Leahy Urges “No” Vote On Coburn Amendment, And Support For Clean Passage Of America Invents Act

WASHINGTON (Thursday, Sept. 8, 2011) – Senator Patrick Leahy (D-Vt.) Thursday urged Senators to oppose the Coburn amendment and support final passage, without amendment, of the Leahy-Smith America Invents Act.

An amendment offered by Senator Tom Coburn (R-Okla.) and scheduled to receive a Senate vote Thursday afternoon would violate the rules of the House of Representatives.  The Senate-passed America Invents Act (S.23) would have eliminated the appropriations process for the USPTO by setting up a revolving fund to allow the USPTO to spend all the money it collects without going through the annual appropriations process.  The provision, however, violated House Rule 21, which prohibits authorizing legislation from converting discretionary spending into mandatory spending. 

Appropriators in the House of Representatives opposed its inclusion in the Leahy-Smith America Invents Act, and instead reached a compromise to set aside USPTO collected fees in a reserve fund to be used by the Office.  Senator Tom Coburn (R-Okla.) has filed an amendment to H.R.1249 that would reject the House-passed compromise.  The Republican Chairmen of the House Appropriations and Budget Committees opposed the Senate language.

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Letter From House Appropriations Chairman Harold Rogers
To House Speaker John Boehner And House Majority Leader Eric Cantor


Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Committee On The Judiciary,

On Funding For The U.S. Patent And Trademark Office
September 8, 2011

This is an amendment that can derail and even kill this bill – a bill that would otherwise help our recovering economy, unleash innovation and create the jobs that are so desperately needed.  I have worked for years against Patent Office fee diversion, but oppose this amendment at this time.  Its formulation was rejected by the House of Representatives, and there is no reason to believe that the House’s position will change.  Instead, for ideological purity, this amendment can sink years of effort and destroy the job prospects represented by this bill. So while I oppose fee diversion, I also oppose the Coburn amendment. 

I kept my commitment to Senator Coburn and included his preferred language in the managers’ amendment which the Senate considered last March.  The difference between then and now is that the Republican leadership of the House of Representatives rejected Senator Coburn’s formulation.  They preserved the principle against fee diversion but changed the language. 

The language in the bill is that which the House devised and a bipartisan majority voted to include.  It was worked out by the House Republican leadership to satisfy House rules. The provision Senator Coburn had drafted and offers again with his amendment today apparently violates House Rule 21, which prohibits converting discretionary spending into mandatory spending.  So instead of a “revolving” fund, the House established a “reserve” fund.  That was the compromise that the Republican House leadership devised between Chairmen Smith, Rogers and Ryan.  Yesterday I inserted in the record the June letter for Congressmen Rogers and Ryan to Chairman Smith of the House Judiciary Committee.  Today I ask consent to insert into the Record the commitment letter from Chairman Rogers to Speaker Boehner.

The America Invents Act as passed by the House continues to makes important improvements to ensure that fees collected by the U.S. Patent and Trademark Office (USPTO) are used for Patent and Trademark Office activities.  That office is entirely fee-funded and does not rely on taxpayer dollars.  It has been and continues to be subject to annual appropriations bills. That allows Congress greater opportunity for oversight. 

The legislation that passed the Senate in March would have taken the Patent and Trademark Office out of the appropriations process, by setting up a revolving fund that would have allowed the office to set fees and collect and spend money without appropriations legislation and congressional oversight.  Instead of a revolving fund, the House formulation against fee diversion establishes a separate account for the funds and directs that they be used for U.S. Patent and Trademark Office.  The House Appropriations Chairman has committed to abide by that legal framework. 

The House forged a compromise. Despite what some around here think, that is the essence of the legislative process.  The Founders knew that when they wrote the Constitution and included the Great Compromise.  Ideological purity does not lead to legislative enactments.   This House compromise can make a difference and make real progress against fee diversion.  It is something we can support and there are many, many companies and organizations that do support this final workout in order to get the bill enacted without further delay, as do I.

The America Invents Act as passed by the House creates a new Patent and Trademark Fee Reserve Fund (the “Reserve Fund”) into which all fees collected by the USPTO in excess of the amount appropriated in a fiscal year are to be deposited.  Fees in the Reserve Fund may only be used for the operations of the Patent and Trademark Office.  Through the creation of the Reserve Fund, as well as the commitment by House appropriators, H.R. 1249 makes important improvements in ensuring that user fees collected for services are used by the Patent and Trademark Office for those services. 

Voting for the Coburn amendment is a vote to kill this bill.  It could kill the bill over a formality—the difference between a “revolving” fund and a “reserve” fund.  It would require the House to reconsider the whole bill, again.  They spent days and weeks working out their compromise in good faith. And it was worked out by the House Republican leadership. There is no reason to think they will reconsider and allow the original Coburn language to violate their rules and avoid oversight.  They have already rejected that language, the very language proposed by the Coburn amendment.

We should not kill this bill over this amendment.  We should reject the amendment and pass the bill. The time to put aside individual preferences and ideological purity is upon us and we need to legislate.  That is what the American people elected us to do and expect us to do.  The time to enact this bill is now.  Vote no on the Coburn amendment.  

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