[Congressional Record Volume 159, Number 172 (Thursday, December 5, 2013)]
[Extensions of Remarks]
[Page E1793]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 3309, INNOVATION ACT; AND PROVIDING 
 FOR CONSIDERATION OF H.R. 1105, SMALL BUSINESS CAPITAL ACCESS AND JOB 
                            PRESERVATION ACT

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON LEE

                                of texas

                    in the house of representatives

                      Wednesday, December 4, 2013

  Ms. JACKSON LEE. Mr. Speaker, as a senior member of the Judiciary 
Committee, I rise to speak on the rule governing debate for H.R. 3309, 
and about innovation in America--the great job creator. H.R. 3309 is a 
bill before its time as the America Invents Act was signed into law 
barely two years ago. Many of the major provisions of this landmark 
legislation which many on the Judiciary Committee and in this body 
voted for have not even been put into practice.
  It is well documented that our innovation ecosystem--founded on 
patents--drives economic growth and job creation in the United States. 
From the hustle and bustle of downtown Houston, Silicon Valley, 
Chicago, New York, and even here in Washington, DC, Americans want to 
keep our cherished system as strong as possible. For the future of our 
economy, we cannot risk jeopardizing it. And while the AIA was 
unquestionably pro-innovator legislation, its post-grant challenge 
provisions also unquestionably shifted the balance of rights toward 
implementers and away from patent holders. The question is--just how 
much has that balance shifted?
  Mr. Speaker, H.R. 3309 contains a provision that concerns me greatly. 
Section 3 of the bill directs a court to award attorney fees and costs 
to prevailing party in patent infringement cases.
  This provision, commonly called ``Loser Pays,'' is prevalent in 
England but has heretofore been unknown to the American legal system. 
And for good reason. Loser pays laws ensure that only the wealthiest 
members of society or large corporations can afford to undertake a 
civil action and also unnecessarily punishes individuals with serious 
and meritorious claims for seeking access to justice. Loser pays 
policies fail to recognize that a person or a business can have a 
legally legitimate dispute regarding fact and law, and yet still 
ultimately lose the case. Loser pays policy sets a dangerous precedent 
and may prevent individuals from pursuing even the most meritorious 
civil liability claims.
  If ``loser pays'' is implemented it could be a roadblock for people 
pursuing whistleblower, consumer mortgage, employment discrimination 
and other civil rights cases. The real losers under a ``loser pays'' 
system in patent cases is the individual inventor and small businesses 
seeking to vindicate their constitutional right to the exclusive use of 
the discoveries and inventions.
  Mr. Speaker, we should proceed with caution and engage in a 
deliberative process that takes the time to reh out and listen to all 
stakeholders.
  Many small innovators--today's Priceline.coms, Yahoo's, Google's, 
Facebook's, Eli Lilly's, Twitter's, akin to yesteryears Edisons--have 
not had time to make their views heard.
  I thank the Rules Committee for making in my amendment that modifies 
the Manager's Amendment to ensure that more small businesses are 
protected by providing that the customer stay exception applies to all 
small businesses with annual revenues under $25 million.
  A number of the provisions in this bill may be well-intentioned, but 
they have undesirable consequences for the patent system as a whole. 
They have the potential to undermine the enforceability of all patent 
rights, no matter how valuable the patent, and thus potentially 
incentivize infringement.
  That is why I offered three amendments in the Judiciary Committee and 
three in the Rules Committee yesterday.
  My first amendment would have modified section 9(a) of the bill to 
preserve the right of an applicant to file a civil action to obtain a 
patent in district court ``upon a showing of good cause or where 
justice so requires.'' I offered this amendment in response to 
information I received during my discussion with stakeholders, 
including the Chief Judge of the Federal Circuit, which hears all 
patent claims.
  I thank the Committee also for making in my amendment which requires 
the PTO Director, in consultation with other relevant agencies, and 
interested parties, to conduct a study to examine the economic impact 
of the litigation reforms contained in the bill (sections 3, 4, and 5 
of this Act) on the ability of individuals and small businesses owned 
by women, veterans, and minorities to assert, secure, and vindicate the 
constitutionally guaranteed exclusive right to inventions and 
discoveries by such individuals and small business. This amendment 
supplements and improves the bill, which requires PTO to conduct 4 
studies and submit reports to Congress. The required studies are:
  I also joined with Ranking Member Conyers of the Judiciary Committee 
on an amendment that strikes Section 3(b) which requires that courts 
reward attorney's fees and expenses to the prevailing party. I urge 
Members to support this amendment as well.
  Mr. Speaker, innovation is the engine that drives our economy. Let us 
not act rashly in passing legislation that will harm the ability or 
lessen the incentive of innovators to make the discoveries and create 
the products that will power our economy in the 21st century.

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