 
otherwise, to enforce his patents through the court.
  These huge infringers would have us believe that the patents that we 
are talking about are questionable, they are invalid or unworthy of 
being patented. Well, that is not the case. That is not what this bill 
does.
  What this bill does is make it more difficult for honest and 
forthright people who are patent owners or independent inventors to 
enforce their constitutional rights of ownership.
  The patents that are being targeted by the multinational electronics 
firms are legitimate, by and large, but they were the projects, these 
patents were the projects of small inventors who don't have the means 
to defend themselves.

[[Page H7443]]

  Oh, but what makes these vilified patents different, by the way, than 
the good patents that are owned by these large corporations themselves?
  Well, it is the so-called patent troll again. That happens to be a 
lawyer--and this is defined. A patent troll is a lawyer who takes on a 
case specifically to defend the little guy from theft. But the lawyer 
didn't invent it; he is only there for the money.
  How shocking that we have lawyers who are defending clients only 
because the lawyer is going to make money on it. That is how our system 
works. That is what happens. You get lawyers to argue your case before 
a judge and get a fair hearing.
  There is nothing wrong with having a lawyer decide that he is going 
to get involved and help a guy for a percentage of what the case 
results in and what the decision will be.

                              {time}  1730

  Being out for profit, even though the person did not invent the 
technology, is not in any way something that is disgraceful or bad. In 
fact, these lawyers have become a champion of little guys who don't 
have the resources to enforce their own patent, or they could be an 
individual or a company, or they could buy the rights from these small 
inventors.
  And let me just say if the inventor is being cheated out of her or 
his rightful compensation, it is a good thing that there is a lawyer 
there or anyone else there who wants to invest in that to make sure 
that that inventor gets just and rightful compensation.
  Now, I happen to have been very concerned about these changes in the 
patent law, and I have had meetings over the last couple of months; and 
I happen to have had a meeting with a very prominent businessman who 
was in the meeting when the term ``patent troll'' was originated. 
Surprise, surprise that the term patent troll was thought of by a group 
of business executives of how they could demonize those people who were 
suing their companies for infringement on the patent rights.
  How were they going to do that? They knew they couldn't demonize the 
independent inventor, the small inventor. Americans think too highly of 
that. So they decided they would demonize the lawyers and try to divert 
the attention of the American people away from the issues at hand to 
try to undermine the ability of the little guy to make his case before 
the courts and thus demonize the lawyer who was representing him or the 
lawyer that had helped by taking on the case.
  So that discussion took place. How cynical can you be. And the person 
who I was talking to said, And I suggested that we use the term 
``patent pirate,'' but that wasn't sinister enough. So every time you 
hear the term patent troll, remember, it is a way to try to get you to 
think of a person that they are vilifying rather than the actual issues 
at hand. And the issues at hand are talking about theft by the big guys 
of the little guys, of the little guys' patents who can't afford to 
defend their own constitutional patent rights.
  Now, I have spoken with independent inventors, conservative political 
organizations, the American Bar Association, industry groups like PhRMA 
and biotech. We have major universities today, an organization 
representing 2,000 universities, that have research projects within 
those universities, all of whom affirmed that H.R. 3309, the so-called 
Innovation Act, basically is a bad bill for them.
  They understand that what we have got is big multinational, again, 
electronics companies behind us. But it may help those companies. I 
have no doubt about that. It will help shield them when they infringe 
on somebody's intellectual property, but it will hurt the rest of these 
people and the economy. Whether it is other industries or whether it is 
our educational institutions, I suggest that Members of Congress go 
back to their districts, give them a chance to go back to their 
districts, talk to their small inventors. Talk to the small inventors 
in your districts to see what they think about this poison patent 
legislation. See what the educators think about it. See about what the 
universities think. Think about people in major industries that employ 
hundreds of thousands of people like biotech and pharmaceuticals. Think 
about those things. Talk to those people, and you will find that there 
is a very limited number of people who are being helped by this bill, 
but a tremendous swath across our economy of people who are being hurt 
by it, not to mention the small independent inventors, the source of 
our competitiveness, the source that has made America secure, made the 
American people prosperous because now we can outcompete others because 
we are technologically superior.
  No, the patent system has been too valuable for us to let one 
industry ram that through Congress with a flood of campaign donations 
that have been going on here for the last several years.
  Proponents of this legislation, as I say, have demonized the patent 
lawyers just to draw attention away from the fact that these large 
companies have stolen someone else's patent-protected technology. So it 
is the big guys versus the little guys. And guess what, in order to 
beat the little guys, the big guys are now changing the rules of the 
game. That will hurt all kinds of people throughout the American 
economy.
  H.R. 3309 should be called the Anti-Innovation Act. It is an 
aggressive attack on the ability of inventors to defend their ownership 
right to technology that they have invented. This is not about 
frivolous lawsuits, although you will hear that all the time--frivolous 
lawsuits and trolls. This is about all lawsuits. This is about all 
inventors, no matter how absolutely pure their motives are and their 
rights are clear. No, this will limit each and every independent 
inventor. This entire bill, every provision diminishes the ability of 
the small inventor to defend his or her creation. It is a cynical cover 
for creating for the big guys 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 and 
with great care in making such changes to the patent law. This 
legislation is too broad, its implications too unclear, and its effects 
unknowable. That is what witnesses and experts have indicated. That is 
what we hear from all around the United States from very significant 
players in our economy.
  But that is not what is happening here in Congress. In Congress, this 
bill is being railroaded into passing; and this is right on top of the 
passage of last year's legislation, as I say.
  So what is going on here? This is a heavy-handed attempt by mega-
multinational corporations to diminish the viability of America's 
patent system. This has been going on by these very same multinational 
corporations to try to diminish patent protection in America. This has 
been going on for 25 years, and I have seen it over and over again. We 
have to fight this back.
  They want to harmonize America's patent system with Japan and Europe, 
who have weak systems that do not protect the individual inventor. For 
example, they tried to foist off--we defeated this one--they have been 
trying to make it so if someone applies for a patent, after 18 months--
this is what they do in Japan and in Europe--after 18 months, the 
patent application would be published, even though the patent hasn't 
been granted. I call that the Steal American Technologies Act. The same 
gang who tried to foist that on us years ago--every year they come up 
with a new change like that to diminish patent protection for the 
American people. That would have been the Steal American Technologies 
Act. Anybody who could have advocated that, it was so blatant that we 
were able to defeat it outright; and now we face this challenge.

  According to the sponsors of H.R. 3309, this is, again, an attempt to 
combat patent trolls, even though there is a study that was mandated in 
that last bill that shows that Congress--this much heralded problem of 
patent trolls really isn't a major driver of lawsuits. And what has 
caused a new surge in lawsuits, interestingly enough, is that new 
legislation that was passed last year, while most of the provisions of 
the legislation will make getting involved in lawsuits more 
complicated, more costly, and more challenging to bring a lawsuit for a 
patent infringement.
  What does that mean? That means if the little guy needs to fight for 
his rights in court, we are making it more complicated, costly, and 
more challenging for the little guy. Of course the big guys, they have 
got a whole stable of lawyers working for them.

[[Page H7444]]

  And there you go. These people would restrict lawsuits that are 
totally legitimate in order to control a very few number of lawsuits 
that are manipulative of the system and thus are abusive. Rather than 
making it simpler, cheaper, and easier to defend against baseless 
accusations and thus reduce spurious lawsuits by strengthening the good 
guys, this bill is aimed at weakening the small inventors who are the 
ultimate good guys.
  In addition, under the claim of ``technical correction,'' this 
legislation proposes the removal of the patent system's only judicial 
review process.
  Listen to this: since 1836, every inventor has known that if they are 
mistreated by the government officials who run the Patent Office, if 
the decisions on their patents are made on criteria that is not legally 
established, they can go to court, and they can challenge that. In 
fact, as late as last year, the Supreme Court in Kappos v. Hyatt 
reaffirmed the importance of this judicial review. This bill takes that 
right away from the individual inventor.
  The independent inventor who has had this right since 1836 now can't 
go to the court. He can't have his day in court if he has been treated 
illegally or wrongly. That is what is in this bill, along with a lot of 
other things. That is why the American Bar Association is opposed to 
this bill.
  I would like to quote my colleague from Texas, Mr. Lamar Smith, 
former chairman of the Judiciary Committee and primary author of the 
America Invents Act, which was the last bill. Speaking of the new 
environmental regulations at the Science Committee just a few weeks 
ago, he said:

       Our Founders 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.

  Let me note that the gentleman from Texas has underscored the 
importance of having a judicial review of the actions of government 
employees, especially those in regulatory agencies. This principle 
applies just as certainly to patent review as it does to environmental 
regulations that the gentleman was talking about.
  Now, Patent Office officials have requested that the judicial review 
be done away with. They want to do away with it, and that is why it is 
in the bill because they can say it is too burdensome for them to 
defend what they did as part of their job on the rare occasions when 
they are challenged in court. But it is just too burdensome for them.
  Never mind that anyone who brings the claim to court is required to 
cover the costs. If someone is challenging them, they are going to have 
to cover their own costs. Well, the Patent Office just wants to strip 
away that right because Americans don't really deserve to have a day in 
court to challenge what government officials do because it is just too 
inconvenient for the bureaucracy.
  The legislation we expect before the House this week is consistent 
with a decades-long war raged against America's independent inventors, 
which I have been talking about, and just this sort of arrogant 
attitude of the independent inventor is being taken for granted.
  Let me tell you what the independent inventors have done. They have 
made our country secure. They have made our country competitive. They 
have made the American people--our industry is able to pay our people 
good wages because we are more competitive with high technology and 
good technology. Technology has helped save our country, and it created 
the American way of life. This bill would stifle, would kill American 
technological genius.
  The provisions of the Innovation Act will impact every inventor in a 
negative way in America. The Innovation Act will create more paperwork 
when an inventor files for infringement claim, for example, which means 
somebody stealing and stuff--this will increase the cost to defend 
those rights and the potential, of course, if you have much more 
paperwork, then you give the court the ability to dismiss the case on 
technical requirements: well, you didn't fill out this technicality; 
you missed that in the law. So it is making it more costly and much 
more technically complicated.
  The Innovation Act will impose rules on the Judicial Conference, 
meaning on our judges, which run counter to almost 80 years of 
established rulemaking process, whereby the courts have been 
establishing their own rules of procedure. Again, this law will dictate 
how the judges will make their decisions, and it is so definitive that 
it will complicate the process and could end up with less justice, not 
more, because the judges will feel compelled not to use their common 
sense.
  If we want to get rid of the burden of litigation that is nonsense, 
you know, frivolous litigation, let's give the judges some more 
discretion in determining is this really what is meant to be protected 
by our law instead of having to dictate the very basis for every one of 
their decisions.
  The Innovation Act will switch us to a ``loser pays'' system so the 
potential financial downside for a patent holder, meaning the little 
guy, increases dramatically. Thus we have a situation where the big 
guy, again, what does he care if he has to pay the legal fees for a 
little guy filing against him? But if the little guy loses and then has 
to pay for the legal fees of the big guy, massive, massive expense 
which will bankrupt him for life.
  And the Innovation Act goes even further. It brings other people into 
that court and into that case.

                              {time}  1745

  In fact, people who have an interest in that patent, such as 
investing in the company or licensing the patent, can be brought into 
that ``loser pays'' court action and thus they would have to then pay 
the expenses for this huge corporation if that little guy loses.
  Do you know what that means? Nobody is going to stand up for the 
little guy. They can't afford to take that risk. These big companies 
will squash them like bugs because they can absorb that kind of cost.
  This is the disincentive for people to support the efforts of small 
inventors whose rights are being denied. Now they will be denied the 
support of third parties. They can call them trolls if they want. They 
can say that we are denying them trolls. They are denying somebody else 
coming in and helping the little guy who can't afford to make sure that 
these big guys are not stealing his invention and giving him no 
compensation.
  The Innovation Act will create a new requirement that patent holders 
must, once filing a claim for infringement, provide information about 
all the parties. That means the infringer--these big guys--are going to 
get a list of all of their enemies. This is not consistent with 
American tradition where we believe that people don't have to put 
themselves at risk in order to help a good cause. This means the 
elimination of privacy in business dealings. The little guy is totally 
exposed, as his friends and suppliers will be totally exposed as well.
  The Innovation Act, once this requirement has been invoked, will 
force the patent holder to maintain a new bureaucratic reporting 
requirement and a fee that goes with that.
  Well, what does that mean? That means the little guy now has to keep 
books that he doesn't have to keep. His life is much more complicated 
because he has filed an infringement case. These are minor 
inconveniences to multinational corporations. They have bookkeepers. 
They have lawyers. This means the little guy is going to be smashed and 
is going to be smothered under the new requirements of this act.
  The Innovation Act will enable large multinational corporations to 
create nested ``shell companies'' as customers, which have few assets 
but can infringe on patents for a decade or more, while an inventor, of 
course, cannot.
  Let me just close, Mr. Speaker, by suggesting that we have the 
support of a multitude of interest groups in our country--educators, 
businesses, large corporations, and people in our country--who are 
opposed to this bill, which I will include in the Record, and I yield 
back the balance of my time.

                      Who is opposed to H.R. 3309?

        Universities: Association of American Universities; 
     American Council on Education; Association of American 
     Medical Colleges; Association of Public and Land-grant 
     Universities; Association of University Technology Managers; 
     Council on Government Relations.

[[Page H7445]]

       Patent Experts, Small Inventors, and Legal experts: Former 
     directors of the U.S. patent office; Patent Office 
     Professional Association; American Intellectual Property Law 
     Association (AIPLA); Intellectual Property Owners Association 
     (IPO); National Association of Patent Practitioners (NAPP); 
     Judicial Conference, Committee on Rules of Practice and 
     Procedure; American Bar Association (ABA).
       Investors, Professional Organizations, and Business Groups: 
     National Venture Capital Association; Biotechnology Industry 
     Organization (BIO); Pharmaceutical Research and Manufacturers 
     of America (PhRMA); Innovation Alliance; Coalition for 21st 
     Century Patent Reform; Institute of Electrical and 
     Electronics Engineers (IEEE); U.S. Business & Industry 
     Council; Entrepreneurs for Growth.
        Other Organizations: Eagle Forum; Club for Growth; 
     American Conservative Union; Campaign for Liberty; The 
     Weyrich Lunch; CapStand Council for Policy and Ethics.

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