Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Of course you do.

Mr. LEAHY. So is the Senator saying we set the right example by passing a bill which, on the face of it, violates the Constitution, but it is okay unless somebody challenges it?

Mr. LEAHY. You just cut it for those days.

Mr. LEAHY. Yes, it is. The courts have been making good progress in developing the law in this area, and I do not believe patent reform legislation should interfere with this progress. Should the House propose or pass some language on damages, I will certainly consult with the Senator from California to obtain her views on that language.

Mr. LEAHY. Mr. President, I ask for the yeas and nays on the Leahy- Grassley-Kyl, et al., managers' amendment.

Mr. LEAHY. The Senator from Louisiana has been talking about amendment No. 112. Does that mean you are withdrawing 113?

Mr. LEAHY. So am I correct that amendment No. 113 is withdrawn?

Mr. LEAHY. Madam President, before he does that, would the Senator yield for a question?

Mr. LEAHY. Mr. President, I am soon going to ask for a vote on the Leahy-Grassley-Kyl managers' amendment. It resolves a number of issues in the bill, including fee diversion and business method patents damages, venue issues. Senators Coburn, Schumer, Bennet, Whitehouse, Coons, and others worked with us on those issues. I would like to vote on that and then go to the amendment offered yesterday by Senator Bennet on satellite patent offices, with a modification, as well as the modified amendment offered by Senator Kirk and Senator Pryor on ombudsman. If we can do that, we can get much of this finished. But while I am waiting for the--just so everybody will know, I am going to ask for a vote on that very soon. But I am waiting for the ranking member to come back. I see the distinguished senior Senator from Minnesota, and I yield to her.

Mr. LEAHY. Mr. President, we have the Leahy-Grassley managers' amendment at the desk. I have a modification to it. I ask that the amendment be so modified.

Mr. LEAHY. Mr. President, we are prepared to go to a rollcall vote on this right now. I don't see the ranking member. As a courtesy, I am willing to wait a few more minutes before calling for the vote. While we are waiting for my friend, the distinguished Senator from Iowa, I will note that what we are talking about is bipartisan legislation; it is supported by both business and labor. People ask whether Congress can work together and whether, with all the problems facing America, Republicans and Democrats can come together to get work done, make things work, and do things that can make America stronger and more competitive in the world. This is a bill that does that. That is why we have a broad group of cosponsors in both parties across the political spectrum. It enables us to actually do something. We have a decades-old patent system, which may have made sense in the time when you had patents that might not be superseded by new inventions for years. Now they can be superseded the day they come in. That is why we have 700,000 patents applications waiting to be processed. It is also why countries such as China and others are beginning to surpass us in their innovation, because we have been slow to catch up. We are in a situation where we are unable to compete with the rest of the industrialized nations. Their patent laws are ahead of ours. So this is a case where we in America have a chance to catch up. We do it without adding a cent to the deficit, but we also create jobs. Every major manufacturer in this country and inventors have said this is where we will create jobs. I look at it, of course, with the point of view that my little State of Vermont on a per capita basis has more patents than any other State. We even had more than some States larger than ours. The distinguished Presiding Officer comes from a State that has spent a great deal of time and effort on innovation and is one of the leaders in the number of patents, especially in the high-tech area, in this country. But the patents don't help us compete unless we are able to move with them. We in Vermont have a long history of innovation and invention. The first patent in the United States was signed by George Washington after being cleared by Thomas Jefferson and granted to a Vermonter. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on March 1, 2011. The committee will meet in room 345 of the Cannon House Office Building beginning at 2 p.m.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on March 1, 2011, at 2:30 p.m.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Ad Hoc Subcommittee on Contracting Oversight of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on March 1, 2011, at 10 a.m., to conduct a hearing entitled, ``Examination of Public Relations Contracts at the General Services Administration's Heartland Region.''

Mr. LEAHY

Mr. LEAHY. Reserving the right to object--I would ask if the distinguished Senator could hold off----

Mr. LEAHY. I suggest the absence of a quorum.

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

Mr. LEAHY. Madam President, I understand Senator DeMint will be offering an amendment in the first degree which will require setting aside the managers' amendment. My understanding is, once he has done that, we will then set aside his amendment and go back to the managers' amendment. I yield to the distinguished Senator.

Mr. LEAHY. Madam President, yesterday the Senate began debating the America Invents Act. We adopted the committee amendments, and we proceeded to have five additional amendments offered to the bill. This morning I will be offering a managers' amendment, along with the distinguished Senator from Iowa, Mr. Grassley, that incorporates additional improvements being made at the suggestions of Senator Coburn, Senator Schumer, Senator Coons, Senator Bennet, and others. When we adopt this managers' amendment, I believe we will move very close to a consensus bill the Senate can and should pass to help create good jobs, encourage innovation, and strengthen our recovery and economy. I ask unanimous consent to have printed in the Record the Statement of Administration Policy from the Obama administration and the Edward Wyatt article.

Mr. LEAHY. I thank all of those with the administration who worked on the matter, and particularly Secretary Locke, Director Kappos of the Patent and Trademark Office, and former Secretary Daley, now Chief of Staff at the White House. 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 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. I 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- Grassley-Hatch Patent Reform Act or, as it has become known, the America Invents Act. We have to reform our patent office and our patent laws. They have not been updated for 60 years. We have to help to create good jobs, encourage innovation, and strengthen our economy. The reporter notes the growth in patent applications to more than 2,000 a day last year. That is not a typographical error--2,000 a day last year. 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, the next killer app. We should all do what we can to help PTO Director Kappos and the dedicated women and men of the PTO to modernize and reform. It makes no sense that it takes 2 years for an inventor to get an initial ruling on his or her patent application, then another year or more to get the patent. As 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. We are not going to be the leader we are today if we allow that to continue. But 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 moving ahead to pass it without delay. It 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. It 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 and which are germane to 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. It is a reform that Senator Hatch and I have long supported. I appreciated him working with me and withholding his amendment during committee consideration. So 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 would also improve patent quality. We incorporate suggestions from Senator Bennet and Senator Coons to remove certain damages and venue provisions that are no longer necessary in light of recent court decisions. 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. They are included in this amendment, along with the change to the definition of a ``microentity'' made at the suggestion of the majority leader, and my amendment to conform the name of the legislation to the America Invents Act. I hope we adopt this amendment without delay. I understand 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. 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 we amend the Constitution of the United States. Those are debates I will be happy to have in their own right. We must not allow other countries around the world to have such a competitive advantage because we are too slow in moving on this bill. The bipartisan American Invents Act is too important to be turned into a mere vehicle to launch speeches and debates about pet causes. It is not the bill to have debates about whether if the United States were to reach its debt ceiling, the government should favor paying creditors such as China before meeting its other obligations to the American people. That theoretical debate has nothing to do with the patent reforms in this bill, and there will be a bill that you can have the debate on if you want. In fact, this bill is one that does not spend taxpayers' 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 we can complete our work on this legislation and serve the interests of the American people. I have a managers' amendment. I described part of it already. I will send it to the desk and ask unanimous consent that the pending amendments be set aside and this be considered.

Mr. LEAHY. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. LEAHY. I ask for agreement on the managers' amendment. Madam President, I suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I ask unanimous consent that the pending amendment now be set aside and that the managers' amendment be the pending amendment.

Mr. LEAHY. I suggest the absence of a quorum.

Mr. LEAHY

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