[Congressional Record (Bound Edition), Volume 153 (2007), Part 17]
[House]
[Pages 23904-23911]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  0915
  PROVIDING FOR CONSIDERATION OF H.R. 1908, PATENT REFORM ACT OF 2007

  Mr. WELCH of Vermont. Mr. Speaker, by direction of the Committee on 
Rules, I call up House Resolution 636 and ask for its immediate 
consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 636

       Resolved,  That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 2(b) of rule 
     XVIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 1908) to amend title 35, United States Code, 
     to provide for patent reform. The first reading of the bill 
     shall be dispensed with. All points of order against 
     consideration of the bill are waived except those arising 
     under clause 9 or 10 of rule XXI. General debate shall be 
     confined to the bill and shall not exceed 1 hour equally 
     divided and controlled by the chairman and ranking minority 
     member of the Committee on the Judiciary. After general 
     debate the bill shall be considered for amendment under the 
     5-minute rule. It shall be in order to consider as an 
     original bill for the purpose of amendment under the 5-minute 
     rule the amendment in the nature of a substitute recommended 
     by the Committee on the Judiciary now printed in the bill. 
     The committee amendment in the nature of a substitute shall 
     be considered as read. All points of order against the 
     committee amendment in the nature of a substitute are waived 
     except

[[Page 23905]]

     those arising under clause 10 of rule XXI. Notwithstanding 
     clause 11 of rule XVIII, no amendment to the committee 
     amendment in the nature of a substitute shall be in order 
     except those printed in the report of the Committee on Rules 
     accompanying this resolution. Each such amendment may be 
     offered only in the order printed in the report, may be 
     offered only by a Member designated in the report, shall be 
     considered as read, shall be debatable for the time specified 
     in the report equally divided and controlled by the proponent 
     and an opponent, shall not be subject to amendment, and shall 
     not be subject to a demand for division of the question in 
     the House or in the Committee of the Whole. All points of 
     order against such amendments are waived except those arising 
     under clause 9 or 10 of rule XXI. At the conclusion of 
     consideration of the bill for amendment the Committee shall 
     rise and report the bill to the House with such amendments as 
     may have been adopted. Any Member may demand a separate vote 
     in the House on any amendment adopted in the Committee of the 
     Whole to the bill or to the committee amendment in the nature 
     of a substitute. The previous question shall be considered as 
     ordered on the bill and amendments thereto to final passage 
     without intervening motion except 1 motion to recommit with 
     or without instructions.
       Sec. 2. During consideration in the House of H.R. 1908 
     pursuant to this resolution, notwithstanding the operation of 
     the previous question, the Chair may postpone further 
     consideration of the bill to such time as may be designated 
     by the Speaker.

  The SPEAKER pro tempore. The gentleman from Vermont is recognized for 
1 hour.
  Mr. WELCH of Vermont. Mr. Speaker, for the purpose of debate only, I 
yield the customary 30 minutes to the gentleman from Florida (Mr. 
Lincoln Diaz-Balart). All time yielded during consideration of the rule 
is for debate only.


                             General Leave

  Mr. WELCH of Vermont. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks and include extraneous material on H. Res. 636.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Vermont?
  There was no objection.
  Mr. WELCH of Vermont. Mr. Speaker, I yield myself such time as I may 
consume.
  H. Res. 636 provides for consideration of H.R. 1908, the Patent 
Reform Act of 2007, under a structured rule. The rule provides 1 hour 
of debate equally divided and controlled by the chairman and ranking 
minority member of the Judiciary Committee. The rule makes in order and 
provides appropriate waivers for 5 amendments: A bipartisan manager's 
amendment, 3 Republican amendments, and one Democratic amendment.
  Mr. Speaker, H.R. 1908 is a necessary bill and landmark legislation. 
The last time that our patent laws had been substantially updated was 
1952, over a half century ago. Much, obviously, has changed in the 
United States and the world in those 50 years, and that is quite an 
understatement. Unfortunately, the U.S. patent law has failed to keep 
up.
  Before I discuss the merits of the underlying bill, I must commend 
Chairman Conyers, Subcommittee Chairman Berman and Ranking Member Mr. 
Smith for their tireless work on this bill. It has not been easy to 
make the reforms that are so intricate and complex in such a 
complicated system, but these gentlemen worked hard with their 
committee and did so admirably, bringing to us a patent reform bill 
that is going to move America forward.
  I would also be remiss if I did not acknowledge the tremendous 
contribution of Senator Leahy, who happens to be someone I am 
particularly proud as he is the senior leader of our delegation here in 
Congress. As chairman of the Senate Judiciary Committee, he spent years 
working on the patent system and has become a driving force behind 
getting this legislation to the floor.
  All of us, I believe, in this House see this bill as major progress 
in reflecting a commitment to the protection and support of the 
Nation's intellectual property. This system was built to sustain and 
protect the nuts and bolts of the American economy, our ideas and 
innovations.
  The legislation does enjoy very strong bipartisan support. Both 
Ranking Member Smith and subcommittee Ranking Member Coble, who have 
done great and hard work, are cosponsors. It is the product of 4 years 
of hearings, debates, negotiations, and compromises. Since 2001, there 
have been over 21 hearings on patent issues at the subcommittee level, 
and the subcommittee chairman and ranking member sought input from, 
among others, the Federal Trade Commission, U.S. Solicitor General, 
National Academy of Sciences, and businesses ranging from high tech and 
biotech companies to traditional manufacturing and pharmaceutical 
companies, as well as from our university community and from labor.
  H.R. 1908 reforms our outdated patent system, which currently 
encourages patent speculation, increases litigation, often harms small 
inventors and impedes innovation.
  First, the legislation moves the United States into a pure first-to-
file patent system. Right now the United States is literally the only 
major industrialized country to retain the first-to-invent system. This 
change from first-to-invent to first-to-file will inject clarity and 
certainty into the process and relieve the U.S. system of some 
extremely burdensome requirements such as protracted interference 
proceedings often costing up to a million dollars to determine which of 
many applicants deserves a patent and detailed record keeping. Both of 
these often disadvantage smaller inventors who might not have the 
resources to initiate such proceedings.
  This change to a first-to-file system puts the U.S. in sync with 
every other industrialized country. Greater harmonization is obviously 
going to make it easier for U.S. inventors to secure patent rights in 
other countries as international patent protection becomes increasingly 
important to their ability and the ability of United States inventors 
to compete on a level playing field.
  Next, this legislation makes important improvements to the patent 
system by which patents can be reexamined. By providing for 
reexamination of issued patents, H.R. 1908 eliminates the ability to 
intentionally ``game the system'' by speculating on the issuance of 
very poor-quality patents, nothing added to the intellectual capital of 
this country, but used as a device to increase private gain. This 
provides a streamlined alternative to costly patent litigation. This 
ability to have a quality check on patents that have already been 
issued is crucial to the integrity of the patent system as patents of 
questionable value can stifle innovation.
  Companies around the country are much like some companies that 
operate in Vermont, including IBM, which has been a leader in the 
number of issued patents for the past 14 years in our State. They were 
awarded in 10 years 3,621 patents in the U.S. in 2006; 360 of those, 
fully 10 percent, came from the IBM office in Essex Junction, Vermont. 
That is 10 percent of their total patents from Vermont alone. They have 
been in business for decades, and improving the quality and security of 
the patent system is extraordinarily important to them, and obviously 
to other individuals and companies large and small around our country.
  This bill also allows third parties to submit documents relevant to 
the examination of a patent application. This provision addresses the 
growing concern that patents have been issued on inventions that were 
publicly known and in prior use to the filing of the application. This 
is particularly important in the newer areas of technology in fields 
that do not yet have a fully well-developed tradition of publishing 
findings such as computer systems and software and business methods.
  Finally, this bill makes some crucial improvements to the calculation 
and apportionment of damages. H.R. 1908 allows for the reasonable 
royalty calculations that more accurately reflect the value of any 
invention that is being infringed. Our patent system is far too 
important to be behind the times. Quality patents must continue to be 
issued. They must continue to be protected for those who have 
legitimately created a new invention.
  This legislation is a huge step in modernizing this system for 
decades of

[[Page 23906]]

American innovation to come. I urge my colleagues to support this rule 
and the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I would like to 
thank the gentleman from Vermont (Mr. Welch) for the time, and I yield 
myself such time as I may consume.
  When the Founders of this great Republic drafted our Constitution, 
they had the revolutionary vision that brought us this great and 
vibrant representative democracy that has lasted over 200 years. 
Included in the landmark Constitution that has served our Nation so 
marvelously is a provision that gives us, the Congress, 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 receives little 
attention; but over the last two centuries it has played a critical 
part in the growth of the economy and the power, the wealth of the 
United States. Today, American intellectual property is worth over $5 
trillion, more than that of any other country in the world. It also 
comprises more than half of all U.S. exports, driving almost half of 
the Nation's economic growth.
  As Mr. Welch so eloquently stated, the last time Congress overhauled 
the patent system was over 50 years ago. Since then the fundamental 
underpinnings of our economy have undergone dramatic changes. But the 
patent system has remained generally static and now faces some 
difficulty in meeting the needs of our dynamic economy. So we must 
reform our patent system in order to meet the needs of our economy here 
and in the global marketplace, but we must do so in a way that 
protects, that continues to protect the intellectual property rights of 
all inventors and industries.
  Today we are debating changing the system that President Abraham 
Lincoln called one of the three most important developments in world 
history. Yet on such a truly significant piece of legislation, 
legislation that will affect our economy for decades, the Rules 
Committee majority has severely restricted the input of Members of this 
House, the input that they can have on this extraordinarily important 
piece of legislation.
  The rule brought forth by the majority allows only five amendments, 
five of the 14 amendments submitted. I submitted to you, Mr. Speaker, 
that is no way for the House to debate this important legislation. The 
majority should bring this bill to the floor with the opportunity for 
all Members to present their ideas, their proposals, their amendments, 
for the consideration of all of our colleagues. The majority should 
bring this legislation to the floor under an open rule.
  I remind our friends of one of the central tenets of their campaign 
last fall. They said they would run the Congress in a more open and 
bipartisan manner. In fact, on December 6, 2006, the distinguished 
Speaker, Congresswoman Pelosi, reiterated her campaign promise. She 
said: ``We promised to the American people that we would have the most 
honest and open government, and we will.''

                              {time}  0930

  Here we are again with a restrictive rule, even on such a significant 
piece of legislation as the reform of our patent system.
  The majority, Mr. Speaker, unfortunately is not living up to its 
promises, and it is the duty of the minority to remind the majority of 
when the majority falls short of the majority's promises.
  It was quite clear from the testimony at the Rules Committee 
yesterday, very interesting testimony, very enlightening. It's been 
years in the making this legislation. There are Members of our Congress 
that have put a tremendous amount of effort and study and time into 
this critically important issue.
  It was evident at the Rules Committee that this bill was drafted in 
an open manner, in a bipartisan manner. Why not thus continue the 
bipartisanship that has forged this important piece of legislation, why 
not continue that bipartisanship here on the floor today with an open 
rule?
  Notwithstanding how Members may feel about the underlying bill, Mr. 
Speaker, I would urge all of our colleagues to vote against this rule, 
vote against this rule so that we can have a full and open debate on 
this important piece of legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. WELCH of Vermont. Mr. Speaker, I yield such time as he may 
consume to the gentleman from California (Mr. Berman), chairman of the 
Intellectual Property Subcommittee.
  Mr. BERMAN. Mr. Speaker, I thank my friend from Vermont for yielding 
me the time and for his really very complete discussion and 
understanding of the legislation which is now at stake, and I rise in 
strong support of this bill and particularly the rule.
  I might point out in context of the rule that, as the gentleman from 
Florida suggested, 14 amendments were offered. A number of those 
amendments, five of them, were made in order, and a number of the other 
amendments were worked out and are part of the manager's amendment. So 
many of the issues raised in the context of openness are continuing up 
to this point.
  This has been both a bipartisan process, and I might suggest with 
respect to the people who are supporting the product of this bipartisan 
process, the rule is being supported on a bipartisan basis.
  When functioning properly, the patent system encourages and enables 
inventors to push the boundaries of knowledge and possibility. I 
support strong, robust protection for quality patents. However, when 
the system functions improperly, such as allowing an overly broad or 
obvious patent, the patent systems can stifle innovation and harm 
America's competitiveness in the global economy.
  Such patents cover arguably obvious inventions. An example is 
crustless peanut butter and jelly sandwiches for which a patent was 
obtained. However, the much more insidious and troubling kinds of poor 
quality patents are the ones that are granted which impede commerce or 
further invention because they create a patent thicket so wide and so 
dense that an entire industry or segment of our economy becomes 
subservient to a single patent from a single innovator.
  Many groups, agencies and citizens have written volumes on the need 
for reform, the United States Patent and Trademark Office, the Federal 
Trade Commission, the National Academy of Science, the Intellectual 
Property Owners Association, the American Bar Association Intellectual 
Property Division and the American Intellectual Property Association. 
All of the studies concluded that the current system is in need of 
changes if it is to remain viable in the new technology global economy. 
The moment is ripe to move the patent system forward to meet the 
challenges of the 21st century. Serious flaws have to be fixed for our 
system to remain robust now and long into the future.
  As the gentleman from Florida acknowledged in his comments which 
preceded mine, this legislation is the result of a substantial amount 
of work, not just over this Congress but over the past three 
Congresses. We did not undertake this endeavor lightly. This isn't a 
rush to judgment. It isn't a rush to legislate.
  We don't claim that this bill at this point is perfect, but this 
remains only one step in the process. Like all compromises, not 
everyone received everything they wanted, which is honestly just as it 
should be. This legislation favors no industry, no person, organization 
or interest group. It seeks to solve problems that we have identified 
and have been identified for us by outside experts and agencies. The 
legislation does what is best for America and our spirit of 
inventiveness and innovation, and it protects our position within the 
increasingly competitive global marketplace.
  Rick Boucher and I started down this path a long time ago, since that 
time working very closely with the then-chairman of the subcommittee 
and now the ranking member of the Judiciary

[[Page 23907]]

Committee, Lamar Smith; with our subcommittee ranking member and former 
chairman of the subcommittee, Howard Coble. We have held 20 hearings 
over 6 years. We've invited or heard from independent inventors, 
universities, large corporate entities, pharmaceutical companies, high-
tech companies, manufacturers, the financial services industries, 
biotech companies, the U.S. PTO, the ABA, the Intellectual Property 
Organization, judges of district court and at appellate levels, 
economists and consumer groups. All views were heard and considered to 
arrive at a bill that we have before us today, and this is a good bill.
  There will be four more suggestions made for changes to the bill, 
amendments by Mr. Issa, Ms. Jackson-Lee and Mr. Pence. These amendments 
add valuable changes to the bill. I won't go into detail now in 
discussing those amendments, but they address issues raised by small 
inventors and by people who want to make sure that the PTO rulemaking 
authority has adequate oversight by the Congress.
  I urge my colleagues to grant us the rule, to take this important 
piece of legislation and move it forward. And my commitment to everyone 
in this Chamber is to recognize that there are still issues that need 
to be worked on and that we will be working to try and achieve the best 
possible balance without undercutting the need for fundamental reform 
that exists.
  I urge my colleagues to adopt the rule.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, at this time, I 
yield such time as he may consume to the gentleman from California (Mr. 
Dreier), the distinguished ranking member of the Rules Committee.
  Mr. DREIER. Mr. Speaker, I thank my friend for yielding and I would 
like to begin by expressing my appreciation to my friend from Miami for 
his very thoughtful and eloquent statement going back to 1790 and the 
role that patents have played in the very founding of our country.
  I want to say also, as I look around the floor and think about the 
Rules Committee meeting that we had, I see the distinguished gentleman 
from Maine (Mr. Michaud) who was joined by Mr. Manzullo in the Rules 
Committee last night, my good friend from California (Mr. Rohrabacher), 
who was here on the floor.
  What I will say is that there is bipartisan support for this bill, 
Mr. Speaker, as my good friend from California (Mr. Berman) correctly 
said, but there's also bipartisan opposition to this bill, Mr. Speaker, 
and it is for that reason that I believe it is absolutely imperative 
that we do, as Mr. Diaz-Balart has pointed out, have the most open and 
transparent process imaginable in dealing with what is seen as a very 
dull issue. It leads many people to doze off or their eyes to glaze 
over when talking about patent law, but it is a critically important 
issue when we think about the basis of the United States of America and 
property rights and all.
  While I intend to support final passage of the underlying 
legislation, a great deal of concern has, in fact, been raised on a 
number of issues included in this bill, as I said, making it a perfect 
example as to why this fully open and transparent legislative process, 
which unfortunately this restrictive rule denies, is a mistake and 
shouldn't be done.
  The underlying bill deals with a tremendously critical and 
fundamental aspect of our economy. It addresses a significant problem 
but in a way that has raised concerns, and it involves incredibly 
arcane and technical policy. For all of these reasons, we should be 
allowing a full and open debate, and I see my friend Mr. Gohmert here 
who I know has also joined in raising very grave concerns about where 
it is we're going on this issue.
  We should be encouraging a greater flow of information, not cutting 
it off, and unfortunately, this restrictive rule does just that.
  Ensuring both the protection and the quality of patents is absolutely 
essential in our high-tech, knowledge-based 21st century economy. A 
cursory glance at the state of patent litigation is all it takes to see 
that we haven't gotten it quite right. Patent trolls acting maliciously 
and bewildered juries facing impossibly technical cases have wreaked a 
great deal of legal havoc on many of our Nation's great entrepreneurs.
  The result has been to stifle innovation, the lifeblood of our 
economy. We've seen some of the worst cases eventually reversed on 
appeal, but many others have not been. There's no denying that there is 
great need for reform in our patent law system.
  However, the underlying bill before us today is not perfect. Real 
concerns have been raised by a number of innovators and research 
institutions, many of whom are critical, in this effort, from my State 
of California, but critical to our economy and our place as one of the 
world's greatest fonts of innovation and entrepreneurship.
  We have to be very careful that as we address one problem we don't 
create another. We have to be very careful that we don't pick winners 
and losers in our patent system, but that we protect and uphold 
intellectual property of all kinds.
  The creators of computer hardware, the developers of revolutionary 
medical treatments, for example, use patents in very different ways. A 
piece of hardware may include hundreds of patents, some of which will 
be obsolete practically before they hit the shelves.
  On the other hand, a biomedical firm may spend $1 billion over a 
decade developing a single product using a single patent. Now, Mr. 
Speaker, these two types of innovators use patents in very different 
ways, but what they have in common is that intellectual property and 
innovation are at the very heart of their work, and they both 
contribute significantly to our economy and to our rising standard of 
living.
  We must ensure that our patent system protects both kinds of 
innovation. While I strongly support the need to move this process 
forward, these are real concerns that must be fully aired and openly 
debated. I find it troubling that unlike previous legislation dealing 
with the issue of patent reform, this bill does not enjoy broad-based 
support among all types of intellectual property creators. Because 
consensus was not reached in the committee process, it is all the more 
important that our floor debate be conducted in an open and transparent 
way.
  Yesterday in the Rules Committee, as my friend from Miami said, I 
proposed that we report out an open rule so that we could, in fact, 
have a full debate on these issues. Unfortunately, on a party-line 
vote, that proposal was denied.
  We also heard, as I mentioned, from our colleagues, Mr. Manzullo and 
Mr. Michaud, who were requesting at least two hours of general debate, 
divided not just between Republicans and Democrats on the Judiciary 
Committee, but between supporters and opponents of this bill. Again, as 
I said, it is bipartisan, the opposition, as well as bipartisan, the 
support, for the bill. That request unfortunately was also denied.
  Absent a meaningful debate today, these concerns will have to be 
raised in the Senate and in the Conference Committee. It's unfortunate 
that our Democratic majority has so little institutional pride that 
they continuously deny this body an open debate and cede the hard work 
to another time and another place.
  That is why I'm encouraging my colleagues to oppose this restrictive 
rule. We shouldn't be running away from a fair and honest debate of 
these tough issues. The underlying bill and the issues it addresses are 
too important for us to be shirking our responsibilities.
  So, Mr. Speaker, I urge my colleagues to reject this rule, and let's 
have a real debate on this very critical matter. And I, again, thank my 
friend for yielding.

                              {time}  0945

  Mr. WELCH of Vermont. Mr. Speaker, I yield 2 minutes to the gentleman 
from Maine (Mr. Michaud).
  Mr. MICHAUD. I thank the gentleman for yielding.
  Mr. Speaker, I rise today in opposition to this rule, and I ask my 
colleagues to consider voting against this

[[Page 23908]]

rule for one simple reason, and that's time. I respect the work of our 
Rules Committee; I do not oppose this rule lightly.
  But the fact of the matter is, under this rule, we would begin 
debating a huge change to our patent system that would have major 
ramifications for our economy. We have just returned from a long work 
period in our districts. We found the committee report filed late in 
the day when we came back, and two manager's amendments filed late 
yesterday. Most Members haven't had time to understand what the 
manager's amendment fixes or doesn't fix.
  I can tell you, having worked all night late last night with staff to 
find out what the manager's amendment does: it actually worsens the 
underlying bill, especially with respect to the damages section of this 
bill. But Members aren't going to be given the time to really consider 
what the manager's amendment does or what it does not do. They are 
going to be told to trust the changes that have been made to fix a 
badly flawed legislation.
  Congressman Manzullo and I went to the Rules Committee yesterday to 
request that we not vote on this bill because it's not ready for floor 
action. We asked for more time to debate the bill in order for the 
opposition to be heard. We were denied. With over 300 organizations who 
are opposed to this legislation, have very serious concerns about this 
legislation, it is important that their voices be heard in this debate.
  We do need to address our patent system, and we must have the time to 
do it and do it right. By voting down this rule, we would give this 
House and the American people the time to make the right choices for 
our innovators, our jobs, our economy. So I would urge a ``no'' vote on 
the rule.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I yield 4 minutes to 
the distinguished gentleman from Wisconsin (Mr. Sensenbrenner).
  Mr. SENSENBRENNER. I thank the gentleman for yielding.
  Mr. Speaker, I rise in opposition to the rule.
  I am pleased that the Baldwin amendment was included in the manager's 
amendment. The Baldwin amendment deletes the prior user rights section 
from H.R. 1908, leaving current law on prior user rights intact.
  H.R. 1908, as considered in committee, encouraged a resort to trade 
secret practices which would have bred litigation and chilled 
publication and disclosure, which are the constitutional principles 
underlying the entire patent system.
  The Patent Reform Act, as originally drafted, would not have made for 
a good situation for innovation. It would have been detrimental to 
individual inventors, small businesses, nonprofits, including research 
universities. Although I plan to vote in favor of the Patent Reform 
Act, I have serious concerns about the process that we have used to 
reach floor action today.
  IPR law changes have always been negotiated in the subcommittee until 
this year. This bill should have been vetted in subcommittee. Instead, 
the subcommittee simply passed the buck to the full Judiciary 
Committee. Ramrodding this bill through subcommittee left a lot of 
unhappy people thinking that the train had left the station.
  The subcommittee Chair should have kept the bill in his subcommittee. 
Keeping it in subcommittee works, even though the process may take more 
time.
  As we realize, moving it forward with so many loose strings makes it 
quite easy for the whole thing to unravel. It's essential that 
subcommittee members work out problems in the subcommittee and not jam 
stakeholders.
  I believe that by holding onto this bill a little longer, we could 
have applied pressure to the stakeholders and moved them to our common 
ground. The volume of e-mails and calls we have received from interest 
groups, which number in the hundreds, clearly indicates that we don't 
have everybody on board. Much of this opposition could have been 
avoided.
  At subcommittee, the Chair told us that concerns would be addressed 
at full committee. The Chair then assured us that concerns would be 
worked out in the manager's amendment prior to floor action. While 
concessions have been made, this bill still needs work and isn't ready 
for prime time. Later today, during debate on the bill, I expect 
Members' concerns to be brushed off and told that everything will be 
worked out in conference.
  I served as Chair of the Judiciary Committee for 6 years, and I know 
all too well how elusive compromise can be. But that doesn't mean that 
we should throw in the towel or simply lower a shoulder and plow 
forward.
  I prevented my Courts and Intellectual Property Subcommittee Chair 
from moving forward on patent form until we could reach agreement with 
all the interested parties, and that is what we should have done here. 
Patent reform is vital to our Nation's economy. The House should not 
take up this legislation at odds with so many sectors of the economy 
for the benefit of others.
  The other body is continuing to entertain stakeholder meetings to try 
to develop consensus, and I commend them for that. This would be a wise 
course of action for the House as well. I believe that with more time 
and energy, we could draft a bill that is supported by a large cross-
section of America, which this bill is not.
  The process that we took to get here today was flawed, but it's not 
too late to correct it.
  I encouraged the Chair and the ranking member to continue to meet 
with stakeholders. That's the way to get a good patent bill that is 
really a 21st-century innovation-inspiring bill enacted into law.
  Mr. WELCH of Vermont. Mr. Speaker, I reserve the balance of my time.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, it is my pleasure to 
yield 4 minutes to the distinguished gentleman from Texas (Mr. 
Gohmert).
  Mr. GOHMERT. I thank my friend from Florida.
  Mr. Speaker, we have heard the term ``bipartisan'' with regard to 
this legislation, and as has been pointed out, there has been 
bipartisan support; but there has certainly been bipartisan opposition.
  Bipartisan, to many out there in the United States, means, oh, it 
must be fair. But the truth is, bipartisan doesn't mean fair, and it 
doesn't mean good; and this is one of those pieces of legislation that 
has severe problems that are neither fair nor good.
  Now in committee, the process involved a manager's amendment being 
made in the Committee of the Whole of the Judiciary Committee, followed 
immediately by an amendment to venue before anybody else was recognized 
so that an effort by me to have an amendment to fix venue problems that 
were really pronounced was shut out because that automatically made 
those third-degree amendments.
  That seemed to me a strange effort to avoid fairness on this 
important bill. We come in here today with this restrictive rule which 
will not allow full debate and wonder why is there such haste to avoid 
fairness in this rule. The rule here even abrogates the House rule that 
requires half the time be provided to the opposition, by saying it will 
be controlled by two people who both support the bill.
  Again, why is there such a push to avoid fairness in consideration 
and debate on this bill? ``We need a comprehensive bill'' is language 
we have heard over and over. What struck me was, gee, that's what we 
heard about the immigration debate: we need a comprehensive bill. Why 
was that said about immigration? I submit it was said because there 
were things that people wanted to hide in a comprehensive bill that 
could never pass on its own.
  So I begin to look at this bill, and it appears to have the same 
problem. There are things in here that don't go to fix patent controls. 
There is such an overreaching effort here to change rules and help the 
big dogs just devour and destroy the little guys.
  Now the patent control issue, that's a problem. Boy, how easy to fix 
that. All you would have to do is say if you are not the original 
patent holder and inventor, then your rights are restricted. But that 
keeps being thrown out as a

[[Page 23909]]

basis to destroy and change and use a wrecking ball to the entire 
patent law.
  The damages issues need a further look. My goodness, for so many 
years now the patent issues have been guided by factors that allow the 
courts to consider various types of damages. Now we have had one 
industry zero in on one time of damage that will help them and hurt all 
others. That's not fair.
  We were told that in the Judiciary Committee that many of us, by 
name, were called who would help the language. Since then, I have not 
heard of any meetings to work on language. My staff has not heard of 
any.
  Yet, we are told in here today, trust us, we are going to work 
together. This isn't the last time. I have heard over and over on that 
bill, and to come to this point, where there is so much substantial 
unfairness and abrogation of the fairness doctrine on taking up 
legislation concerns me all the more.
  This isn't fair. It's not good. It's not right. It's not timely to 
take this up without proper discourse.
  With that, I would ask that trust has not been earned. Therefore, 
people should vote against this rule on a bipartisan basis.
  Mr. WELCH of Vermont. Mr. Speaker, I reserve the balance of my time.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, it is my pleasure to 
yield 4\1/2\ minutes to the distinguished gentleman from California 
(Mr. Rohrabacher).
  Mr. ROHRABACHER. Mr. Speaker, I rise in strong opposition to the 
rule, as well as opposition to the underlying legislation.
  Let us note that this debate has been limited today, which is 
consistent with the substance of this legislation. The process, as well 
as the substance of H.R. 1908 is totally unacceptable. This bill should 
be called the Steal American Technologies Act Part 2.
  Yes, Mr. Berman and I have worked on this legislation over the years, 
and I thought that we had a compromise bill in 1999, with Howard Coble 
and others; and this bill just negates all of the compromises that were 
made and the honest attempts to reach a good patent bill.
  Yes, there was a patent bill that was passed and went into law in 
1999, let us note. This isn't the first patent reform legislation in 
the last 50 years; it's only the worst patent reform legislation over 
the last 50 years. This legislation, under the guise of reform, will 
dramatically diminish the constitutionally protected rights that were 
mandated by our Founders and that have been the impulse behind our 
Nation's prosperity and security.
  H.R. 1908 will dramatically weaken the patent rights of ordinary 
Americans and make us even more vulnerable to the outright theft of 
American-created technology and innovation. This legislation represents 
a slow-motion destruction of our patent system.
  So what's in the bill? First and foremost we know what's in the bill 
is a mandate to publish every patent application within 18 months, or 
after 18 months of that application being applied, whether or not that 
patent has been granted.
  So we are giving every thief in the world in India and in China and 
Japan and Korea the details of our most up-to-date innovative ideas, 
even before they are protected by the patents. We are being told, of 
course, Mr. Issa has an amendment that will handle this.
  Don't be fooled. Whether or not the Issa amendment passes, this 
legislation will still mandate the publication of most patent 
applications before the patent is issued.
  America's secrets will be exposed to a world filled with infringers 
and thieves. So don't be fooled by the Issa amendment, just the way we 
shouldn't be fooled by the very nature of this bill being called a 
reform bill when it should be called the Patent Destruction Act.
  Secondly, this bill opens up new avenues of attack before and after 
the patent has been issued, again weakening the inventor, strengthening 
the infringers, both foreign and domestic.
  Third, the bill changes the criteria of deciding the validity for a 
patent, again at the cost of the inventor. Fourth, the bill changes the 
way damages are calculated, again, at the expense of the inventor, and 
in the process creating havoc in our courts and forcing judges to be 
economists.
  The most fundamental of all, of course, we change the legal basis of 
our system from first-to-invent, which has been, historically, for 200 
years, the basis of the patent system, and now we are changing it to 
first-to-file, the way they do in Europe and in Japan. Do we really 
want to have a country like Japan? Look at their creative history. They 
rely on all of our ideas to perfect.
  In short, every promise of H.R. 1908 is anti-inventor, and every 
provision weakens the right of inventors and undermines one's ability 
to protect his or her invention. The electronic and financial industry 
billionaires who are pushing this are pushing it to facilitate their 
theft of new innovation. Yes, these guys are important to our economy, 
but the opposition to H.R. 1908 from the other economic sectors in our 
economy is deep and wide.
  Many of those quoted by Mr. Berman as having testified in these 
hearings are opposed to this bill. Biotech, pharmaceuticals, labor 
unions, universities, small businesses, all are against, adamantly 
against, this bill. Let us protect the little guy from foreign and 
domestic scavengers who would steal our country's newest ideas from the 
best and most creative minds of our country.
  I urge my colleagues to oppose this legislation and this rule.

                              {time}  1000

  Mr. WELCH of Vermont. Mr. Speaker, I continue to reserve.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, it is my pleasure to 
yield 4 minutes to the distinguished gentleman from Illinois (Mr. 
Manzullo).
  Mr. MANZULLO. Mr. Speaker, we are hearing this argument, let's just 
fix it in conference. Well, the last patent reform bill that passed, 
H.R. 1561, passed the House on March 3 of 2004. The Senate Judiciary 
Committee passed their bill, but it never saw action before the full 
Senate. The bill that the House passed never made it to conference, but 
it became law because someone stuffed it into the giant multi-thousand 
page omnibus consolidated appropriations bill which became law.
  And besides that, we are Members of Congress. For us to stand up here 
and say, well, this is too confusing for us to understand, excuse me; 
that's what we're paid for. And if we have to take a considerable 
period of our time to study and learn patent law, that's our job. If we 
don't do that, we are failing in our obligation to the people that we 
represent.
  So, what happened last time was good for making sausage. You stuffed 
the House-passed bill which never passed the Senate, never made it into 
conference, into a giant omnibus bill, but that's not how you make 
legislation.
  Now, look what's going on here. We were told that we had to file by 5 
p.m. on Wednesday afternoon any amendments to this bill. I went to the 
Rules Committee at 3 p.m. yesterday, where we met on the bill. At 2:43 
p.m., the first manager's amendment was filed, 18 pages long. While we 
were still discussing the first manager's amendment, the second 
manager's amendment got filed at 3:50 p.m.
  At 5:30 in the afternoon, the general public found out what was in 
it. I just found out in an analysis done on the second manager's 
amendment that this would be crippling to the small inventor. It would 
be horrifying to the patent holders in this country, that it would 
favor overseas patent holders as opposed to the American inventor.
  All I asked for in that Rules Committee was for an extra hour of 
debate, just 2 hours of debate on one of the most important topics this 
place has ever had, and we were denied that. And people turn on C-SPAN. 
They see us. We'll take a half an hour to debate a post office, an hour 
to debate two post offices, the naming of the post offices, but 1 hour, 
just 1 hour to debate one of the most important issues that has ever 
come before this Congress in 50 years, 50 years. That's just fairness. 
Just fairness is all we're asking for.
  I feel like asking for a motion to adjourn, but I'm not going to. 
That would not be fair to the Members that have other things to do.

[[Page 23910]]

  But to tell the American people the Members of Congress really don't 
need to know the details, that we'll take care of the details for you, 
that's an abandonment of our obligation here.
  We come here with the obligation to learn every issue on which we 
vote. We may not know all the nuances, we may not know all the details, 
but nobody's going to tell us that this is too confusing for you to 
understand, because that's not what the American people send us here 
for.
  And so I would just urge you, urge the folks, that there is no way 
possible in the limited amount of time that we can discuss this bill.
  Let me show you what this does. This is Caterpillar, this is RIM. It 
puts two companies against each other. RIM has a lot of American parts. 
The bill should be written to accommodate both, to accommodate the 
American inventions in both of these manufactured products.
  Vote ``no'' on the rule.
  Mr. WELCH of Vermont. Mr. Speaker, I yield 1 minute to the gentleman 
from Michigan (Mr. Conyers), Chair of the Judiciary Committee.
  Mr. CONYERS. Mr. Speaker, I thank the manager, and I rise to 
congratulate all the Members for all the hard work that has been done 
in the course of the many months, some would say years, in bringing 
this to the floor.
  I'd just like to make a comment about the manager's amendment that 
I've heard raised in the discussion because, actually, I thank the 
floor manager of the Rules Committee on the Republican side because we 
had, I thought, a very good meeting yesterday.
  It should be known to everyone here that the reason we had the late 
filing of the manager's amendment is that we were keeping it open for 
everybody to make their last changes. And most of the requests came 
from the minority side, which we were happy to accommodate. So it's in 
that spirit that I refer and make available to everybody here 
everything that are in manager's amendments, and hope that the fact 
that this is maybe 80 percent accomplished for almost all the many 
sides to this debate will carry us through the rule and through the 
spirit that has moved the committee and the subcommittee and the 
Judiciary Committee this far.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I reserve the 
balance of my time.
  Mr. WELCH of Vermont. Mr. Speaker, I yield 2 minutes to my friend and 
colleague, the gentleman from California (Mr. Issa), a member of the 
Judiciary Committee.
  Mr. ISSA. Mr. Speaker, I appreciate the gentleman yielding. The fact 
that this is what one might consider Democrat time being yielded to a 
Republican probably says just how bipartisan this bill is. This has 
been worked on in a Republican majority and in a Democrat majority. 
It's been cosponsored by the chairman and the ranking members of the 
committees. It is, in fact, an unusual piece of work.
  Additionally, this rule, and I've been voting against rules lately 
because they weren't open and fair. This rule accommodated virtually 
every amendment offered. In fact, many of the people speaking here 
today against the bill and against the rule didn't offer any 
amendments.
  Whether you're on the committee or not, this is your opportunity, 
after nearly 4 years of this being an open process under leadership on 
both sides of the aisle, this is your opportunity, if you have 
solutions.
  I urge the passage of this rule and the passage of the underlying 
bill because, in fact, it is the best work the best minds on both sides 
of the aisle could produce over 3 years.
  Now, people who, in fact, are saying they don't want to vote for it 
are saying we just need more time. In fact, the engine that drives the 
economic wealth of our country cannot afford for us to simply let the 
men and women in black robes continue to try to patch a broken system, 
as the Supreme Court has done. Not moving in this Congress, and rapid 
pace could be another year, including the other body. Not moving in 
this Congress would force the Supreme Court to deal with an out-of-date 
set of laws. We need to vote this bipartisan bill through a very 
positive rule, and then to final passage.
  I strongly recommend that people look at the fact that amendments 
were accepted by both sides of the aisle, and, as the chairman said, 
more were accepted by the Republicans, in addition to literally 
hundreds of suggestions being incorporated into the manager's 
amendment.
  I move that we pass the rule, pass the underlying bill, continue a 
bipartisan process that, of course, will always have somebody who feels 
they're not benefited. But, in fact, you can't get this kind of support 
by people who do not normally work well together unless, in fact, this 
process has been full and fair, as it has been. I thank the ranking 
member and the chairman for their bipartisan work.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I want to thank all 
of our colleagues who have participated in this debate; thank Chairman 
Conyers for his kind words.
  This obviously is very important legislation. And even though my very 
good friend, Mr. Issa, just stated that most of the amendments had been 
made in order by the Rules Committee, that's not the case. Five 
amendments were made in order, and nine, nine were denied.
  Mr. BERMAN. Will the gentleman yield on that issue?
  Mr. LINCOLN DIAZ-BALART of Florida. I have very little time. I will 
yield.
  Mr. BERMAN. A number of the nine that were not made in order were 
incorporated, at the request of the authors of the amendments, into the 
manager's amendment.
  Mr. LINCOLN DIAZ-BALART of Florida. Reclaiming my time. A number of 
important amendments have not been made in order. And on legislation 
this important, we think that it should have been brought forth with an 
open rule. And so that's why we oppose the rule, and would urge that 
the majority of the Rules Committee bring forth this legislation again 
with the opportunity of all Members of the House to offer all 
amendments based on their work product for consideration by all of our 
colleagues.
  And so with that, I urge the defeat of this unfair rule.
  Mr. Speaker, I yield back the balance of my time.
  Mr. WELCH of Vermont. Mr. Speaker, I close by making two comments. 
Number one, this bill was the product not just of exhaustive hearings 
by the subcommittee on a bipartisan basis. It's really been the work of 
a couple of Congresses.
  The patent reform system hasn't been changed in any significant way 
for literally over a half a century, and the changes that have occurred 
in our economy in electronic communications, in telecommunications, on 
software, on biotechnology, on every field that has produced wealth in 
this country have been extraordinary, yet the patent system has been 
stuck in 1952 mode.
  The process that the chairman, Mr. Berman, the ranking member, Mr. 
Smith, and others have had to go through to try to accommodate the 
legitimate concerns of the inventor community, of the corporate 
community, and the complexities of that have been extreme.
  This amendment that is being presented to you reflects an open 
process, not an open amendment with anything and everything on the 
table, but the product of an open process where everybody who had a 
concern was actually heard, and the best effort was made to accommodate 
them directly with specific legislation in the bill, in the manager's 
or in the amendments that were offered.
  So the committee members, on a bipartisan basis, with Mr. Berman and 
Mr. Smith, have done everything possible to accommodate the concerns of 
the inventor community, the corporate community, our modern economy and 
the representatives in this body who are standing up for their 
constituents.
  Secondly, there was some assertion that this is an anti-inventor 
bill. That is absolutely wrong. This is a bill that is being endorsed 
by the National Academy of Sciences, by many in the university 
community, and by others who have, as their whole motivation,

[[Page 23911]]

the expansion of knowledge and then the implementation of the benefit 
of that knowledge through a patent system.
  So the committee has done an open process which has brought us to 
this point, and it has proposed changes that are 50 years in the 
making, that is going to strengthen and expand the rights of our patent 
community.
  Mr. Speaker, I urge a ``yes'' vote on the rule, House Resolution 636.
  I yield back the balance of my time, and I move the previous question 
on the resolution.
  The previous question was ordered.
  The SPEAKER pro tempore. The question is on the resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the 
yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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