Marcy Kaptur

Ms. KAPTUR

Ms. KAPTUR. Mr. Chairman, I did not use that term.

Ms. KAPTUR. Mr. Chairman, will the gentleman yield?

Ms. KAPTUR. Mr. Chairman, I thank the gentleman. I wish to ask the Members to please read the substance of our amendment. The sidetracks that this debate has gone down this afternoon have amazed even me. I wanted to state for the Record that there are many university scholars, inventors, lists long that have written us in support of our legislation against the base bill and, of course, many of them are in a precarious position because those universities receive funds from some of the very same interests that are promoting H.R. 400 and in many ways not being sensitive to the smaller inventors, the smaller businesses, those individual inventors that we wish to protect and give fair standing to as this measure moves forward. Our amendment essentially would attempt to protect those inventors' patents prior to issuance. We do not want any invitation to copy, which H.R. 400 certainly promotes, because it says that within 18 months, that patent would be published even before it is granted. Right now an individual is protected until the time that the patent is issued, until it is granted. So it is a substantial collapsing of the protection time for an individual inventor. I find it so interesting to listen to the proponents say, well, in our system you can litigate. That is easy for a big corporation. IBM, Xerox, Ford Motor, why they are some of the best friends of this country in the jobs that they provide, and so forth. But the point is they are not the only inventors around. There are a lot of small workshops. There are a lot of professors that are out there filing. There are a lot of independent inventors who do not have the kind of financial wherewithal to function in the system that is being created here. It is no different than the battle between the megabanks and the credit unions. It is no different than the battles that we have between the Committee on Commerce and the Committee on Small Business. It is the very same issue for small inventors, for independent inventors, and those who are not independent, who have other sources of finance to back up whatever it is they are trying to protect and advance through that Patent Office. So our amendment essentially exempts small business under the definition of the Patent Office. It says, hey, look, give them equal footing. Do not make them play under this system, which is very difficult for the small inventor to cough up the cash for. It does not subject them to the kind of litigation that is likely to be involved here where it is more likely that their ideas and their patent will be infringed upon through the processes that are being promoted in the base bill. Our measure also would try to acknowledge that the base bill does not distinguish between large and small inventors. So it really is an equity question for us. We would ask Members to support the Kaptur amendment to create a level playing field, support the small business person. Support the small inventor. Support your colleges and universities. Support the little guy. Do the right thing. Make this bill better. I know the chairman of the full committee wants to do that. I know the ranking member wants to do that. The Kaptur amendment accomplishes that.

Ms. KAPTUR. Mr. Chairman, if the gentleman from Virginia's statement is correct, then why does H.R. 400 embody the Japanese agreement?

Ms. KAPTUR. Mr. Chairman, will the gentleman yield?

Ms. KAPTUR. Mr. Chairman, I note that none of the proponents of H.R. 400 are willing to stand up and explain about this agreement with Japan and how that is driving this debate and what is the relationship between that and these.

Ms. KAPTUR. Mr. Chairman, will the gentleman yield?

Ms. KAPTUR. Mr. Chairman, if what the gentleman says is true, then why are all the small business groups of the United States opposed to his proposal: the Small Business Legislative Council, the Small Business Technology Coalition, the National Association for the Self- Employed, the National Patent Association, National Small Business United. If your idea is so good, then why are the small guys who cannot afford suits on the international scene, why are they opposing the bill?

Ms. KAPTUR. Reclaiming my time, Mr. Chairman, nobody is complaining about the current system. People like the protection attendant with the current system. Inventors are not breaking our doors down and coming through the windows asking for these changes. There are a few multinational corporations that want to do a little snooping. And they are famous for buying out inventions of inventors in this country. You know how the current system works. Why would you want to advocate for them rather than the vast majority of inventors who want to have their rights protected.

Ms. KAPTUR. Mr. Chairman, if the gentleman will continue to yield, does the gentleman deny that the content of that agreement is now the driving mainline inside of H.R. 400? The rollback?

Ms. KAPTUR. As I mentioned to the gentleman, when you file in Europe or you file in Japan, you file a generic patent. You do not file the kind of detailed patent that you do in this country. We have a different kind of patent system, and the proof is in the pudding. Look at this country compared to the places that we are competing with. So it seems to me that we should be about the task of saying, if we have created a good system, how do we make the system here function better for our people rather than getting ourselves into a position where we are arguing to rubberstamp an agreement that is going to harmonize the United States with countries whose systems are flat, who commercialize the inventions made here, and we will disadvantage our own people by getting them caught up in all types of litigation. Why are we making it harder for the people of the United States to protect their intellectual property? Mr. Chairman, I submit this for inclusion in the Record. Mutual Understanding Between the Japanese Patent Office and the United States Patent and Trademark Office Actions to be taken by Japan: 1. By July 1, 1995, the Japanese Patent Office (JPO) will permit foreign nationals to file patent applications in the English language, with a translation into Japanese to follow within two months. 2. Prior to the grant of a patent, the JPO will permit the correction of translation errors up to the time allowed for the reply to the first substantive communication from the

Ms. KAPTUR. I yield to the gentleman from Virginia.

Ms. KAPTUR. Mr. Chairman, I move to strike the requisite number of words. I listen to this discussion about why we have to do things in this country to benefit foreign inventors, Mr. Chairman, and I think they should be helped, but not at the expense of our own people. The truth is that if our country has 10 times as many intellectual breakthroughs as any other country in the world, why do we want to conform our system to countries that are not working as well as ours? The gentleman from Virginia said something about that our inventors need to see all this information from other places, but they are not clamoring for this. We have more inventors in our part of America, and we are the State of Thomas Alva Edison. They are not asking for this to be done. What they are asking for is their property rights be protected, and that their inventions not be opened up to snooping in the 18-month window that the gentleman is talking about, there, that after that they can take a look; for whichever country in the world or whichever inventor in the world wants to take a look at that, and really have special privilege over that intellectual property, which has never been granted by this country before. If we talk about what other countries do, if you file a patent in Germany or one in Japan, you do not file the kind of detailed patent that you do in this country. We require so much more of our inventors. What is interesting, I just have to put this in the Record, and I am going to ask unanimous consent that it be placed in the Record, what is driving this entire debate, the amendments, the base bill, is this agreement that our government got itself locked into back in January 1994 called a mutual understanding between the Japanese Patent Office and the United States Patent and Trademark Office. Mr. Chairman, this is not something that is not significant. This is very significant, because what the United States agreed to is exactly what the proponents of H.R. 400 are trying to get us to pass here. Essentially it says that our Government had to come back to the United States after agreeing to this and agree to introduce legislation to amend the U.S. patent laws to change the term of patents from 17 years from the date of grant of a patent, which has been our current law now, for an invention to 20 years from the date of filing, which is the change that the proponents of H.R. 400 obviously want. What did we get for this; for changing, turning upside down the system that has created 10 times more inventions, better inventions, intellectual property breakthroughs, than any other country in the world? What we got was an agreement from the Japan Patent Office that says the following; that they would permit foreign nationals to file patent applications in the English language, with a translation in Japanese to follow within 2 months. So what we agreed to was to turn the entire system that drives job creation in this country and has created the standard of living in this society, and what we get is a little teeny, weeny agreement from Japan that they are going to agree to translate the patents that are filed into their own language. Mr. Chairman, it seems to me there is something very uneven about this playing field, and for those Members that were not a party to these negotiations, if the staffs have not informed the Members of what is going on here, let me tell them, we are talking about a wholesale gutting of the patent laws that have protected the intellectual property of our inventors. This has not been talked about much in the debate. Our system is completely different than these other countries, but what is wrong with our current system? Why is it so bad? Have these Members' inventors actually been beating their doors down and asking for changes? The only changes my inventors back home have been asking for is to make the maintenance fees more easily payable for them. They are getting too high for the small people, for the small people. What H.R. 400 does is opens up the possibilities of litigation to the small people, which are the people that are creating the new jobs in this country, making life much more difficult for them, and we get almost nothing for it. I would hope that one of the proponents of the legislation could explain to me how this is an evenhanded deal for the United States, that they are out here. I would hope the gentleman from Virginia [Mr. Goodlatte] would respond.

Ms. KAPTUR. Mr. Chairman, I yield the balance of my time to the gentleman from California [Mr. Campbell].

Ms. KAPTUR. Mr. Chairman, I move to strike the requisite number of words, and I yield to the gentleman from California [Mr. Rohrabacher].

Ms. KAPTUR. I yield to the gentleman from Illinois.

Ms. KAPTUR. Mr. Chairman, will the gentleman yield?

Ms. KAPTUR. Mr. Chairman, the gentleman in the well is referencing this amendment under the name of another Member. This is an amendment offered by the gentlewoman from Ohio [Ms. Kaptur].

Ms. KAPTUR. Point of order, Mr. Speaker.

Ms. KAPTUR. I yield to the gentleman from California.

Ms. KAPTUR. Mr. Chairman, if the gentleman will continue to yield, you are protected until such time as that patent is issued, and certainly with the courts and system we have in place, after that patent is granted. What the committee is seeking to do, and why we in this amendment try to protect small business and small inventors, is lessen the time that they have that protection.

Ms. KAPTUR. If the gentleman reads correctly what our amendment does, that is only one of five different ways in which we try to get at the submarine problem. I think the gentleman is incorrect.

Ms. KAPTUR. Mr. Chairman, I demand a recorded vote.

Ms. KAPTUR

Ms. KAPTUR. Mr. Chairman, the base bill that this substitute would replace essentially, as Mr. Rohrabacher, who has led such a good fight on this and so many Members who have supported him, calls for a massive change in the way that we protect the secrecy of those who file patents in our country. Now, to me, to move from a system that basically says when you file a patent your ideas can be protected for up to 17 years, up to the point that that patent is granted, and if the review office takes longer than 2 years, if it takes 4 years or 5 years for whatever reason, that your ideas are protected, why would we want to take away the property rights of our inventors by saying after 18 months, and where did the 18-month magic come from anyway, that after that point their ideas could be made available to whomever might want them? To go from 17 years to 18 months to me is a massive change in the way the current system functions. I have never had an inventor in my district come up to me and ask for this change, so I wonder who it is that is proposing the change that is in the base bill. I want to compliment Mr. Rohrabacher for helping to expose this issue in detail so that we can better protect our inventors' technologies in this country. From the inventors I have talked to, they have some pretty big problems, once they involve themselves in this whole idea of patenting their inventions. Number one is the cost. The fact that a really small person does have to put a lot forward in the first place just to patent their idea. If you are a big company, that does not affect you as much. You have great wholeness in the system. You have the ability to float. But for the small people that are out there in their garages and their basements where wonderful ideas have come from, it is much more difficult for them to do that even in the existing system. Once they do, one of the challenges they have as an inventor is that big companies, if they try to commercialize the technology, often try to buy their idea out before it is even applied in the manufacturing sector, because an inventor does not control the manufacturing process. They are not into the commercialization side. Under the current system, it is even difficult for many of these inventors to get someone to buy their idea. Also we have a situation under the current system where inventors find that their ideas are counterfeited. In fact, we have had dumping of computer terminals that have come over from China and other places. I wish the committee would have given a little more attention to the real problems that inventors are having out there, trying to work in this current system. But they have never complained to me about the protections they receive in this country for their property rights. They have never complained about the time period. They are complaining to me now. The Ohio State Bar Association is very aware of what this bill does and has made its views known to us. And many, many other inventors throughout the State of Ohio. But I say to myself, what could have propelled this committee into proposing this kind of change? I looked down the list of multinational corporations that want this particular right. They already function on the international front. They are the very same firms that try to buy out these small inventors and do not permit them to commercialize their technology, if they do not have deep pockets. They are the very same interests that are able to float in their little boats in international waters when the average inventor is not. They are the very ones that have no problems with existing fees. And it just seems to me that they got the red carpet rolled out for them when they went before the respective institutions of this House. On the other hand, the small inventors of my community have not been afforded the opportunity to come before the committee. The small inventors of my community have not been allowed to come before the Committee on Small Business. I heard one of the Members, the gentleman from Maryland [Mr. Bartlett], say that the hearings would be held next week. My friends, the horse is already out of the barn. Next week? This bill is being heard today. So it seems to me that we have a responsibility to represent the majority of inventors in this country, most of whom do not have deep pockets. Our job is not just to represent the multinationals who have lots of good ideas and they have a great ability to float their boats, but they are not the only ones out there in the ocean. I would certainly say to those who would want to bend over backwards to other countries who do not give us market access, we have a $50 to $60 billion trade deficit with Japan, a $40 billion trade deficit with China, and it is growing. The situation we have with Mexico is abominable post-NAFTA. A lot of these other countries are going to be advantaged through this agreement. Why? Why are we doing this to our inventors when in fact our country has 10 times more intellectual property breakthrough technologies than any other country in the world? We protect these property rights. It is inherent in the Constitution of this Nation. Why would we want to do this to the people of our Nation? Now, let us take a look at the burden of proof and the fact that people say here, well, they can sue. If people do not like this new bill, H.R. 400, and they fail to vote for the Rohrabacher substitute, well, gosh, we will give them a chance to go to court. A lot of these inventors out there do not have the money. They worry about paying their maintenance fees under the existing system, under the existing system. So why force them into cases where the burden is on them to prove that what they are doing in OK? Under the current system, it is. Why place that burden on them? Why force them to go into these reexamination procedures? Why would we want to do that to our own people? Frankly, for a lot of these nations or companies that function offshore, my own view is unless they give us market access, why give them anything? Why give them any advantage into this Nation's most precious seed corn, which is our patented inventors' property rights? The whole idea of corporatizing the patent office, it is interesting that the people who work over there do not want this to happen. They are civil servants. They objectively can review, regardless of what type of inventor comes in there with an invention. None of us really understand the gentleman's proposal of what this guasi-government corporation or new entity, this PTO, what that is going to be. We have not had a chance to fully digest what that means down the road. How objective will these examiners be allowed to be? What will the CEO of that corporation, what rights will that individual have over those individual decisions? How objective and judiciallike will those decisions be able to be? It seems to me there are a lot of issues in H.R. 400 that no Member here, including the people on the committee, can fully appreciate. Why do we not have an opportunity to clean this bill up? Let us adopt the Rohrabacher substitute, let us keep the system clean, the way it is, and then work through some of the issues that are of deep concern to Members here who want to represent not just those with deep pockets, but small inventors around our country who are really creating the future of us. It was mentioned earlier there are some people concerned about jobs in our country and our trade policy who have engaged in this debate. Certainly we have, because we understand what it is like to negotiate against a country that uses every kind of barrier to disallow our product into their market. But the inventions, the ideas, the intellectual property is the heart of our system. To allow them into the door when we have all sorts of other problems out there and we do not fully appreciate the long-term consequences of what is being proposed here, is a very dangerous position in which to place our country for the next century. There is no question that patents are the primary source of job creation in this country. It goes to the heart of how we develop as an economy. When I see people like Nobel Laureates opposing the changes in H.R. 400, and I see the gentleman from California [Mr. Rohrabacher] and our own minority leader, the gentleman from Missouri [Mr. Gephardt], and the gentleman from Maryland [Mr. Hoyer], and others in this body, the gentleman from California [Mr. Hunter], people on both sides of the aisle who have respect for members of the committee, but feel that we have not had our concerns solved, we have no choice but to wholeheartedly support the Rohrabacher substitute. So I want to urge the membership, please, that if they have not read the bill, if they have not followed this debate, to support the Rohrabacher substitute. Do not fix a system that is not broken. Let us work hard, as this Congress progresses, in order to fix the current system if there are problems, but do not completely turn it upside down and take away the property rights of our inventors, especially the small inventors whose canoes are very small to row in the oceans of the international marketplace. Mr. Chairman, I reserve the balance of my time.

Ms. KAPTUR

Ms. KAPTUR. Out of an hour, then I understand, Mr. Speaker, we will receive 15 minutes?