[Congressional Record (Bound Edition), Volume 159 (2013), Part 11]
[House]
[Pages 16282-16284]
[From the U.S. Government Publishing Office, www.gpo.gov]




        THE SECRET OF AMERICA'S SUCCESS--TECHNOLOGY AND FREEDOM

  The SPEAKER pro tempore (Mr. Cook). Under the Speaker's announced 
policy of January 3, 2013, the Chair recognizes the gentleman from 
California (Mr. Rohrabacher) for 30 minutes.
  Mr. ROHRABACHER. Mr. Speaker, in the words of my former boss, 
President Reagan, Well, here we go again.
  Over the last 25 years, I and a small band of ``just refuse to go 
along and get along'' types here in Congress have engaged in a constant 
fight to maintain the intellectual property of American inventors.
  The intellectual property rights of our inventors is something that 
has been a great treasure to our country. Our Founding Fathers felt so 
strongly about technology and freedom--and, yes, with the profit 
motive--that that was the formula that would uplift human kind, and 
they believed in it so much that they wrote that into our Constitution.
  Article I, section 8, clause 8 of the Constitution:

       The Congress shall have 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.

  I might add that this is the only place in the body of the 
Constitution in which the word ``right'' is used.
  The Bill of Rights comes in during the amendment process of the 
Constitution, but our Founding Fathers thought so highly of technology 
and technology advancement that the right of inventors was included in 
the body of the Constitution.
  This provision has served America well. It has led to general 
prosperity that we would not have had otherwise. It has led to national 
security where we have faced foes that have outnumbered us so heavily, 
but what were heavily relied upon were the technologies that were 
developed to help our Armed Forces defend themselves and, thus, defend 
the country. Of course, this has served us well because the technology 
and the freedom we have has created a society in which ordinary 
people--decent people--can live very fruitful lives and can enjoy the 
fruits of their labor.
  Americans work hard, but this wasn't just created by hard work. That 
is the important thing to remember. Without hardworking Americans, it 
wouldn't have worked; but it was the technology that they used that 
made the difference. People work hard all over the world. They work 
long hours, and they live in poverty and deprivation, but we coupled 
the hard work of our people with technology; and, thus, what we have 
had is a success that has uplifted the common man and has served as a 
light of hope for all human beings in that we can produce the wealth 
needed for regular people to lead decent lives. So that is the secret 
of America's success--technology and freedom--and, yes, perhaps we 
could include the right values.
  It was our strong patent system and a respect for law that made the 
difference in that technology and freedom. Yet, today, multinational 
corporations run by Americans want to diminish patent protection in the 
United States. We have had the strongest patent protection of any 
country in the world; yet we have had for these last 25 years major, 
major efforts to diminish the patent protection that we have and to 
harmonize it with the rest of the world. It just happens that the 
European and Japanese patent systems are much weaker and offer less 
protection for the inventors. Over the years, we have had to fight back 
and have had to turn back efforts to weaken the patent system a number 
of times, and I have been part of that effort and part of that 
struggle.
  I remember when, for example, they had a bill--it was so blatant that 
we defeated it--called the Patent Publication Act. They said, after 18 
months, if someone hasn't filed for a patent, even if he were not going 
to get his patent, they were going to publish his patent application, 
meaning all the secrets would be out in the world. They tried to push 
that over on us. We just barely defeated that, but we defeated it in a 
bipartisan effort that was led by Marcy Kaptur and me, Chris Cox, Tom 
Campbell, and others at that time.
  Then there was the effort, of course, to say that, as soon as one 
files for a patent application, after 20 months, the ticking of the 
clock starts, and you could end up then with maybe 5 years of patent 
protection by the time it was issued.

                              {time}  2130

  Here we had always said 17 years after you are given the patent you 
then lose control, but you have 17 years where you own your patent. 
They tried to change that and could have changed it in a way that 
somebody, if it took the Patent Office 15 years or 10 years to develop 
a concept of a new idea and to figure out how to patent it, well, then 
that person would only have 2 years left.
  These were the ways that they were trying to destroy the patent 
rights that our people have enjoyed. Sometimes we turned those efforts 
back, other times we had to compromise, and other times, like last time 
around, we lost. For example, over our objection this body changed the 
fundamental principle that patents were to be given to the first to 
invent. If someone has invented it, they should be given the patent. 
That has been the fundamental guiding post ever since our country was 
founded. We changed that last year. We changed that to say, not first 
to invent, but the first person who files for the patent.
  Of course, at an age when you have people who are able to sneak in on 
your computers and there are hackers around, that could turn out to be 
a catastrophe. Already we could hear rumblings of that from China where 
patents are being churned out and patent applications are being put in. 
And, yes, if they can prove they were the first one, and even if they 
found out about it some other way and can't explain it, no, they get 
the patent over the people who have done the work.
  Well, once again I find myself fighting for the small inventors and 
struggling to defend the patent rights of these people to own and 
control their own invention. What we have got now is a bill that has 
been introduced and that is just making its way. There will be a 
hearing on it tomorrow in the Judiciary Committee.
  There has always been an excuse to change the fundamentals of the way 
our system works, because we have had the strongest patent system in 
the world and they have always tried to

[[Page 16283]]

find some excuse of changing it and there is some sinister force at 
play that demands that we change the fundamentals of our patent system. 
Well, we have heard it before.
  For example, they claimed there were ``submarine patents.'' That is a 
derogatory term. A submarine patent, that must be undercover or 
something suspicious about that. They used that as an excuse to try to 
limit the time people owned their patent. They used that as an excuse 
to publish everybody's patent application even before it was issued.
  This time, the new word, the new bugaboo that they are talking about 
and the scary word for the day is ``patent troll.'' ``Patent troll'' is 
being used as a word--and they probably hired a very sophisticated 
public relations company to come up with that ``patent troll'' term--
they have been used to fundamentally change our patent system, again, 
in order to diminish and damage the rights of small inventors. They 
can't say that that is their purpose, so they have to come up with a 
scary word like ``patent troll.''
  These so-called patent trolls are patent holders or they are 
companies which represent patent holders, meaning people who own 
patents. They are engaged in defending the rights of those patents that 
they own. They purchased these patents or their companies purchased 
these patents basically from small inventors who didn't have the 
resources to defend and to enforce their own patent rights. These small 
inventors are now the partners of some of these companies or some of 
these individual investors. But it comes down to this: the inventor or 
the investor owns those patents. If you buy a piece of land or a patent 
from someone, you have that right. These patents that they own are just 
like any other patent granted by the Patent Office.
  But huge corporate infringers would have us believe that these 
patents are in some way unfair or evil. So what makes these patents 
different than the good patents that these very same corporations own? 
There are no differences. They are the same patents, the same kind of 
patents. Some of these multinational corporations have bought patents 
from small inventors. They own that and they enforce them through a 
type of legal action when they are infringed upon. The multinational 
corporations have coined the scare terms ``patent assertion entity,'' 
or PAE; they have coined ``nonpracticing entity,'' NPE; and, of course, 
all of that means ``patent troll.''
  The PR blitz, as I say, which was obviously created by a public 
relations company who made a lot of money coming up with that 
boogeyman, is used to change the basic legal protection of American 
inventors and, yes, change the legal protection of people who have 
bought the legal rights and own the intellectual property rights that 
they bought from the inventor.
  I suppose Halloween is the proper time to talk about scary trolls. 
How frightening. The so-called patent troll has been identified as 
being out for a profit from technology that he did not invent. My, my, 
someone who is trying to receive a profit by making an investment into 
something that they didn't build themselves. Huh? Doesn't that describe 
banks and insurance companies and everybody else who puts investments 
down and hopes that they are going to have a return from those 
investments? But they, themselves, aren't making anything. They are 
using money and paper and contracts and helping people who need help.
  I have consulted with a number of outside individual inventors and 
groups, and they have reaffirmed that the legislation being proposed by 
the Judiciary Committee further disadvantages the little guy against 
the deep-pocketed, multinational corporations. This is achieved in the 
guise of targeting the so-called patent trolls. Pay attention to the 
patent trolls, but don't pay attention to how this weakens the small 
inventor.
  This means that persons or companies who have contracted with 
inventors who really need the help to see that his or her patent rights 
are respected are going to be undercut. How horrible it is of making 
business out of helping small inventors see to it that their patent 
rights are enforced.
  Proponents of this legislation are covering up the fact that they 
have stolen someone else's patent rights and now want to change the 
system so they can get away with it so that someone whose patent rights 
they don't own, that they have blatantly just arrogantly grabbed and 
put into their own technology projects, that they don't have to pay for 
it. When they are challenged in court, they complain, Oh, this is a 
patent troll. No. What we have here is large companies who are willing 
to take from the little guy which will in the end, yes, maybe be of 
short-term help to those companies, but it will undermine the progress 
of the United States of America, undermine our ability to create a 
wealth in our society that will make sure that our people can out-
compete foreigners. Most of the corporations who are complaining about 
this are multinational corporations run, of course, by Americans, 
sometimes not.
  Often the only way that a small business inventor can enforce his 
patent rights is by hiring a patent assertion entity as an advocate, 
meaning a patent troll. Sometimes the big guys want to simply steal the 
idea and say, sue me, because these little guys, these small inventors, 
the mainspring of so many ideas, they don't have the money to fight the 
big corporations. Now the big corporations want to make it impossible 
for them by changing the very law that protects them and protects what 
they have created in their invention.
  One of the biggest alleged crimes of these nonpracticing entities is 
that they don't actually make anything, but just shift money around. 
Like I say, how horrible that is that some people make money in our 
society although you can't really see what they actually make with 
their hands. Banks, lawyers, investment companies, insurance companies, 
well, they make money, but they don't necessarily make things, but they 
are important to our economy. Even more important to our economy are 
those inventors. If we change the rules so that big companies can steal 
from them, those inventors will not be there in the next generation to 
come with the creations that uplift our people and defend our country 
and permit us to have security and prosperity.
  We are told that trolls are different. Well, let's put it this way: 
the trolls are different. They are trying to make money off something 
they didn't actually make themselves. They aren't trying, as our 
multinational corporations are trying to do, to infringe on other 
people's property rights. Look who is pointing the fingers. The 
arrogance of these megacompanies warning us against small investors 
having the help of some investor is nauseating.
  These attacks on the rights of patent holders are seen as valid and 
virtuous, but if they happened against any other rights, they would be 
identified as the problem they are.
  Remember the big groups that are angry because they used patented 
technology without paying the owners, justifying it on the idea of the 
lack of the owner's enforcement. These companies say, Well, the patent 
wasn't being enforced, so we can use it. Now they are really upset when 
someone wants to enforce that patent. Now the rights for the patent are 
being enforced by someone who paid the inventor to sell him that 
property right.
  A landowner who chooses not to develop a farm or land could be 
described as a nonpracticing entity. Should we make it simpler and 
easier for others to take or steal the land because that owner isn't 
using it? Should we make it harder for him to continue to own his land 
simply because he doesn't use it or isn't using it like others would 
want him to? How about a music lover who purchases the rights to a song 
or an entire catalog of an artist's songs, should we make it hard for 
him to defend his ownership rights because he wasn't the musician, he 
didn't make the music himself?
  This campaign by multinational corporations and some of the world's 
richest men is an attack on the little guy's right to sell his 
intellectual property or to partner with someone else who

[[Page 16284]]

can help him defend what is rightfully his.
  While I don't have time to go through all of the problems of this 
legislation point by point, I will refer to several problems brought up 
in this bill.
  The claim that this legislation is designed to go after patent 
trolls, to make these patent trolls more accountable, that is what they 
claim, but how are they doing it? They are doing it by making it harder 
for every patent holder to defend his patent rights, every ordinary 
American. They claim they are making it easier and less costly to 
defend baseless claims of patent infringement. Well, they claim these 
are bad patents that should never have been issued. They claim many 
things.
  Section 3 of this bill, for example, makes it easier to defend 
against false charges of patent infringement, but it also adds 
significant new burdens onto a patent holder who seeks to defend, 
rightfully seeks to defend, his patent rights. In addition, this 
section increases the potential downside risk of suing to defend one's 
own patent rights.
  We should be doing everything we can to make the system quick, cheap, 
and simple to defend, both to defend patent rights and to defend 
against baseless charges of infringement. But this legislation is 
primarily geared toward making it harder, more costly, and more time 
intensive to file claims of infringement. That is exactly the wrong 
direction to take.
  The added pleading requirements will also require a very thorough and 
expensive prefiling discovery processes, again, discouraging 
underfunded patent holders from defending their patents. While there 
are limitations on a fishing trip type of discovery that may hold costs 
down and also protect patent holders from discovery IP, those 
protections don't overcome the provisions which make it more difficult 
to defend perfectly respectable patents.
  In addition, by moving to what is essentially a ``loser pays'' 
system, which is what this legislation is attempting, the little guy is 
once again put at great risk when suing a big corporation for 
infringement. So now the inventor who is being victimized may have to 
risk everything that he owns to pay the legal fees of his much better 
financed corporate infringers.
  This concept of fee shifting is alien to this country's history but 
very common in Europe. It has been demonstrated to have a chilling 
effect on litigation at the expense of the rights of those who can't 
afford to sue because they can't afford to lose.
  The corporations, they can afford to lose. They are not personally 
having to pay anything; but the small inventor, he will lose everything 
in his life if he loses. He will owe them that much money. The big 
corporations, of course, are very capable of handling their own legal 
fees.

                              {time}  2145

  Section 4 requires a patent holder who believes they are being 
infringed upon to disclose all of his partners, assignees, and other 
information to court and to the Patent Office as well, and to the 
accused infringers. Well, what we have then, if you sue somebody 
because they are stealing your intellectual property, you have to give 
up all of your privacy rights and from that point on, you are an open 
book to anyone who is your competition, anyone who is your adversary, 
and they will probably, as we see happen with large corporations, you 
now are wide open to victimization by the corporates.
  Section 5 seems to repeal a current provision that guarantees a 
patent holder's right to sue a State, for example. If a State or the 
government infringes on your patent, there seems to be a provision in 
the bill that could say that you can't sue to get paid for what the 
government has stolen from you. That, of course, has to be looked at, 
and looked at by the court.
  Section 9 claims to make technical corrections to the bill, but they 
make sweeping, wholesale changes to the way patent applicants and 
patent holders are allowed to pursue their rights. One of these so-
called minor corrections entirely removes section 145 from the law, 
which allows patent applicants to bring suit in civil court if they are 
not getting due consideration at the Patent Office. In other words, if 
the government employees at the Patent Office are blatantly not doing 
their job for some reason, whether it is corruption or incompetency, 
the patent applicant now by this rule, by this bill, will not be able 
to seek justice in the court system. This is totally inconsistent with 
what our national tradition is all about.
  Removing section 145 concentrates all decisional power within the 
Patent Office, with the exception of an appeal to the circuit, which is 
required to give deference to the Patent Office through that process. 
That is exactly the opposite of what we want to do. We want to make 
sure that people have a legal right, if our government is off base, to 
appeal it to another branch of government. That's why we have the 
judicial and the legislative and the executive branches of government. 
Here again, part of the bill is going in exactly the wrong direction.
  A review of this legislation titled ``A Small Business and Startup 
Perspective on the Goodlatte Patent Bill,'' this is an analysis of the 
patent bill that we are talking about:

     would gratuitously repeal 35 U.S.C. section 145, which has 
     long protected patent applicants' fundamental right of de 
     novo judicial review of adverse patentability determinations 
     by the Patent Office.

  They note here that since 1836, anybody could repeal a decision 
within the Patent Office, but now they want to take that away, diminish 
the rights of our inventors, which will mean that we will not have the 
same type of innovation and creativity that we have enjoyed in this 
country.
  All of this is being done on the notion that these evil trolls are 
driving up the number of patent litigations. An independent report from 
the World Intellectual Property Organization, as well as a study from 
the U.S. Government Accountability Office, says that is not true. So-
called trolls may be backing up the little guys, but that is not a 
major cause of litigation.
  So we have the experts telling us that their excuse is wrong, and the 
GAO suggests that there are many things we can do, but what is being 
suggested in this bill and others is going exactly the wrong way.
  The bottom line is these provisions make it more difficult for the 
patent holder to defend his rights and raises the stakes so that the 
downside of pursuing an infringement in cases becomes more costly. We 
are hurting the little guy. We are making it difficult for the 
mainspring of human progress. The ideas, the creativity of our country 
and our countrymen can be brought to play to uplift the lives of our 
people, to create more energy, to create higher quality goods, to make 
sure that we compete with the hordes of people in Africa and China and 
India.
  Instead, if we are going to do that, we have to have the best 
technology, and we are taking our great national asset of a Patent 
Office that has helped our country over the years, has helped us keep 
our country safe by producing the best defense technology, to keep 
ourselves competitive so that the average American can outproduce their 
counterparts overseas--we are now going to take what has given us that 
ability, which is the genius of our inventors, and we are going to 
squash it by giving in to corporate interests of multinational 
corporations that are not owing their allegiance to us, but instead owe 
their allegiance to their company, which they see now as an 
international company, not even an American company.
  I ask my colleagues to pay close attention to this legislation and to 
join me in rejecting this attempt to diminish the fundamental property 
rights, intellectual property rights of the American people in the name 
of some troll or some scary title that would get us away from the basic 
fundamentals of what is being proposed. I would ask my colleagues to 
join me in opposing this legislation.
  I yield back the balance of my time.

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