[Congressional Record (Bound Edition), Volume 157 (2011), Part 2]
[Senate]
[Pages 2837-2841]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       PATENT REFORM ACT OF 2011

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 23, which the clerk will report 
by title.
  The assistant legislative clerk read as follows:

       A bill (S. 23) to amend title 35, United States Code, to 
     provide for patent reform.

  Pending:

       Leahy amendment No. 114, to improve the bill.
       Vitter/Toomey amendment No. 112, to require that the 
     government prioritize all obligations on the debt held by the 
     public in the event that the debt limit is reached.
       Bennet amendment No. 116, to reduce the fee amounts paid by 
     small entities requesting prioritized examination under 
     Three-Track Examination.
       Bennet amendment No. 117, to establish additional USPTO 
     satellite offices.
       Lee amendment No. 115, to express the sense of the Senate 
     in support of a balanced budget amendment to the 
     Constitution.

  Mr. LEAHY. Madam President, yesterday the Senate began debating the 
America Invents Act. We adopted the committee amendments, and we 
proceeded to have five additional amendments offered to the bill. This 
morning I will be offering a managers' amendment, along with the 
distinguished Senator from Iowa, Mr. Grassley, that incorporates 
additional improvements being made at the suggestions of Senator 
Coburn, Senator Schumer, Senator Coons, Senator Bennet, and others.
  When we adopt this managers' amendment, I believe we will move very 
close to a consensus bill the Senate can and should pass to help create 
good jobs, encourage innovation, and strengthen our recovery and 
economy.
  I ask unanimous consent to have printed in the Record the Statement 
of Administration Policy from the Obama administration and the Edward 
Wyatt article.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Statement of Administration Policy


                    s. 23--patent reform act of 2011

       (Sen. Leahy, D-Vermont, and 11 cosponsors, Feb. 28, 2011)

       The Administration supports Senate passage of S. 23. As a 
     whole, this bill represents a fair, balanced, and necessary 
     effort to improve patent quality, enable greater work sharing 
     between the United States Patent and Trademark Office (USPTO) 
     and other countries, improve service to patent applicants and 
     the public at the USPTO, and offer productive alternatives to 
     costly and complex litigation.
       By moving the United States to a first-to-file system, the 
     bill simplifies the process of acquiring rights. This 
     essential provision will reduce legal costs, improve 
     fairness, and support U.S. innovators seeking to market their 
     products and services in a global marketplace. Further, by 
     providing authority for the USPTO to establish and adjust its 
     fees to reflect changes in costs, demand, and workload, the 
     bill would enhance productivity--reducing delay in the patent 
     application process--and ensure full cost recovery at no 
     taxpayer expense. Senate passage of this bill is consistent 
     with the Administration's commitment to support and encourage 
     innovation that leads to improved competiveness, economic 
     prosperity, and job growth--without adding a penny to the 
     deficit.
       Finally, the Administration understands that several 
     stakeholders have suggested that the provisions on damages 
     and venue are no longer needed in the legislation in light of 
     recent court decisions in these areas. The Administration 
     would not object to removal of these provisions from the 
     final version of the legislation.
       The Administration looks forward to continuing to work with 
     the Congress to craft patent reform legislation that reflects 
     sound policy and meets the needs of the Nation's innovators.
                                  ____


      U.S. Sets 21st-Century Goal: Building a Better Patent Office

                    (By Edward Wyatt, Feb. 20, 2011)

       Washington.--President Obama, who emphasizes American 
     innovation, says modernizing the federal Patent and Trademark 
     Office is crucial to ``winning the future.'' So at a time 
     when a quarter of patent applications come from California, 
     and many of those from Silicon Valley, the patent office is 
     opening its first satellite office--in Detroit.
       That is only one of the signs that have many critics saying 
     that the office has its head firmly in the 20th century, if 
     not the 19th.
       Only in the last three years has the office begun to accept 
     a majority of its applications in digital form. Mr. Obama 
     astonished a group of technology executives last year when he 
     described how the office has to print some applications filed 
     by computer and scan them into another, incompatible computer 
     system.
       ``There is no company I know of that would have permitted 
     its information technology to get into the state we're in,'' 
     David J. Kappos, who 18 months ago became director of the 
     Patent and Trademark Office and undersecretary of commerce 
     for intellectual property, said in a recent interview. ``If 
     it had, the C.E.O. would have been fired, the board would 
     have been thrown out, and you would have had shareholder 
     lawsuits.''
       Once patent applications are in the system, they sit--for 
     years. The patent office's pipeline is so clogged it takes 
     two years for an inventor to get an initial ruling, and an 
     additional year or more before a patent is finally issued.
       The delays and inefficiencies are more than a nuisance for 
     inventors. Patentable ideas are the basis for many start-up 
     companies and small businesses. Venture capitalists often 
     require start-ups to have a patent before offering financing. 
     That means that patent delays cost jobs, slow the economy and 
     threaten the ability of American companies to compete with 
     foreign businesses.
       Much of the patent office's decline has occurred in the 
     last 13 years, as the Internet age created a surge in 
     applications. In 1997, 2.25 patents were pending for every 
     one issued. By 2008, that rate had nearly tripled, to 6.6 
     patents pending for every one issued. The figure fell below 
     six last year.
       Though the office's ranks of patent examiners and its 
     budget have increased by about 25 percent in the last five 
     years, that has not been enough to keep up with a flood of 
     applications--which grew to more than 2,000 a day last year, 
     for a total of 509,000, from 950 a day in 1997.
       The office, like a few other corners of the government, has 
     long paid its way, thanks to application and maintenance 
     fees. That income--$2.1 billion last year--has made it an 
     inviting target for Congress, which over the last 20 years 
     has diverted a total of $800 million to other uses, rather 
     than letting the office invest the money in its operations.
       Applications have also become far more complex, said 
     Douglas K. Norman, president of the Intellectual Property 
     Owners Association, a trade group mainly of large technology 
     and manufacturing companies.
       ``When I was a young patent lawyer, a patent application 
     would be 20 to 25 pages and have 10 to 15 claims,'' Mr. 
     Norman said. A claim is the part of the patent that defines 
     what is protected. ``Now they run hundreds of pages, with 
     hundreds, and sometimes thousands, of claims.''
       Lost in the scrutiny of the office's logjam, however, was 
     the fact that the number of patents issued reached a record 
     last year--more than 209,000, or 29 percent more than the 
     average of 162,000 a year over the previous four years. 
     Rejections also hit a high of 258,000--not a measure of 
     quality, Mr. Kappos said, but a sign of greater efficiency.
       Between the backlog of 700,000 patents awaiting their first 
     action by an examiner

[[Page 2838]]

     and the 500,000 patents that are in process, a total of 1.2 
     million applications are pending.
       Sitting in his suburban Virginia office, not far from a 
     model of the light bulb Edison presented for patent in 
     November 1879 (which was approved two and a half months 
     later), Mr. Kappos proudly ticked off figures that he said 
     proved the agency was heading in the right direction.
       The backlog has actually declined about 10 percent from a 
     peak of 770,000 at the end of 2008.
       ``We were able to work a 13-month year last year,'' he 
     said, referring to the productivity increase in 2010 over 
     2009. ``We are processing a far larger workload with the same 
     number of examiners.''
       Still, Mr. Kappos wants to add more than 1,000 examiners in 
     each of the next two years, a 30 percent increase. Mr. 
     Obama's 2012 budget calls for a 28 percent increase in 
     spending, to $2.7 billion, over 2010. In two consecutive 
     sessions, Congress has defeated a bill that would allow the 
     patent office to keep all of the fees it collects. While 
     another similar effort is under way, a big staffing increase 
     will not be easy in a climate of cuts.
       Mr. Kappos, a former electrical engineer and lawyer who 
     joined the patent office in 2009 after 27 years at I.B.M., 
     has improved relations with the union representing patent 
     examiners. He and the union agreed on performance evaluation 
     measures last year, the first time in 5o years that the 
     yardsticks had been revised.
       ``I give David Kappos a good deal of credit for seeing 
     where the problems have been and being willing to address 
     them,'' said Robert D. Budens, president of the union, the 
     Patent Office Professional Association. ``I think it's a 
     little early to see the full extent of the changes. But we 
     have seen an increase in morale and a decrease in attrition, 
     which is now almost the lowest it's been since I came here'' 
     in 1990.
       Patent applications come from all over the United States, 
     and the office has forgone satellite offices--until now. Last 
     year, the office announced it would put about 100 examiners 
     in Detroit. Some prominent lawmakers from Michigan have 
     worked on patent issues, including Representative John 
     Conyers Jr., a Detroit Democrat who, when the decision was 
     made, was chairman of the House Judiciary Committee, which 
     oversees patents.
       Mr. Kappos said he chose Detroit because it had large 
     communities of patent lawyers and agents, nearby universities 
     and transportation centers, and relatively low costs of 
     living and real estate. ``Detroit has long been an innovation 
     center,'' he said. ``It's undervalued, and that is where we 
     want to invest.'' He said it would also attract a work force 
     with more varied skills.
       Mr. Kappos is also pushing an initiative that would charge 
     patent applicants a higher fee to guarantee that their 
     applications will receive a ruling within a year. But that 
     initiative and others are not enough, said Paul R. Michel, 
     who recently retired as chief judge for the United States 
     Court of Appeals for the Federal Circuit in Washington, the 
     main forum for patent appeals.
       ``The office can't be made efficient in 18 months without a 
     vast increase in finances,'' said Mr. Michel, who has made 
     evangelizing for an overhaul of the office a pet cause. 
     ``Small efficiency improvements will only make a small 
     difference in the problem.''

  Mr. LEAHY. I thank all of those with the administration who worked on 
the matter, and particularly Secretary Locke, Director Kappos of the 
Patent and Trademark Office, and former Secretary Daley, now Chief of 
Staff at the White House.
  The statement describes the bill as representing a fair, balanced, 
and necessary effort to improve patent quality. It concludes: ``Senate 
passage of this bill is consistent with the Administration's commitment 
to support and encourage innovation that leads to improved 
competitiveness, economic prosperity, and job growth--without adding a 
penny to the deficit.''
  It also notes that transition to a first-to-file system simplifies 
the process of acquiring rights and describes it as an ``essential 
provision [to] reduce legal costs, improve fairness, and support U.S. 
innovators seeking to market their products and services in a global 
marketplace.''
  I agree. I believe it should help small and independent inventors. On 
President's Day, just over a week ago, the New York Times included an 
article on its front page entitled ``U.S. Sets 21st-Century Goal: 
Building a Better Patent Office.''
  That is what we are trying to do with our bill, the bipartisan Leahy-
Grassley-Hatch Patent Reform Act or, as it has become known, the 
America Invents Act. We have to reform our patent office and our patent 
laws. They have not been updated for 60 years. We have to help to 
create good jobs, encourage innovation, and strengthen our economy.
  The reporter notes the growth in patent applications to more than 
2,000 a day last year. That is not a typographical error--2,000 a day 
last year. A record 209,000 patents were issued in 2010. But there 
remains a backlog of 700,000 patents awaiting initial action at the 
U.S. Patent and Trademark Office, and another 500,000 being processed. 
That is 1.2 million applications in the pipeline. Among them could be 
the next medical miracle, the next energy breakthrough, the next leap 
in computing ability, the next killer app. We should all do what we can 
to help PTO Director Kappos and the dedicated women and men of the PTO 
to modernize and reform.
  It makes no sense that it takes 2 years for an inventor to get an 
initial ruling on his or her patent application, then another year or 
more to get the patent.
  As New York Times reporter Edward Wyatt notes:

       The delays and inefficiencies are more than a nuisance for 
     inventors. . . . [P]atent delays cost jobs, slow the economy, 
     and threaten the ability of American companies to compete 
     with foreign businesses.

  We are not going to be the leader we are today if we allow that to 
continue. But the Senate has before it bipartisan legislation that can 
lead to long-needed improvements in our patent laws and system. We 
should be focused on it and moving ahead to pass it without delay. It 
is a measure that can help facilitate invention, innovation, and job 
creation, and do so in the private sector. This can help everyone from 
startups and small businesses to our largest cutting-edge companies.
  This is the time for the Senate to serve the interests of the 
American people by concentrating on the important legislation before 
us. We should not be distracted. It is a bipartisan bill. We should not 
be diverted into extraneous issues but focus our debate on those few 
amendments that Senators feel need to be debated to perfect this bill 
and which are germane to this bill.
  I mentioned in my opening statement the anticipated amendment on fee 
diversion. I appreciate the efforts of the Senator from Oklahoma to end 
patent fee diversion. It is a reform that Senator Hatch and I have long 
supported. I appreciated him working with me and withholding his 
amendment during committee consideration. So we are incorporating his 
amendment in the managers' amendment.
  We also incorporate in the managers' amendment an amendment from 
Senator Schumer that concerns business method patents. We provide a 
process for their reexamination by the Patent and Trademark Office. 
This would also improve patent quality.
  We incorporate suggestions from Senator Bennet and Senator Coons to 
remove certain damages and venue provisions that are no longer 
necessary in light of recent court decisions. The administration noted 
in its statement that it would not object to the removal of these 
provisions.
  Senator Bennet came forward last night with sound amendments that he 
explained. They are included in this amendment, along with the change 
to the definition of a ``microentity'' made at the suggestion of the 
majority leader, and my amendment to conform the name of the 
legislation to the America Invents Act. I hope we adopt this amendment 
without delay.
  I understand there may be Senators who do not agree with the first-
to-file reform to update and simplify our system. If they intend to 
bring an amendment, they should do so without delay. We should be able 
to complete action on this bill today or tomorrow. Then the Senate can 
turn its full attention to another important matter, the funding 
resolution needed to be enacted this week by Congress. What we should 
not do is delay or sacrifice the job-creating potential of this bill to 
a side debate about the debt limit or whether we amend the Constitution 
of the United States. Those are debates I will be happy to have in 
their own right. We must not allow other countries around the world to 
have such a competitive advantage because we are too slow in moving on 
this bill.
  The bipartisan American Invents Act is too important to be turned 
into a mere vehicle to launch speeches and

[[Page 2839]]

debates about pet causes. It is not the bill to have debates about 
whether if the United States were to reach its debt ceiling, the 
government should favor paying creditors such as China before meeting 
its other obligations to the American people.
  That theoretical debate has nothing to do with the patent reforms in 
this bill, and there will be a bill that you can have the debate on if 
you want. In fact, this bill is one that does not spend taxpayers' 
money or raise the debt one dollar. Accordingly, I will ask the support 
of our lead Republican sponsors and the bipartisan Senate leadership to 
promptly table extraneous amendments so we can complete our work on 
this legislation and serve the interests of the American people.
  I have a managers' amendment. I described part of it already. I will 
send it to the desk and ask unanimous consent that the pending 
amendments be set aside and this be considered.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will report.


                           Amendment No. 121

  The assistant legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy], for himself, Mr. 
     Grassley and Mr. Kyl, proposes an amendment numbered 121.

  Mr. LEAHY. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. LEAHY. I ask for agreement on the managers' amendment.
  Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER (Mr. Tester.) The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection----
  Mr. LEAHY. Reserving the right to object--I would ask if the 
distinguished Senator could hold off----
  The PRESIDING OFFICER. The Senator cannot reserve.
  Mr. LEAHY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I understand Senator DeMint will be 
offering an amendment in the first degree which will require setting 
aside the managers' amendment. My understanding is, once he has done 
that, we will then set aside his amendment and go back to the managers' 
amendment.
  I yield to the distinguished Senator.
  The PRESIDING OFFICER. The Senator from South Carolina.


                     Amendment No. 113, As Modified

  Mr. DeMINT. Mr. President, I ask unanimous consent that the pending 
amendment be set aside so I can call up amendment No. 113, as modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from South Carolina [Mr. DeMINT], for Mr. 
     Vitter, proposes an amendment numbered 113, as modified.

  Mr. DeMint. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To require that the Government give equal priority to payment 
of social security benefits and payment of all obligations on the debt 
    held by the public in the event that the debt limit is reached)

       At the appropriate place add the following:
       (c) Prioritize Payment of Social Security Benefits.--
     Notwithstanding subsection (b), in the event that the debt of 
     the United States Government, as so defined, reaches the 
     statutory limit, the authority described in subsection (b) 
     and the authority of the Commissioner of Social Security to 
     pay monthly old-age, survivors', and disability insurance 
     benefits under title II of the Social Security Act shall be 
     given equal priority over all other obligations incurred by 
     the Government of the United States.

  Mr. DeMINT. I yield the floor.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the pending 
amendment now be set aside and that the managers' amendment be the 
pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COONS. Mr. President, I rise today to speak to the America 
Invents Act. To put it simply, this bill, the America Invents Act, is 
about creating jobs. It is about protecting and promoting American 
ingenuity and giving American ideas the opportunity to become American 
products. The America Invents Act is about restoring American 
competitiveness and leadership in our global economy.
  America has been at the forefront of global innovation throughout our 
Nation's great history. We invented the lightning rod, the cotton gin, 
the mechanical reaper and thresher. Thomas Edison, perhaps the most 
noted American inventer, invented the electric light, electric power 
transmission, the motion picture camera, the phonograph, and x-ray 
photography. The transistor, carbon fiber, GPS, Kevlar, recombinant 
DNA, the personal computer, and the Internet are all American 
inventions as well. Even more recently, American companies have 
invented the iPod and the iPhone and the Segway.
  Inventors in Delaware and across America are right now working on 
critical advances in wind turbines, fuel cell technology, and electric 
cars. These technical innovations and so many others have improved our 
standard of living and spurred job growth, giving rise to entire 
industries that would not have been possible without the advancements 
of applied science.
  I believe innovation will be key to reigniting the American 
manufacturing sector as well.
  As low-skilled jobs have moved offshore, the only solution is to 
create highly skilled jobs here to replace them. These jobs will be 
founded on American ideas and advancements.
  In today's high tech world, however, the cost of innovation can be 
high. In my home State of Delaware, DuPont invests about $1.3 billion 
annually in research and development. Nationwide, according to the 
Organization for Economic Cooperation and Development, U.S. companies 
invest over $370 billion in R&D each year. In the pharmaceutical 
industry, which is also important to my home State, experts estimate 
that each new drug requires an initial investment of between $800 
million and $2 billion.
  Innovation is absolutely critical to the continued growth of our 
Nation.
  Our Founding Fathers recognized that investment in innovation will 
not occur without a system of patent rights to allow inventors to reap 
the fruits of their labor, and they placed with the Congress the 
authority to provide for the issuance of patent rights.
  Article 1, section 8, clause 8 states that Congress shall have 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.

  However complicated applied sciences were in 1836, when Congress 
established the forerunner to the U.S. Patent and Trademark Office, 
they are infinitely more complicated today. Never has PTO been more 
central to ensuring that the system of nationwide patents contemplated 
by our Founding Fathers is possible today. PTO must

[[Page 2840]]

have clear, objective guidelines that enable an applicant to predict 
whether his or her application will be approved. That application 
process must move expeditiously. At the end of that process, when PTO 
issues a patent, the inventor and the industry must have confidence 
that the patent is of good quality and will provide good defense 
against future challenges.
  In recent years, however, PTO has fallen short of these objectives. 
Today, a patent applicant must wait over 2 years before an examiner 
first picks up that application. Two years. At this moment, more than 
700,000 applications simply sit at PTO awaiting consideration. Each one 
of those applications represents an idea that could create a job or 10 
jobs or 100 or 1,000. If you file a patent application at PTO today, 
you can expect to wait just over 3\1/2\ years for an initial 
disposition. Should PTO make an error in their examination, it would 
take about 3 more years to appeal it.
  In a world in which startup companies depend on patents to secure 
venture capital and other funding, these times are just too long. While 
PTO Director Kappos has achieved some success and has begun to right 
the ship at PTO, he simply cannot accomplish acceptable reform without 
our action.
  The America Invents Act takes a number of steps to improve the 
efficiency with which this country handles patents, all of them 
designed to make the U.S. more competitive in the global economy.
  First, the America Invents Act will give PTO the tools it needs to 
address the unacceptably long backlog of patent applications. In 
February 2009, despite an increasing need for qualified patent 
examiners, PTO instituted a hiring freeze. PTO is a user-fee supported 
organization and so it should be able to pass through the costs of 
staffing needs to patent applicants. This bill would finally give the 
PTO the authority to set its own fees rather than having to wait for an 
act of Congress to do so.
  Another source of the backlog is the issue of patent fee diversion. 
Currently, the fees paid by applicants for the purpose of funding the 
costs of patent examination can be diverted away from PTO to the 
Treasury without justification. Patent fee diversion cripples the 
ability of PTO to do its job and is essentially a tax on innovation. In 
the past 20 years, more than $800 million have been diverted from PTO 
and though in recent years almost no money has been diverted thanks to 
the determined leadership of my colleague, Senator Mikulski, PTO 
funding should never depend on shifting political fortunes. Even in 
times of political favor, the mere possibility of fee diversion is 
harmful because it robs PTO of the ability to plan with confidence that 
a varying workload will be matched by funding.
  This bill does not currently address the issue of patent fee 
diversion, but that is something that I and others are working to 
change. Ending fee diversion is perhaps the single most effective thing 
that we can do to empower PTO to reduce the patent backlog over the 
long term. That is why I look forward to supporting Dr. Coburn's 
amendment, which would ensure that PTO has access to the fees that it 
charges, subject to continuing congressional oversight, of course.
  The second thing the America Invents Act does to make the United 
States more competitive is to improve the predictability and accuracy 
of the patent examination process. By transitioning to a ``first to 
file'' system, this bill brings the U.S. into line with the rest of the 
world. Under ``first to file,'' PTO's task of determining the priority 
of a patent application will be more straightforward because patent 
priority will depend on objective, public facts, rather than on secret 
files. To smaller inventors who are concerned that ``first to file'' 
will allow large companies to beat them out in a race to the patent 
office, this bill contains important protections for all inventors. 
Even under ``first to file,'' an inventor's patent priority is 
protected for a year if he or she is the first to publicly disclose an 
invention.
  Not only does the America Invents Act make the patent process fairer 
to inventors, but it will actually improve the quality of patents 
issued by the PTO by leveraging the knowledge of outside parties. This 
bill permits third parties to provide submissions regarding prior art 
before a patent is issued, enhancing the ability of examiners to 
determine whether an application is for a truly innovative idea worthy 
of the protection of a patent.
  The bill takes another step toward improving patent quality by 
changing the way the issuance of patents can be challenged. The America 
Invents Act introduces a 9-month post-grant review process during which 
third parties can challenge a patent on any grounds. When you combine 
the new pre-issuance submission process and the new post-grant review 
process, what you get is a more rigorous and more thorough vetting of 
patent applications.
  We will get stronger, higher quality patents because of the America 
Invents Act.
  Chairman Leahy, along with his Republican cosponsors Senators Hatch, 
Kyl and Sessions, deserve enormous credit for the bill that was 
reported unanimously by the Judiciary committee just 4 weeks ago. The 
America Invents Act reflects years of hard-fought negotiations between 
the affected stakeholders.
  At a time when bipartisanship is too frequently a platitude than 
actual process, it should be noted that the America Invents Act shares 
wide bipartisan support. Senators from both parties worked together on 
the bill we consider today, and both sides of the aisle should be proud 
of what we accomplished.
  I applaud Leaders Reid and McConnell for their commitment to the open 
amendment process. Despite the broad agreements that have been reached 
so far, the Senate can and should consider suggestions to change the 
bill. I know that I will support Dr. Coburn's amendment on fee 
diversion. I also hope that the Senate will accept an amendment that I 
have filed which would remove the section of the bill dealing with 
venue.
  While venue-shopping is a serious problem, the current language in 
the bill risks stunting the development of case law, which has begun to 
address the problem of plaintiffs' manufacturing venue in districts 
that have a reputation of being hospitable for patent suits. In fact, 
companies such as Oracle and HP, while they initially supported 
legislative reform of venue, now fear that this provision will do more 
harm than good. I look forward to debating all of these amendments in 
the future.
  Let me conclude my remarks on S. 23 by renewing my call to my fellow 
Senators to carefully consider and support this legislation. The 
America Invents Act is complicated and the subject matter may seem 
daunting, but I believe it is critical to protecting American 
innovation and defending American competitiveness.
  The playing field for economic innovation has never been more 
crowded. The United States faces rivals growing in strength and number, 
which is why our government should be encouraging innovation, not 
stifling it.
  The America Invents Act will create jobs in Delaware and throughout 
the United States by removing some of the administrative roadblocks 
currently preventing inventors from becoming successful entrepreneurs. 
This bill will improve the speed, quality and reliability of the Patent 
and Trademark Office and it will ensure that America retains its place 
in the world as the leader of invention and innovative thinking.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KIRK. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 123

  Mr. KIRK. Mr. President, I ask unanimous consent to set aside the 
pending amendment and call up the Kirk-Pryor amendment No. 123.

[[Page 2841]]

  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Mr. President, reserving the right to object, and I do not 
intend to object, my understanding is the Senator from Illinois will 
offer his amendment and then will not object to his amendment then 
being set aside and we go back to the managers' amendment; is that 
correct?
  Mr. KIRK. That is correct.
  Mr. LEAHY. I will not object.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The bill clerk read as follows:

       The Senator from Illinois [Mr. Kirk], for himself and Mr. 
     Pryor, proposes an amendment numbered 123.

  Mr. KIRK. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To provide a fast lane for small businesses within the U.S. 
    Patent and Trademark Office to receive information and support 
                    regarding patent filing issues)

       On page 104, between lines 22 and 23, insert the following:

     SEC. 18. PATENT OMBUDSMAN PROGRAM FOR SMALL BUSINESS 
                   CONCERNS.

       Subject to available resources, the Director may establish 
     in the United States Patent and Trademark Office a Patent 
     Ombudsman Program. The duties of the Program's staff shall 
     include providing support and services relating to patent 
     filings to small business concerns.

  Mr. KIRK. Mr. President, the Kirk-Pryor amendment seeks to assist 
some of our greatest innovators by providing a fast lane within the 
U.S. Patent and Trademark Office for small businesses to receive 
information and assistance regarding their patent applications.
  Small businesses are the economic engine of the American economy. 
According to the Small Business Administration, small businesses employ 
just over half of all private sector employees and create over 50 
percent of our nonfarm GDP. Illinois alone is home to 258,000 small 
employers and more than 885,000 self-employers.
  Small businesses are helping to lead the way on American innovation. 
These firms produce 13 times more patents per employee than large 
patenting firms, and their patents are twice as likely to be among the 
most cited among all patents. Small business breakthroughs led to the 
development of airplanes, FM radio, and the personal computer. 
Unfortunately, the share of small-entity patents is declining, 
according to a New York University researcher.
  While S. 23 takes great strides in reforming our patent system, it 
can still be daunting for a small business owner or inventor to obtain 
a patent. In many instances, the value of a patent is what keeps that 
new small business afloat.
  It is vital for America's future competitiveness, her economic 
growth, and her job creation that these innovators spend their time 
developing new products and processes that will build our future, not 
wading through government redtape. Our amendment would help small firms 
navigate the bureaucracy by establishing the U.S. Patent and Trademark 
Office Ombudsman Program to assist small businesses with their patent 
filing issues. The provision was first conceived as part of the Small 
Business Bill of Rights, which I introduced in the House, to expand 
employment and help small businesses grow. The Small Business Bill of 
Rights and this amendment are endorsed by the National Federation of 
Independent Business. I am proud to have this as part of a 10-point 
plan to be considered here in the Senate.
  I wish to thank Senator Mark Pryor of Arkansas, who is the lead 
Democratic cosponsor of this amendment. He is a strong and consistent 
supporter of small business, and I appreciate his partnership on this 
important program. I also thank Chairman Leahy and Ranking Member 
Grassley and their staffs for working with us on this amendment and for 
preserving this critical legislation.
  Our Founding Fathers recognized the importance of a strong patent 
system that protects and incentivizes innovators. I look forward to 
supporting S. 23, which will provide strong intellectual property 
rights to further our technological advancement.
  In sum, we should help foster innovation by protecting innovators, 
especially small business men and women, and I urge adoption of the 
amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.


                           Amendment No. 121

  Mr. LEAHY. Mr. President, I thank the Senator from Illinois for his 
contribution to this effort.
  I ask unanimous consent that we set aside the Kirk-Pryor amendment 
and go back to the pending business, which is the managers' amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I understand there will be another Senator 
who will come down and speak, and in the meantime I suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the 
distinguished Senator from Michigan, Ms. Stabenow, be recognized as 
though in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan.
  (The remarks of Ms. Stabenow are printed in today's Record under 
``Morning Business.'')

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