Henry Hyde

Mr. HYDE

Mr. HYDE. They have freedom in this country. Freedom.

Mr. HYDE. Mr. Chairman, I move to strike the requisite number of words. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. HYDE. Mr. Chairman, I want to direct my remarks to my dear friend, the gentleman from California [Mr. Hunter], who is one of the great consumers of venison in this or any other Congress. I am proud, too, as the gentlewoman from California [Ms. Lofgren] stated, of the number of Nobel Prize winners in the United States, but I just am uncomfortable with that kind of a chart, because what it seems to be saying is that Occidentals are smarter than Asians. It is kind of a racial bias to say that some groups, some races, some ethnic clusters are smarter than other people. I do not know what else we can draw from that. I went and looked up all the Nobel Prize winners in chemistry, physics, medicine, and physiology from 1981 to 1995, and, yes, the United States had 57 percent of them, but 43 percent were foreigners from all over the globe. All over the globe. Of course, it is a Swedish prize, given up in Stockholm by a group of Occidentals, I guess. I would not claim Asiatic bias, and I know they know where Japan is, but I would just hesitate saying one group of people are just smarter than another group. I know that just because someone is paranoid does not mean people are not after them. That could be true. But I have detected some awfully serious Japan bashing here, and I am surprised, because what we are aiming for in H.R. 400 is what the Patent Commissioners of President Ford, President Reagan, President Nixon, President Bush all wanted, 18 months publication, which protects the inventor because he has provisional rights as against the world as though he had a patent and can enforce it. But it forces the foreign inventor who wishes to be protected in our country to get published, too, that 45 percent of applications from overseas to be published, too. And in addition, those submariners that are cruising under the bottom have to surface and they cannot seduce other people into investing money and then finding they are in the middle of a lawsuit.

Mr. HYDE. I yield to the gentlewoman from California.

Mr. HYDE. I yield to the gentleman from California.

Mr. HYDE. I remember Wernher von Braun. He had an accent, but he was certainly a brilliant scientist. He came over here. A fellow named Einstein did pretty well.

Mr. HYDE. Mr. Chairman, I move to strike the requisite number of words, and I yield to the gentleman from Michigan [Mr. Conyers].

Mr. HYDE. Mr. Chairman, I have the time.

Mr. HYDE. Mr. Chairman, I thank the gentleman. I would just like to point out to the gentlewoman from Ohio [Ms. Kaptur], a fine Member of this House, that there is form and there is substance. The form is certainly the Kaptur amendment. The substance, however, in my interpretation, as I read it, is Rohrabacher. Why do I say that? Because under the gentlewoman's amendment, publication of the pending application could occur only if the application has been pending for more than 5 years. Boy, does that protect the submariner. Five years. That is a lifetime in the computer industry, in the biotechnical industry, in the pharmaceutical industry. Five years one can lurk underground, under the surface of the water. And there are other conditions which echo the Rohrabacher amendment, which we debated last week.

Mr. HYDE. I yield to the gentlewoman from Ohio.

Mr. HYDE. Mr. Chairman, I think this could be boiled down very simply. We have a mind-set that thinks publication is an open door to thievery and to stealing our secrets. There is another philosophy, it is in our Constitution. It says that if you want to get a patent, that gives you exclusive rights to your invention for a period of years, and then the tradeoff for that exclusivity is disclosure to the world, so the world may benefit from this wonderful insight that you have now patented. That is the tradeoff. Publication is the disclosure so the world may benefit, but meanwhile, you have a period of years for which you may exploit fully your rights to the patent. That is the tradeoff. Publication is protection, because once your idea is published it is notice to the world you were there first; you have been there, you have done that, and it is yours. If anybody wishes to infringe on your rights, which are called provisional rights, not a patent yet but equivalent to a patent, they are subject to damages. So you are protected. Meanwhile, Mr. Chairman, the foreign inventor, and 45 percent of the applications in our country, where we produce all these Nobel laureates, most of whom have an accent, not all, most, we then publish in our country, as they publish over there, so we all have that so- called level playing field. But the most important thing I want to say, Mr. Chairman, is that we have seen that CRS report waved around as often as we have heard about hangnails or toenails. I think this argument needs a pedicure, I would say to my friend. By the way, speaking of the amendment offered by the gentlewoman from Ohio [Ms. Kaptur], there is an old Italian saying, you may dress the shepherd in silk, he will still smell of the goat. Mr. Chairman, the CRS report which the gentleman so proudly has waved I would point out has been critiqued by the American Intellectual Property Law Association, which represents nearly 10,000 international intellectual property lawyers, and they say, for reasons about which we can only speculate, H.R. 811, the bill of the gentleman from California [Mr. Rohrabacher], as reprised by the gentlewoman from Ohio, considerably strengthens the abuse potential of a submariner wishing to keep a patent application secret. Under one section of H.R. 811, publication of a pending application could only occur if the application has been pending for more than 5 years. We can grow an awful lot of submarines under the water in 5 years.

Mr. HYDE. The gentlewoman protects the submariner. She really protects and enhances the submariner.

Mr. HYDE. Mr. Chairman, that 5 years leaps out from the gentlewoman's amendment.

Mr. HYDE. I thank the gentlewoman.

Mr. HYDE. I would suggest to my friend that if she does not want it ever published, she wants to keep it a secret in perpetuity, do not ask for a patent. Keep it as a trade secret and get protected under the trade secrecy laws. But if she wants a patent it has to be published. She is protected while it is published, and then the patent protects her, and then the world may benefit from her wonderful invention.

Mr. HYDE. Mr. Chairman, this is just kind of a passing comment. The gentleman from California [Mr. Rohrabacher] talked about countries that wanted to destroy us economically. I searched the globe, and I see all of these countries wanting to trade with us. They like our markets. They do not really want to destroy us economically. They would like to get an advantage, but destruction, I do not think that is part of their agenda.

Mr. HYDE. Mr. Chairman, I ask unanimous consent that the gentlewoman from Ohio have an additional minute.

Mr. HYDE

Mr. HYDE. Mr. Speaker, at an early age Dick and Mary Jane Wessell arrived at the same conclusion: both wanted to write for newspapers. When they finally met while studying together in the early 1940's at Lake Forest College, Dick was the editor of the college newspaper, and Mary Jane wrote feature stores. A bond of mutual friendship and love was formed. Today, the Wessell family celebrates 50 days of service to the northwest suburbs. It was in early 1947 that Dick and Mary Jane, the college sweethearts who married shortly after graduation, scraped together moneys saved from Dick's navy service in World War II and Mary Jane's employment with the U.S. Government, and purchased the Des Plaines Journal. What the Wessells purchased was a single weekly newspaper. During the course of the next 50 years, the Wessells, with help from their 6 children and 13 grandchildren, expanded the business to 17 prize-winning newspapers serving 28 suburban communities. Dick started his career, in neighboring Park Ridge in June 1935, as a reporter for Pickwick Newspapers. A political science major in college, Dick has never lost his interest and respect for the political process. He served 2 years in 1968-70 in Washington with then-Senator Birch Bayh of Indiana; and he worked on the campaigns of former Gov. William Stratton, the late Senator Paul Douglas and Lt. Gov. John W. Chapman. Mary Jane earned her degree in English and wrote a travel column for Journal & Topics Newspapers for 35 years in addition to her vital duties as an equal partner in the family business. I extend to the entire Wessell family my heartiest of congratulations on this very special anniversary.

Mr. HYDE

Mr. HYDE. Mr. Chairman, the gentleman is asking that the patent examiner have an astrological gift to be able to tell whether or not what one is doing is gaming the system. There is much more to say, I sense an impatience in the Chamber. And not wishing to dull my antennae any more than they are, I hope my colleagues will support 400. I hope my colleagues will tell the gentleman from California, [Mr. Rohrabacher], he is a swell guy but has a lousy bill.

Mr. HYDE. Mr. Chairman, I thank the gentleman for yielding me the time. I will not spend time congratulating everybody, but I do in a blanket way because everybody connected with this issue and this debate on both sides, even the gentleman from California [Mr. Campbell], Professor Campbell, I congratulate. If my colleagues do not think submarine patenting is a serious problem, and it has been diminuendo by some on the other side, let me quote from a witness before the subcommittee of the gentleman from California [Mr. Rohrabacher], a gentleman named Bill Budinger, an independent single inventor who had his own little company, Rodel Company, and here is what he said to Mr. Rohrabacher's committee: ``I have heard people say there is no such thing as submarine patents, and to borrow a phrase from earlier, I think the folks that say that are either naive or disingenuous. Here is a list of 300 patents that were issued in the 2-year period before the law changed,'' that is 1994. ``Each of these patents will monopolize a segment of American technology for a period of 25 years or more. They are going to provide a minimum of 25-year monopolies and some of the monopolies here are 40 years. Every one of these patents is issued to and owned by a foreign corporation. So these folks learned how to game the system.'' Now, submarine patents are not the only reason we are here with this bill. Do you not understand that we need access to foreign inventors' ideas? They come over and register and file their applications in our Patent Office, and we do not get to read them. We do not get to see them in English. Whereas our patents, our applications are filed in Japan, filed in France, filed in Germany, and after 18 months, they are published there. So we ought to have parity with foreign inventors; 45 percent of the applications for patents are filed by foreigners in this country. We saw a rather embarrassing list of Nobel Prize winners but they may not have the technologists. They have the inventors, 45 percent of them. Small business is protected. Small business can opt out. Small business cannot be published until after two office actions. That means you are going to get your patent. Then you have 3 more months when you are not published. That is a different treatment from a so-called big business. Let us dispel the notion that publication is a betrayal of our secrets. Publication is protection. There is an animal called provisional rights that arises as soon as your publication occurs. It is the same as though you had a patent and, once your idea has been published, it is yours. It is notice to the world, I thought of it. I thought of it first, do not tread on me. And not only that, but if anybody tries it, they are liable in damages for infringement. So there are provisional rights. Do not tread on me, and it also is an advertisement to investors who might say, hey, this guy has got an idea. I might want to invest in this. Every patent commissioner except one who is working for the other side has come out for H.R. 400. The Nixon, Ford, Reagan, Bush have all signed a letter saying we like 400. The Clinton administration says, we like 400. And so if it is good enough for them, it ought to give us pause if we do not think we want to support it. The gentleman from California, [Mr. Rohrabacher], God love him, says his bill, and he has a CRS report. If I were the teacher, I would give that about a D minus because it misses the mark horribly, horribly. The gentleman from California, Mr. Tom Campbell, a fine lawyer, I just want to ask if he really thinks this eliminates the submarine patent. Under the Rohrabacher amendment, you cannot publish for 5 years. Let me put the question this way: Have you ever spent 5 years in a submarine?

Mr. HYDE. No, Mr. Chairman. No, the other amendments will stand on their own, and we will probably get to them next week. It is simply trying to get the important amendment, if the other offerers will forgive me for downgrading their amendments, and get it out of the way and have an idea when we can secure because people would like to leave.

Mr. HYDE. Yes, Mr. Chairman.

Mr. HYDE. Mr. Chairman, I have a unanimous consent request that I would like to present to the House, but I would like just to say about those Nobel Prize winners, a lot of them have foreign accents, the ones I have met anyway. Mr. Chairman, I ask unanimous consent that, when we finish with this manager's amendment, which I pray will be soon, I pray it is imminent, that debate on the Rohrabacher amendment and all amendments thereto be limited to 2 hours equally divided between proponents and opponents, the time to be controlled by the gentleman from California [Mr. Rohrabacher] and the gentleman from North Carolina [Mr. Coble] and that they be permitted to yield blocks of time.

Mr. HYDE. Mr. Chairman, this is about submarine patenting, and lest anyone be confused, a submarine patent is an application made by somebody who does not really want a quick and speedy issuance or grant of a patent. He wants to keep his application alive below the surface, hoping that somebody else will come along and start marketing, start manufacturing, start using an idea which is a part of his application. Then he surfaces suddenly, periscope up, and sues. That may sound convoluted, but there are people making millions and millions of dollars, and the only way to effectively dispel that gaming of the system is to expose the applicant to publication after a reasonable length of time. Eighteen months has been determined by the world and us to be a reasonable length of time. The gentleman from California [Mr. Rohrabacher], claims that his substitute effectively dispels the submarine problem. That is, forgive me, nonsense. Here is how he dispels the submarine problem. His amendment provides for publication no sooner than 5 years after the filing date, but not even then, if the submariner files an appeal, which may or may not be legitimate. That is a way to stretch this thing out. So under his curative amendment, submarines must surface after 5 years. That is a lifetime in the computer business. That is a lifetime in the pharmaceutical business. That is a lifetime in the biotech industry. It is just no cure. I just think it is a convoluted way to continue gaming the system. We have heard about stealing secrets. My God, we Americans are so brilliant and we invent these things and we clutch them to our bosom and nobody is going to steal them. Well, the problem is, if you want to be protected in Japan, if you want to be protected in France or Germany, you have to file over there. And if you file over there, you are going to be published in 18 months. On the other hand, 45 percent of the applications for patents in our country are from foreign countries, foreign inventors, rather, and they are not published under our present law, so we cannot see what they are doing; but, boy, they can see what we are doing. Now, after publication, which is a healthy, good thing, not a poisonous thing, publication gives rise to what are called provisional rights, which means after your idea has been published but before you get a patent, you have rights which are enforceable in damages should somebody steal your idea and infringe your patent. So those things have to be taken into consideration. This patent law is esoteric. It is difficult. But it is darned important to our economy and it is critical to our international competitiveness. I have heard language I expect to hear in the early 1940s about this country can go it alone, we are not involved in an international trade situation. Oh, yes we are. And this committee, the Committee on the Judiciary, has been involved in hearings and the study of this legislation for 3 years. There have been full and open hearings on this issue, and we have heard from scores of witnesses. Mr. Chairman, the committee has marked up the bill twice, and both times key improvements were made to address the reasonable concerns of the parties involved. I ask that Members consider the fact that the Committee on the Judiciary has produced a bill that has twice been unanimously approved by voice vote. Yes, the United States is the world's largest producer of intellectual property, but this success is dependent on a rational and sound and modern system of protection. To stay on top of an ever- changing technology and ever-changing economy, we have to make a number of changes in our patent code over the years. And we cannot ignore what is going on overseas. First, in an era of unprecedented competition, the intellectual property industries have emerged as an area of American strength; and, second, technological innovations, especially in the areas of biotechnology and computer science, have increased substantially. Today there are more than 1,300 companies employing more than 100,000 Americans in the biotech industry. That is just one industry that would not exist if we did not have strong patent protection.

Mr. HYDE

Mr. HYDE. Mr. Chairman, on my parliamentary inquiry, I yield to the gentleman from California.