[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
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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.
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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.
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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.
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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.
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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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