F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, H.R. 1561 will help implement the Patent and Trademark Office's Strategic Business Plan to transform the agency's operations. The bill incorporates a revised fee schedule previously submitted by the PTO that will generate much-needed additional revenue. The plan also includes a true structural reform of the office, which demonstrates that the PTO is not simply saying give us more money and we will solve the problem. The implementation of the strategic plan is the first step forward toward improving patent and trademark quality while reducing application backlogs and pendency at the agency. These goals are critical to the health of cutting-edge industries in particular and our economy in general. Americans lead the world in the production and export of intellectual property and related goods and services. Time is money in the intellectual property world. If the PTO cannot issue quality patents and trademarks in a timely manner, then inventors and trademark filers are the losers. By granting patents and registering trademarks, the PTO affects the vitality of businesses and entrepreneurs, paving the way for investment in research and development. Industries based on intellectual property, like biotechnology and motion pictures, represent the largest single sector of the United States economy. Approximately 50 percent of American exports depend upon some form of IP protection. While intellectual property protection is increasing in importance, the PTO is collapsing under an increasingly complex and massive workload. Patent pendency, the amount of time of patent application is pending before a patent is issued, now averages over 2 years. Without fundamental changes in the way the PTO operates, average pendency in these areas will likely more than double to 6 to 8 years in the next few years. I would point out that the patent term is 20 years from the date of filing. So if it takes 6 to 8 years before the PTO can decide whether or not an application is indeed patentable and grants a patent, that will be that much less time that the patent is actually good, and, thus, that much less valuable to the person who has successfully invented a new technology or product and patented it. Moreover, the backlog of applications awaiting a first review by an examiner will grow from the current level of 475,000 to over a million. These delays pose a grave threat to American businesses and entrepreneurs. The nature of technology and the nature of the marketplace make these delays unacceptable and unsustainable. And what I would point out to the gentlewoman from Ohio and others who complain about this bill and the fee increases that are contained to modernize the system is that if our competitors in an increasingly globalized economy, in Europe and in Japan and elsewhere, are able to obtain more prompt decisions from their patent offices, that will put American inventors at a disadvantage considerably. To fund the initiatives set forth in the strategic plan, the administration has proposed in H.R. 1561 an increase in patent and trademark fees. The proposed fee changes accurately reflect the PTO's cost of doing business. They will benefit the PTO's customers by reducing application filing fees and allowing applicants to evaluate the commercial value of their inventions and recover the cost of search and examination as the situation warrants. Most importantly, the new fee structure will enable the PTO to reduce pendency time, improve quality and customer service through electronic processing, and pursue greater enforcement of intellectual property rights abroad. For example, the additional revenue provided by the fee bill will allow the PTO to hire an additional 2,900 patent examiners, these are Federal employees, not outsourced employees, and move to full electronic processing of patent and trademark applications. The Committee on the Judiciary unanimously approved this bill on July 9, 2003. The administration and private sector strongly advocated the adoption of the fee bill as a necessary means to address the workload crisis at the PTO. Failure to pass the restructuring contained in H.R. 1561 will result in further degrading of PTO operations and increasing the already unacceptable delays to patent and trademark applicants. Mr. Chairman, I will soon offer a bipartisan compromise amendment on section 5 of this bill. This portion of the bill, as reported, would essentially have taken the PTO off budget, a result that our friends at the Committee on Appropriations strongly opposed. My amendment, developed with their input, as well as that of the majority leader's office, the Congressional Budget Office, and the Committee on the Budget, would deposit any fees collected in a given fiscal year in excess of that actually appropriated in a Fee Reserve Fund. At the end of the fiscal year, the director would then be empowered to rebate the reserve-fund revenue to users of the agency. I understand that the CBO and the Committee on the Budget believe this compromise accomplishes the twin goals set forth by the majority leader's office in backing these discussions; that we will have eliminated the incentive to use PTO revenue for non-agency purposes without compromising the ability of the Committee on Appropriations to exercise their oversight prerogatives in providing appropriations for the agency. The mainstream user groups have signaled their intent to support the amendment based on this interpretation. I appreciate very much the cooperation of the appropriators in working out this compromise, and I would call on them to take this opportunity to fully fund the strategic plan. Full funding will be crucial to achieving the changes that we all want to see at the PTO. Now, let me say a couple of words of what the consequence will be if this bill is voted down. First, if this bill is voted down, the current fee diversion that occurs, where up to 30 percent of the fees that are collected by the PTO are not spent on PTO activities but instead are diverted into other areas under the jurisdiction of the Subcommittee on Commerce, Justice, State, Judiciary and Related Agencies of the Committee on Appropriations, will continue. Patent and trademark applicants should no longer be required to fund functions of the Federal Government that have no relationship whatsoever to Patent and Trademark Office operations. This bill, and the amendment that I will be proposing at the conclusion of the general debate, will end the fee diversion and will mean that fees that are collected by the PTO will either be used by the PTO or refunded to the applicants and other users. Second, if this bill gets voted down, instead of having a 2-year delay between the time of the application and the time that the application is acted upon, within the next several years that will expand to 6 or 8 years. And if it is 8 years, that means that the patent will only be good and effective for 12 years, because the patent term is 20 years from the date of application. That puts our successful patent applicants at a considerable disadvantage over those competitors who choose to patent their inventions overseas, where patent and trademark offices will work in a more expeditious manner. I would point out that the small- and medium-sized enterprises who apply for patents under the compromise that is worked out will get a significant fee reduction from a large corporation that is applying for a patent. So there still is a break for small inventors. But there are fee increases; and we need these fee increases to be able to prevent unacceptably long backlogs from occurring, because it is anticipated that the business of the PTO will double in the next few years. If we do not give them more money and we do not make this into a user fee, then the constitutional protection that the gentlewoman from Ohio and others are referring to will end up becoming very much debased in terms of their worth. I do not think that we want to see this happen, and that is why this legislation is essential to maintain the competitiveness of American intellectual property inventions and the inventiveness that has marked American society since the beginning days of our Republic. The amendment that I offer in this bill is necessary for the improved performance of the PTO, and failure to enact this legislation will truly be a disaster for American innovation. I urge Members to support this bill. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentlewoman from Pennsylvania (Ms. Hart).

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on the bill H.R. 1561, soon to be considered.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 3 minutes. Mr. Speaker, the women who are the victims of the violence that has caused death or harm to their babies have already made their choice, and their choice was to carry their babies to term and to give birth and to raise those children in hopefully a nurturing and loving household. To say that this legislation takes away the choice of a woman is just flat-out wrong. Maybe some people disagree with the choice that that woman made, but that is a personal choice; and we ought to recognize that this legislation respects that personal choice. And then to hear that this legislation is an assault on the Constitution is completely missing the point. The Supreme Court has consistently upheld fetal homicide laws, two-victim crime laws. The Webster case, I think, was the most emphatic upholding of that, and that is a Supreme Court that has also consistently refused to modify Roe v. Wade or to overrule it. So the Court has been able to make a distinction which apparently some of the Members on the other side of this argument have not been able to make, that fetal homicide laws are constitutional, two-victim crime laws are legal as well. Now, I hope that more Members would have been able to hear the arguments that were advanced by the gentleman from Georgia (Mr. Gingrey), who was an obstetrician by profession before he was elected to Congress. He has said that in some instances a minor bruise on the abdomen of a pregnant woman can result in the death of the child. If all that someone can be prosecuted for is that minor bruise, then the full force of the law against someone who has caused the death of another would not be able to be imposed against that defendant without a two-victim bill. And that is why two victims is so important. It is important, it is constitutional; but, most of all, it respects the right of the women who have decided that they do not want an abortion, that they want to give birth, and they want to raise the child with all the love that a newborn child deserves. Mr. Speaker, I yield 2 minutes to the gentleman from Alabama (Mr. Aderholt).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Pence), a member of the committee. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Garrett).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Kentucky (Mr. Lewis).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Stearns).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from New York (Mr. King).

Mr. SENSENBRENNER. Mr. Speaker, I have one more speaker to close on this side. Does the gentlewoman from California have any further speakers?

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, let us get back to the Innocent Child Protection Act, which passed the House unanimously on July 25, 2000. The purpose of that bill, which is law today, was to prevent the killing of a child in utero because of the mother's crimes causing the death penalty to be imposed. There the legislation, again which was signed into law, defined the child in utero as a human being at any stage of development who is carried in the womb. So that we decided and we made law 3\1/2\ years ago when the Innocent Child Protection Act was passed. I would note that the three Members on the other side of the aisle who have spoken against the current bill all voted in favor of the Innocent Child Protection Act and the definition that I have just repeated for, I believe, the third time. Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Gingrey).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentlewoman from Pennsylvania (Ms. Hart), the principal author of the bill. (Ms. HART asked and was given permission to revise and extend her remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 2 minutes to make 3 points. Mr. Speaker, the gentleman from New York seems to imply that this bill has to do with tax cuts and appropriation levels. It does not. It has to do with the criminal law, and as an aside, the criminal law is an expression of the sense of values of the legislative body that puts the criminal law on the books. Secondly, the gentleman from New York seems to think that we are plowing new ground in making a definition of what a child in utero is and giving the child in utero the protections that are contained in this bill. That is a settled issue, and on July 25, 2000, with the gentleman from New York's support, we passed the Protection of Innocent Children Act which defined a child in utero as meaning a member of the species Homo sapiens at any stage in development who is carried in the womb, and that means a two-cell zygote. Thirdly, the gentleman from New York seems to want to interject the abortion debate in this bill. That is not the case at all, and I would refer him to page 7 of the bill as reported that says nothing in this section shall be construed to permit the prosecution of any person for conduct relating to an abortion for which the consent of the pregnant woman or a person authorized by law to act on her behalf has been obtained or for which such consent is implied by law. So what we are dealing with here is wanted children, children that the mother has every intention of bringing to term to have, to give birth and to give that child a nurturing and loving household and a nurturing and loving upbringing. These are the children that we wish to provide protection for under this bill. Mr. Speaker, I yield 5 minutes to the gentleman from Ohio (Mr. Chabot), who is the chairman of the Subcommittee on the Constitution.

Mr. SENSENBRENNER. Mr. Speaker, I yield 10 minutes to the gentleman from Illinois (Mr. Hyde), who will close the general debate on this side. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, the substitute amendment should be soundly defeated as it would throw salt into the wounds of those parents who have implored this Congress to recognize under Federal law the loss of their loved, unborn child. These mothers are not seeking recognition of the violence they have suffered alone. They are seeking recognition of the violence their unborn children have suffered as well. They are seeking recognition of the loss of their unborn child. H.R. 1997 recognizes that loss; the substitute does not. This House has defeated this substitute amendment each time it has been brought up, with increasing margins during the 106th and 107th Congresses. We should increase that margin today. A recent Fox News poll asked, ``If Scott Peterson is convicted of killing his pregnant wife, Laci, do you think he should be charged with one count of homicide for murdering his wife, or two counts of homicide for murdering both his wife and his unborn son?'' An overwhelming 84 percent of the American people responded that two counts, not one, should be brought. These results are confirmed by two other recent polls that show support for two separate charges for violent criminals who harm mothers and their unborn children. Support for a separate charge for an unborn victim is 84 percent, according to a Newsweek poll, and 79 percent, including 69 percent of those who describe themselves as prochoice, according to another Fox News poll conducted in July. Each poll found that less than 1 in 10 Americans disagree. I would ask my colleagues to join with the overwhelming majority of Americans who have responded to these polls, including those who describe themselves as being prochoice, to reject this amendment and not join with the very small minority, less than 1 in 10 of those who are polled, who would support the one-victim approach. This substitute amendment embodies the extreme ideology of those who are unwilling to recognize an unborn child in the law in any context whatsoever. The term ``unborn child'' as used in H.R. 1997 has been widely used and accepted by judges, including the Supreme Court, and Justice Blackmun, the author of the Roe v. Wade decision itself. The term ``unborn child'' has been widely tested in court and has sustained all constitutional challenges in terms of a fetal homicide law. Removing that term and replacing it with the vague and untested language of the substitute would accomplish nothing, while risking grave confusion and jeopardizing the conviction of violent Federal criminals. The abstract language in the substitute, which points to injuries to a ``pregnancy,'' ignores the fact that violent criminals can and do inflict injuries on a real human being in his or her mother's womb. If an assault is committed on a Member of Congress and her unborn child subsequently suffers from a disability because of the assault, that injury cannot accurately be described as an abstract injury to a pregnancy. It is an injury to an unborn child. The bill recognizes that. The substitute does not. Also, unlike the language of H.R. 1997, the substitute contains no exceptions for abortion-related conduct, for conduct of the mother, or for medical treatment of the pregnant woman or her unborn child. This omission leaves the substitute amendment bare to the charge that it would permit the prosecution of mothers who have abortions who inflict harm upon themselves and their unborn children or doctors who incidentally kill or injure unborn children during the provision of medical treatment. For that reason, the substitute amendment will certainly be subject to a successful constitutional challenge. The underlying bill has been tested and proven constitutional. Today's debate is not about penalties. It is about victims. H.R. 1997 recognizes unborn victims of violence. The substitute does not. In the name of unborn victims, including Conner Peterson, Heaven Lashay Pace, Zachariah Marciniak, Landon Lyons and the others who are not named today but are known and loved and missed by their surviving family, the substitute should be soundly defeated and the bill passed. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Maryland (Mr. Bartlett). (Mr. BARTLETT of Maryland asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 7 minutes to the gentleman from Ohio (Mr. Chabot), the distinguished subcommittee chairman.

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentlewoman from Pennsylvania (Ms. Hart).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, on January 7, 18-year-old Ashley Lyons and her unborn son, Landon, were murdered in Scott County, Kentucky. Current Kentucky law regards this crime as having only a single victim. But Carol Lyons, Ashley's mother and Landon's grandmother, said, ``Nobody can tell me that there were not two victims. I placed Landon in his mother's arms, wrapped in a baby blanket that I had sewn for him, just before I kissed my daughter good-bye for the last time and closed the casket.'' We are here today to tell Carol Lyons she is right. There were two victims that day. The Kentucky legislature has recently acted to recognize Landon as a victim under Kentucky law, and Kentucky's Governor is going to sign that legislation. But today, Congress has yet to pass legislation recognizing unborn victims of violence under Federal law. The House has done so twice by large margins, but the Senate has failed to act. The Unborn Victims of Violence Act provides that if an unborn child is injured or killed during the commission of crimes of violence already defined under Federal law, prosecutors can bring two charges, one on behalf of the mother and the second on behalf of the unborn victim. Indeed, the House of Representatives in the 106th Congress, by a unanimous 417 to nothing vote, passed the Innocent Child Protection Act, a bill only two sentences long, that banned the Federal execution of a woman while she carries a ``child in utero.'' ``Child in utero'' is defined in that bill exactly, to the word, as it is in this bill, namely, as ``a member of the species homo sapiens, at any stage of development, who is carried in the womb.'' Now, opponents of H.R. 1997 will argue that harm to an unborn victim should simply be considered an additional harm to the mother, not an independent harm to another human being. Yet, a vote for the Innocent Child Protection Act two Congresses ago cannot be defended on the grounds that executing a pregnant woman would cause her to suffer additional harm because there can be no additional harm exceeding the ultimate and final punishment of death. Since the only logical rationale for the support of the Innocent Child Protection Act was to prevent the killing of an innocent unborn child, H.R. 1997, which also recognizes unborn victims, should have similarly overwhelming bipartisan support. We shall see. The legislation before us now requires us to reflect on the goals and purposes of the criminal law. Ultimately, the criminal law is not a schedule of punishments. It is an expression of society's values. It is an expression of society's values. Anything less than the legislation before us today simply does not resonate with society's sense of justice. The tragic murders of Laci and Conner Peterson in California have drawn national attention to unborn victims and the American people have overwhelmingly responded with more than 80 percent support for bringing two separate charges against their murderer. The Unborn Victims of Violence Act protects the right of a mother to choose to bring her wanted and loved child to term, safe from the violent hands of criminals who would brutally deny her that right. This bill, however, has nothing to do with abortion. Let me repeat that. The bill has nothing to do with abortion. That fact could not be expressed more clearly in the legislation which explicitly excludes abortion- related conduct. Further, the Supreme Court, in Webster v. Reproductive Health Services, has already refused to strike down Missouri's unborn victims of violence law, stating that it ``does not by its terms regulate abortion.'' Mr. Speaker, H.R. 1997, just like the Missouri law that the Supreme Court refused to strike down, does not by its terms regulate abortion and, indeed, H.R. 1997 includes provisions that specifically exclude abortion-related conduct. Both before and since the Webster decision, every single unborn victims law passed by State legislatures that has been challenged in court has been upheld. Anyone who claims this bill has anything to do with abortion and opposes it on those grounds is inviting this body to focus not on unborn child victims, but on red herrings. Tracy Marciniak, whose unborn child was murdered by her husband, has told Congress, ``Please don't tell me that my son was not a murder victim.'' The Unborn Victims of Violence Act, I hope, will pass this body overwhelmingly today if only each Member opens their eyes to the photo of the dead body of Tracy Marciniak's murdered child and opens their hearts to the mothers who have implored Congress to give their unborn babies the status they deserve under the criminal law. I urge my colleagues to do so by supporting this legislation before the House today. Mr. Speaker, at this time I will include for the Record two letters that the gentleman from California (Mr. Hunter), chairman of the Committee on Armed Services, and I have exchanged regarding the two committees' jurisdictional claims on this legislation. Committee on Armed Services, House of Representatives, Washington, DC, February 9, 2004. Hon. F. James Sensenbrenner, Jr., Chairman, House Judiciary Committee, Rayburn HOB, Washington,

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 1997 currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 529, I call up the bill (H.R. 1997) to amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes, and ask for its immediate consideration in the House.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman from Florida (Ms. Ginny Brown-Waite of Florida).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Minnesota (Mr. Kennedy).

Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the gentleman from Texas (Mr. DeLay), the majority leader.