Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I ask unanimous consent that an article written for The Hill by the distinguished Secretary of Commerce Gary Locke, dated March 2 of this year, be printed in the Record.

Mr. LEAHY. Mr. President, even though I oppose this amendment and would simply allow it to go for a voice vote because the proponent of the amendment is not even on the floor, I will, to protect his right and notwithstanding his not following the normal policy, ask for the yeas and nays.

Mr. LEAHY. Mr. President, it is interesting, I do not want to embarrass the person whom I wanted to speak about at all, but I was interested in listening to my dear friend, Senator Durbin, speak about his time at Georgetown Law School. Both he and I graduated from the Georgetown Law School. He talked about a classmate of his who was in patent law, and he realized this was a complex subject, one that is not the sort of law that he, Senator Durbin, was going to go into, any more than I would have. But I also think of another graduate of Georgetown Law Center who was an engineer, had a degree in engineering, studied patent law, and became one of the most distinguished patent lawyers, litigators in this country, and is now a member of the Federal circuit court of appeals and that is Judge Richard Linn. It was interesting hearing the Senator from Illinois, himself one of the finest lawyers in this body. My wife Marcella and I had the honor of being out in Chicago with Judge Linn and his wife Patty for a meeting of the Richard Linn American Inn of Court in Chicago. He serves with great distinction. In fact, a major part of this legislation reflects an opinion he wrote. But I digress. I ask unanimous consent the Senate resume consideration of the Lee amendment No. 115, with the time until 5:15 equally divided between the two leaders or their designees; that upon the use or yielding back of time, the Senate proceed to vote in relation to the Lee amendment No. 115; that the Lee amendment be subject to a 60-vote threshold; that upon disposition of the Lee amendment, the Senate resume consideration of the Menendez amendment No. 124; that Senator Menendez be recognized to modify his amendment with the changes at the desk and the amendment, as modified, be agreed to; that the motions to reconsider be considered made and laid upon the table, with no intervening action or debate; and there be no amendments in order to the amendments prior to the vote.

Mr. LEAHY. I thank the superb staff for writing that out because I am not quite sure I could have done that on my own. I had hoped as we began debate on this important bill to modernize America's patent system that the Senate would focus specifically on this measure designed to help create jobs, energize the economy and encourage innovation. I had hoped that we would consider relevant amendments, and pass the bill. The America Invents Act is a key part of any jobs agenda. We can help unleash innovation and promote American invention, all without adding a penny to the deficit. This is commonsense, bipartisan legislation. I said at the outset that I hoped the Senate would come together to pass this needed legislation and do so in the finest tradition of the Senate. I thank the Republican manager of the bill and the assistant Republican leader for their support and efforts on this bill. Unfortunately, we have become bogged down with nongermane, nonrelevant, extraneous discussions and amendments. Earlier this week, Senators who were focused on our legislative effort and responsibilities joined in tabling an amendment that has nothing to do with the subject matter of the America Invents Act. Extraneous amendments that have nothing to do with the important issues of reforming our out-of-date patent system so that American innovators can win the global competition for the future have no place on this important bill. They should not be slowing its consideration and passage. If America is to win the global economic competition, we need the improvements in our patent system that this bill can bring. We must now dispose of another such amendment so that we may proceed to final passage of the America Invents Act and help inventors, American businesses and our economic recovery. I take proposals to amend the Constitution of the United States seriously. I take seriously my oath as a Senator to support and defend the Constitution and to bear true faith and allegiance to it. Over the years I have become more and more skeptical of recent efforts to amend the design that established the fundamental liberties and protections for all Americans. I believe the Founders did a pretty good job designing our fundamental charter. I likewise take seriously the standard set in article V of the Constitution that the Congress propose amendments only when a supermajority of the Congress deem it ``necessary.'' While there have been hundreds of constitutional amendments proposed during my service in the Senate, and a number voted upon during the last 20 years, I have been steadfast in my defense of the Constitution. The matter of a so-called balanced budget amendment to the Constitution is not new to the Senate. Indeed, I believe the first matter Senator Hatch moved through the Judiciary Committee when he chaired it and I served as the ranking member was his proposed constitutional amendment to balance the budget. I strongly opposed it, but I cooperated with him in his effort to have the committee consider it promptly and vote. I wish others would show the managers of this bill that courtesy and cooperation and not seek to use this bill as a vehicle for messages on other matters. The Judiciary Committee has considered so-called balanced budget amendments to the Constitution at least nine times over the last 20 years. The Senate has been called upon to debate those amendments several times, as well, in 1982, 1986, 1992, 1994, 1995 and 1997. Despite the persistent and extraordinary efforts of the senior Senator from Utah, they have not been adopted by the Congress. The only time the Senate agreed to the proposed constitutional amendment was in 1982. On that occasion, the House of Representatives thought the better of it. On the subsequent five occasions, as Senators came to understand how the proposed amendment undercut the Constitution, it was defeated. Now another Senator has adopted this cause. He has proposed a different, even more complicated proposed constitutional amendment. That will require study in order to be understood. It will require working with the chairman of the Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights. While the new Senator from Utah is a member of the Judiciary Committee and a member of the Constitution subcommittee, he has not consulted with me about his proposal, nor, as far as I know, with the chairman of the subcommittee, the senior Senator from Illinois. Instead, he preemptively seeks to raise the matter on this important bill, which is designed to create jobs, encourage American innovation and strengthen our economy. For the last 20 years, the so-called balanced budget amendment has been a favorite slogan for some. For some others of us, we have done the hard work to actually produce a balanced budget and, indeed, a surplus. Rather than defile the Constitution, we have worked and voted to create a balanced budget and a budget surplus. In 1993, without a single Republican vote to help us, Democrats in the Congress passed a budget that led to a balanced budget and, indeed, to a budget surplus of billions of dollars by the end of the Clinton administration. That surplus was squandered by the next administration on tax breaks for the wealthy and an unnecessary war that cost trillions but went unpaid for. Those misjudgments were compounded by financial fraud and greed that led to the worst economic recession since the Great Depression. That is what we have been seeking to dig out from under since 2008. At this time, I ask unanimous consent to have printed in the Record a letter received from American Federation of State, County and Municipal Employees, AFSCME, in opposition to the Lee amendment.

Mr. LEAHY. We have stabilized the economic freefall and begun to revive the economy. Everyone knows that economic growth is the path toward budget balance. Economic growth and winning the future through American innovation is what the bipartisan American Invents Act is all about. Accordingly, for all these reasons as well as the reasons for which I opposed the efforts to amend the Constitution in 1982, 1986, 1992, 1994, 1995 and 1997, I oppose amendment No. 115. Exhibit 1 [From the Hill, Mar. 2, 2011] Delivering Innovation and Jobs Through Patent Reform (By Commerce Secretary, Gary Locke) Today, there are more than 700,000 unexamined patent applications log-jammed at the U.S. Patent and Trademark Office (USPTO).Many of them represent inventions that will come to market and launch new businesses and create new, high-paying jobs. But without a patent, securing the funds needed to get a business or innovation off the ground is nearly impossible, for both small and large inventors alike. Patent reform legislation the Senate is considering this week can change that. And it can build on the progress USPTO Director David Kappos has already made in reducing the time it takes to process the average patent--currently nearly 3 years. New programs have been introduced to fast-track promising technologies, reforms have been made to help examiners more quickly process applications, and the Patent Office recently announced a plan to give inventors more control over when their patent is examined. The result? The backlog of patents is decreasing for the first time in years, even as new applications have actually increased 7 percent. But if the USPTO is to speed the movement of job-creating ideas to the marketplace, it will take more than internal, administrative reforms alone. That's where the patent reform legislation comes in. Here's what it promises to do: First, it allows the USPTO to set its own fees--a major part of ensuring that the agency has reliable funding. This will enable the USPTO to hire more examiners and bring its IT system into the 21st century so it can process applications more quickly and produce better patents that are less likely to be subject to a court challenge. Second, it decreases the likelihood of expensive litigation because it creates a less costly, in-house administrative alternative to review patent validity claims. Also, the pending legislation would add certainty to court damages awards, helping to avoid excessive awards in minor infringement cases, a phenomenon that essentially serves as a tax on innovation and an impediment to business development. Finally, patent reform adopts the ``first-inventor-to- file'' standard as opposed to the current ``first-to-invent'' standard. First inventor to file is used by the rest of the world, and would be good for U.S. businesses, providing a more transparent and cost-effective process that puts them on a level playing field with their competitors around the world. There is some concern among some small, independent inventors, who feel like the current system is better for them, but it's our strong opinion that the opposite is true. Here's why: The cost of proving that one was first to invent is prohibitive and requires detailed and complex documentation of the invention process. In cases where there's a dispute about who the actual inventor is, it typically costs at least $400,000 in legal fees, and even more if the case is appealed. By comparison, establishing a filing date through a provisional application and establishing priority of invention costs just $110. The 125,000 provisional applications currently filed each year prove that early filing dates protect the rights of small inventors. In the past seven years, of almost 3 million applications filed, only 2 patents were granted to small entities that were the second inventor to file but were able to prove they were first to invent. Of those 25, only one patent was granted to an individual inventor who was the second to file. Thus, in the last seven years, only one independent inventor in nearly 3 million patent filings would have gotten a different outcome under the ``first-inventor-to-file'' system. Many proposals in this legislation have been debated for a decade, but we now have core provisions with broad support that will undoubtedly add more certainty around the validity of patents; enable greater work sharing between the USPTO and other countries; and help the agency continue with operational changes needed to accelerate innovation, support entrepreneurship and business development, and drive job creation and economic prosperity. And thanks to the leadership of Senate and House Judiciary Committee Chairmen, Patrick Leahy1 and Lamar Smith, getting this bipartisan jobs legislation passed is a top priority. There's a clear case for it. As President Obama said in his State of the Union address, ``The first step in winning the future is encouraging American innovation.'' Reforming our patent system is a critical part of that first step. Speeding the transformation of an idea into a market-making product will drive the jobs and industries of the future and strengthen America's economic competitiveness.

Mr. LEAHY

Mr. LEAHY. Mr. President, reserving the right to object, and I do not intend to object, my understanding is the Senator from Illinois will offer his amendment and then will not object to his amendment then being set aside and we go back to the managers' amendment; is that correct?

Mr. LEAHY. I will not object.

Mr. LEAHY. Mr. President, I thank the Senator from Illinois for his contribution to this effort. I ask unanimous consent that we set aside the Kirk-Pryor amendment and go back to the pending business, which is the managers' amendment.

Mr. LEAHY. Mr. President, I understand there will be another Senator who will come down and speak, and in the meantime I suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. Mr. President, I ask unanimous consent that the distinguished Senator from Michigan, Ms. Stabenow, be recognized as though in morning business.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. You modified No. 112. I didn't know what you wanted to do with amendment No. 113.

Mr. LEAHY. Madam President, I wish to ask a question about the proposal that the Senator from California will make on pay, which is fine with me. Can we not have an alternative in the bill that we give the money to charity so somebody would actually see it? This would be one one-hundred thousandth of 1 percent, according to the Treasury. The last time we had a shutdown, I just voluntarily gave $4,000, $5,000 to charity. Would it not make a lot more sense, and actually people might get some benefit from it, especially places such as homeless shelters? They are going to be hurt by a government shutdown. Why not do something where they would get the money directly?

Mr. LEAHY. We could, actually, by saying either return it to the Treasury or give an equal amount to charity and file with the Secretary of the Senate to which charity they gave it.

Mr. LEAHY. Not if one gives the full amount.

Mr. LEAHY. While the Senator is waiting for that, if I might ask the Senator a question. Article 2 of the Constitution says: The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall be elected. Would the Senator's amendment be constitutional under that provision? And remember that we voted to increase the pay of the President when President Clinton--if I could have the attention of the Senator--

Mr. LEAHY. Between the time when President Clinton was in office, but it did not take effect until President George W. Bush came in and it doubled the salary for President Bush but not President Clinton. How do you, by statute, change, even for a matter of days, a Presidential salary? Doesn't it violate article 2 of the Constitution?

Mr. LEAHY. But you are saying that even though it goes directly against the Constitution, which says his compensation shall neither be increased nor diminished during the period for which he shall be elected, that unless he objected--well, by the same token, why couldn't we raise the pay of a President unless he objected?

Mr. LEAHY. It seems to be a total violation of the Constitution.

Mr. LEAHY. But we have some responsibility in this body to actually pass laws that are constitutional. It would, if there were a shutdown, and if upon a per-diem basis his salary was decreased, why isn't that de facto a violation of the Constitution?

Mr. LEAHY. Of course you are.

Mr. LEAHY. The Constitution doesn't say anything about an extraordinary event.

Mr. LEAHY. That is not my question.

Mr. LEAHY. I don't disagree with anything the Senator is saying, but how do you get--it would be like reducing a judge's salary. The Constitution specifically prohibits that. You say it is not reducing, but of course it is. If you say we are shut down 5 days, take whatever percentage 5 days of the President's annual salary is, you withhold it--you are not going to give it back when the government comes back into service--you have decreased his salary. I am not suggesting not doing it for the Congress, but I don't see how--I am not sure what kind of example we set if we pass a piece of legislation which on the face of it violates the Constitution. I am not talking about Members of Congress. As I said, the last time we had a shutdown I took whatever was my amount and added it to the thousands and thousands of dollars I give every year to charity. I added it to that. But in this case, you go against article 2 by decreasing the President's salary.