Statement Of Senator Patrick Leahy On S. 23, The America Invents Act

As Prepared for Delivery

Yesterday the Senate began debate on The America Invents Act.  We adopted the Committee amendments and proceeded to have five additional amendments offered to the bill.

This morning I will be offering a managers’ amendment along with Senator Grassley that incorporates additional improvements being made at the suggestion of Senator Coburn, Senator Coons, Senator Bennet and our House counterparts, Chairman Smith and Mr. Conyers of the House Judiciary Committee.  When we adopt this managers’ amendment, I believe we will have moved very close to a consensus bill that the Senate can and should pass to help create good jobs, encourage innovation and strengthen our recovering economy.

I ask consent to include in the Record the Statement of Administration Policy from the Obama administration.  I thank all those from the administration who worked on this matter and, in particular, Secretary Locke, Director Kappos of the Patent and Trademark Office and former Secretary Daley.  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 the 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 and 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-Hatch-Grassley Patent Reform Act, or as it is becoming known, the America Invents Act.  We need to reform our patent office and patent laws to help create good jobs, to encourage innovation, and to strengthen our economy.

The reporter notes the growth of patent applications to more than 2,000 a day last year, and that 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, or the next killer app. 

We should be doing all we can to help PTO Director Kappos and the dedicated women and men of the PTO to modernize and reform.  It is crazy that it takes two years for an inventor to get an initial ruling on his or her patent application, and another year or more to receive a patent.  As The 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.”

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 on moving ahead to pass it without delay. This 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.  This 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.   

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.  This is a reform that Senator Hatch and I have long supported.  I appreciated his working with me and withholding this amendment during Committee consideration. 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 should also help improve patent quality.

We incorporate suggestions from the House about the removal of certain damages and venue provisions that are no longer necessary in light of recent court decisions, such as the so-called gatekeeper provision.  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.  I hope that we will be able to move to adopt those amendments without delay, as well as my amendment to conform the name of the legislation to the American Invents Act.

I understand that 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.

Those are matters concerning this legislation that we can consider and resolve without undue 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 to amend the Constitution of the United States.  The bipartisan America Invents Act is too important to be turned into a mere vehicle to launch speeches and debates about pet causes.  This is not the bill to have debates about whether if the U.S. were to reach its debt ceiling the Government should favor paying creditors like the Chinese before meeting its other obligations to the American people.  That theoretical debate has nothing to do with the patent reform in this bill.  In fact, this bill is one that does not spend taxpayer 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 that we can complete our work on this legislation and serve the interests of the American people. 

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