Howard Berman

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, will the gentleman yield?

Mr. BERMAN. Under the entire market value rule, which is in this bill, the Wright brothers, every value of what was created was those surface controls.

Mr. BERMAN. I thank the gentleman for yielding, and I would like to yield to the gentleman from Oregon for purposes of a colloquy.

Mr. BERMAN. Mr. Chairman, I demand a recorded vote.

Mr. BERMAN. I thank the gentleman, I also agree with the amendment. I would like to use the time, if you would allow me to finish the sentence, which is with respect to these important companies, that, in the biotechnology and pharmaceutical field, I just want to repeat, a number of things they want, first-inventor-to-file, not first-to-file, first-inventor-to-file, repeal of the best-mode defense, reform of the inequitable-conduct defense, are in this bill, and we intend to work with them on the damages issue between now and a final conference report to try to come to a better understanding on that very important, but very complicated, field.

Mr. BERMAN. That is a provision that I have supported, it is legislation I have introduced, it embodies and enacts a philosophy I completely agree with. All PTO fees should be kept within the PTO office to reduce backlogs, to hire qualified people, and to come to better operations of that critical office.

Mr. BERMAN. The chairman of the committee obviously will be a key member of the conference committee and indicates that he feels the same way. Reclaiming my time, I just want to make a couple of points. First, I have never said, quote, Labor supports this bill. What I said was Labor thinks a number of improvements have been made, particularly in this manager's amendment. There are other issues that concern them, that they believe we are moving in the right direction, and that they have no opposition to the passage of this bill, understanding they have other concerns that want to be addressed. The same applies for a number of pharmaceutical companies. The major institution, and they are not small guys, Mr. Rohrabacher. Opposition to this, concerns about this bill, come from large and important--

Mr. BERMAN. I thank the gentlelady, and I support her amendment. Just to review the bidding, my friend from California (Mr. Rohrabacher) over and over again talks about the flaws in this bill. Other than four Gohmert amendments on the issue of venue and one amendment from the gentleman from Iowa that was an earmark amendment, no other amendments were kept from consideration here. For all the arguments about flaws, where were the amendments to correct the flaws that they talk about? For all the notions of, we're not against reform, but this one isn't perfect, and this one isn't right, and this has some flaws, and it hasn't resolved every issue to everyone's satisfaction, nothing will, where is their alternative bill? I'm telling you, this is an issue of whether we're going to address a system that the National Academy of Sciences and so many other objective agencies have said is getting near broken or doing nothing, and I suggest doing nothing is not a good answer for a Congress that wants to keep the American economy strong.

Mr. BERMAN. Madam Chairman, first I have to say that we wouldn't be here, not only for his substantive contributions to this legislation, but because of his suggestions about the approach we should take, whether it was in full committee or as we move towards the floor in terms of working out problems that existed, and that's Chairman Conyers. He played a critical role in getting us to this point. Lamar Smith, Howard Coble, Rick Boucher, who I started this with, Darrell Issa, Zoe Lofgren, Adam Schiff, Bob Goodlatte, a number of people played key roles in all this. I don't have too much time. The staff, on an issue like this, was indispensable; they made incredible contributions. This is really complicated stuff. Perry Apelbaum who demonstrated great leadership and guidance on many issues, George Elliott, a detailee from the Patent Office who is a great resource, Karl Manheim, who decided to spend his sabbatical helping on patent reform, Eric Gorduna who spent his summer working on the committee report, countless other staff, and of course my Chief Counsel Shanna Winters. But the question is why, why are we doing this? And here are the things we are told by groups like the National Academy of Sciences and so many other organizations that are tremendously respected for their understanding of science and of our economy: One, there are serious problems in the patent system; Two, many poor-quality patents have been issued, which cheapen the value of patents generally; Three, there have been a variety of abuses in patent litigation rules that have taken valuable resources away from research and innovation; Four, U.S.-based businesses are disadvantaged because our patent laws aren't harmonized with the rest of the world. Many organizations, many groups have argued for these reforms. A quick statement about support. Every major consumer group in this country has endorsed this legislation. There is tremendous support in the financial services sector, in the high technology sector. The universities have now, University of California, which is one of the critical magnets of research and development, have supported passage of this legislation through the House. The American Association of Universities has supported moving the bill forward. And one last comment. There is one very controversial issue, aside from the ones addressed by the amendments that we have seen that are not fully dealt with, and that particularly relates to the issue of damages and the apportionment of damages. It is our commitment, my commitment, the chairman's commitment, Mr. Smith's commitment, Mr. Coble's commitment, to work with people who are concerned about that language to reach an appropriate middle ground that reforms the way damages are calculated between now and the conference committee and when this comes back to deal with that controversy. I urge strong support for this bill so we can make this historic effort, first in 60 years, move forward to ultimate enactment. I include short list of the range of groups that support this bill. The Business Software Association, The Financial Services Roundtable, Small Business & Entrepreneurship Council, TechNet, Consumer Federation of America, Consumer Union, Electronic Frontier Foundation, Knowledge Ecology International, Public Knowledge, United States Public Interest Research Group, American Corn Growers Association, American Agricultural Movement, Federation of Southern Cooperatives, National Family Farm Coalition, National Farmers Organization, Rural Coalition, Securities Industry and Financial Markets Association, Computer and Communications Industry Association, Computing Technology Industry Association, Illinois IT Association, Information Technology Association of America, Information Technology Industry Council, Software & Information Industry Association, St. Jude Medical, Massachusetts Technology Leadership Council, Inc., Hampton Roads Technology Council, Northern Virginia Technology Council.

Mr. BERMAN. I thank the gentleman for yielding. Madam Chairman, just because the gentleman says it is so, doesn't mean it is so. I have letters from the AFL-CIO, the university community, and the major centers of innovation and research in this country that directly contradict his assertion that they are opposed to the passage of this bill. The Members of this body should understand that.

Mr. BERMAN

Mr. BERMAN. Will the gentleman yield on that issue?

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. 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 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. BERMAN

Mr. BERMAN. Mr. Speaker, today marks the one year anniversary of the kidnapping of Israeli soldiers Eldad Regev and Udi Goldwasser by Hezbollah, in a brazen and unprovoked cross-border attack that also resulted in the deaths of three other members of the Israel Defense Forces. Only weeks earlier, Hamas abducted another Israeli soldier, Gilad Shalit, and killed two others in an attack carried out on Israeli territory adjacent to the Gaza Strip. These three brave soldiers--kidnapped by terrorists while conducting routine duties inside Israel--have endured over a year of captivity. They have endured a year without proper medical care. They have endured a year without their loved ones. I rise today to let the Shalit, Goldwasser and Regev families know that we stand with them in this very difficult time, and that we are all praying for the safe and timely release of their courageous sons.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, even as a young child, Jack Valenti showed signs of great leadership and oratory skills. He was a debate champion at his high school. Making good use of his natural ability to persuade and his interest in entertainment, Jack worked as a movie theater usher before enrolling in the University of Houston. After receiving his B.A., he enlisted in the Army Air Force where he participated in 51 flying missions and was honored with the Distinguished Flying Cross. Following his time in the armed forces, Jack graduated from Harvard University in 1948 with a Master's degree in business administration. Jack Valenti entered the political arena when he was invited to a reception at a Houston Hotel to meet his future mentor and friend, Lyndon B. Johnson. He was immediately inspired by Johnson, who at the time was the U.S. Senate Majority Leader. When Johnson was selected as Kennedy's running mate in 1960, Jack worked on their media campaign. He remained close to Johnson after he became the Vice President. Following the tragic Kennedy assassination in Dallas, TX, Jack was asked by then-President Johnson to accompany him to Washington where he became a special assistant and close confidant to the new President. After defending Johnson through criticism of the Vietnam War and conspiracy connecting Johnson to the Kennedy assassination, Valenti was offered a lucrative job by MCA Inc. head Lew Wasserman and United Artists' Arthur Krim as head of the Motion Picture Association of America. In this position, Valenti created the MPAA rating system which initially labeled movies into four distinct ratings: G, M, R and X. This was Valenti's crowning achievement in the entertainment industry; the MPAA system is still used today to provide guidance for movie- viewing families. During his 38 year tenure as president of the MPAA, he was extremely well known in Washington as an advocate for the entertainment industry's major issues. He lobbied for the protection of movie copyrights and the prevention of digital piracy. His voluminous and eloquent style of speaking, coupled with his unique silver hair and cowboy boots, made him one of the most recognizable figures on the Hill. His sage observations and folksy wisdom made Jack Valenti one of the most effective players in Washington. He was an advisor to Members of Congress on both sides of the aisle; and all of us fortunate enough to receive his council benefited greatly from our association and friendship with him. We all miss him greatly.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill, H.R. 1615.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, on that I demand the yeas and nays.

Mr. BERMAN. Mr. Speaker, I yield 2 minutes to the chairman of the Homeland Security Committee, the gentleman from Mississippi (Mr. Thompson).

Mr. BERMAN. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Donnelly).

Mr. BERMAN. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, I only want to make two points. The gentleman from Florida gave a discussion about the legislation and put it into the context of the Southern District of San Diego, and I just did want to note for the record that the Department of Justice that decided to recommend the U.S. attorney's termination had commended her specifically for her handling of immigration cases. And the second point I guess I wanted to make on this issue was would it be that the people in charge had ensured that the offices most impacted by illegal immigration and by illegal alien smuggling and those districts on the border of this country had been given the resources to the Justice Department disbursed to the U.S. Attorney's Office so they weren't held under hiring freezes and constrained to try to deal with an enormous issue with a very limited number of prosecutors. Mr. Speaker, I yield back the balance of my time.

Mr. BERMAN. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 2399) to amend the Immigration and Nationality Act and title 18, United States Code, to combat the crime of alien smuggling and related activities, and for other purposes, as amended.

Mr. BERMAN. Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and to include extraneous material on the bill under consideration.

Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, this legislation gives Federal prosecutors and agents stronger enforcement weapons against the most pernicious forms of human smuggling, terrorism-related smuggling and smuggling that results in kidnapping, rape or an attempt to kill. This bill is based on a provision that has been added into H.R. 1684, the Homeland Security Department Reauthorization Act, in its committee markup. The supporters of that provision agreed to withdraw it from that bill so the Judiciary Committee, the committee of primary jurisdiction, could take a closer look. The resulting bill amends both 8 U.S.C. 1324, the alien smuggling prohibition, and 18 U.S.C. 2237, the prohibition against failure to heave to, to provide for extraterritorial jurisdiction, increase maximum penalties for serious offenses and clarify the necessity defense that applies to legitimate maritime rescues. This bill applies not just to human smuggling in the maritime context, but to all cross-border human smuggling. It provides appropriately tough penalties for the kind of serious smuggling offenses I've just described, while distinguishing those from other types of transport such as noncommercial efforts to reunify families. While these practices also violate our immigration laws, they do not fall into the same category of offense, and should not be treated as harshly. Although the bill streamlines and strengthens the current offense language, it does not abandon existing case law that applies to alien smuggling offenses. For instance, it will remain a violation of Federal law both to bring illegal aliens to the United States and to bring other aliens across the border through places other than those designated as official entry ports. This is especially critical as Congress mandates that the Department of Homeland Security institute biometric entry and exit systems. For an orderly and fair immigration system to work, people must come in through these sites. The bill also prevents the current list of illegal activities, smuggling, recruiting, transporting and harboring, without adding new activities, such as assisting aliens in their efforts to enter our country. Again, this preserves the distinction between true smuggling and the work of groups such as faith-based organizations, who seek to serve the alien community on humanitarian grounds. Because this important distinction is preserved, the Judiciary Committee believes the religious activities exception in current law is sufficient, and the bill doesn't expand it. The bill also preserves current law in treating the offense of helping to bring in one's close family members as a misdemeanor. The bill also establishes for the first time in Federal law that it is illegal to transport persons under inhumane conditions, such as in an engine compartment, a storage compartment or other confined space; or overloaded or intentionally run ashore and grounded at high speed and left to scatter. Those kinds of inhumane practices have resulted in death or serious injury to numerous alien passengers. Finally, the bill directs the Sentencing Commission to consider providing further sentencing enhancements for particularly egregious offenses. Such enhancements should reach the smuggling of aliens in a life-threatening manner, the abandonment of aliens in the desert or discharging them onto spits of land that will be submerged in a high tide, or those cases that involve the facilitation of terrorism. I strongly urge my colleagues to support this bill. Mr. Speaker, I reserve the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, on that I demand the yeas and nays.

Mr. BERMAN. Reclaiming my time. And at this point I think maybe we should end the debate. But no part of Mr. Fortenberry's or my motivations for introducing the bill, and I wouldn't speculate on the Senate's motivations, but no part of our motivation was to take the administration out of an embarrassing place where they have been making promises that couldn't be kept. We thought that justice, fairness, American tradition, and the risks that these people have taken to help our Armed Forces and our diplomats in one of the most difficult, hazardous situations in the world gave them a claim that we should respond to, not a promise made by somebody that we are forced to keep. We wanted them to have these visas. We weren't responding to pressure to take the administration and their people in Baghdad out of an embarrassing situation.