Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. I yield myself such time as I may consume. Mr. Speaker, I thank the gentlewoman from Wyoming (Mrs. Lummis) for her work on this bill. And I'm pleased to join the Science Committee's ranking member, Ms. Johnson, as a cosponsor of H.R. 967, the Advancing America's Networking and Information Technology Research and Development Act of 2013. This bill had broad bipartisan support in the last Congress, and I hope it will receive that same level of support today. In the digital age, protecting our Nation's computer networking systems is more important than ever. This bill provides the coordinated research and development efforts necessary to improve cyber and data security nationwide. And better network security promotes U.S. competitiveness, enhances national security, and creates high-tech jobs. The NITRD program is an extension of the High-Performance Computing Act of 1991. It represents the Federal Government's main R&D investment portfolio for unclassified networking, computing, software, cybersecurity, and related information technologies. Currently, 15 Federal agencies are contributing members of NITRD, with an additional 20 or so participating in the program. This bill serves as the mechanism for interagency coordination of R&D to ensure no duplication of research efforts among Federal agencies or the private sector. It rebalances R&D portfolios to focus less on short-term goals and more on large-scale, long-term interdisciplinary research. While this bill does not authorize specific funding amounts, NITRD spending totals over $3.7 billion annually. Over $1.1 billion of this is from the National Science Foundation and over $550 million is from the Department of Energy. The bill updates the underlying High- Performance Computing statute and codifies work undertaken by the National Coordination Office, housed within NSF, to oversee the 15 different agencies. The NITRD program has eight strategic priorities for its research: cybersecurity; autonomous, robotic systems; high-end computing and applications; exascale computing; human-computer interaction; large- scale networking, workforce development; and software design and productivity. Technologies that come from these research priorities are applied by the commercial sector and the government to protect and enhance emergency communications, the power grid, air traffic control networks, and national defense systems. Networking and information technology support and boost American competitiveness, enhance national security, and help strengthen the economy. American job creators also recognize the importance of networking and information technology research and development. Many industry partners and stakeholders have written letters in support of this bill. They include the National Association of Manufacturers, TechAmerica, Computing Research Association, Institute of Electrical and Electronic Engineers-USA, Society for Industrial and Applied Mathematics, and the U.S. Public Policy Council of the Association for Computing Machinery. Cybersecurity provisions in the bill include research necessary to detect, prevent, and recover from actions that can compromise or threaten computer-based systems. I again thank my Science Committee colleague, Representative Lummis, the chairwoman of the Energy Subcommittee, for her initiative on this issue. I urge my colleagues to support the bill, and I reserve the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentlewoman from Wyoming (Ms. Lummis), who is the sponsor of this legislation and who also chairs the Energy Subcommittee, the Science, Space, and Technology Committee.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, the Senate's immigration proposal contains a fatal flaw. It legalizes almost everyone in the country illegally, amnesty, before it secures the border. As a result, the Senate proposal issues an open invitation to enter the country illegally. Millions more will do so before the border is secure. The Senate proposal would dramatically increase illegal immigration. The non-partisan Government Accountability Office found that only 6 percent of the U.S.-Mexico border is under full control of the Border Patrol. And 40 percent of all illegal immigrants are visa overstayers. Yet, the Senate proposal legalizes almost everyone in the country before a system is set up to identify the visa overstayers. The Senate proposal amounts to amnesty first, border security later, if ever. It is fatally flawed.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, the call to serve one's country comes to people in many different forms. Some protect our nation in the Armed Forces. Some are elected to public office. Others serve officials in the three branches of our government. But all work together to protect, preserve and uphold the founding principles of this great nation. Richard Herding has spent the last 27 years serving his country in both the legislative and executive branches. A graduate of the University of Chicago Law School, he began his career at the U.S. Department of Justice. Since then he has worked for Senators, Congressional committees and a presidential campaign. During the Bush Administration, he oversaw major policy decisions by the Justice Department as the Principal Deputy Assistant Attorney General for Legal Policy. He also managed the Justice Department's communication with Capitol Hill as the Acting Assistant Attorney General of the Office of Legislative Affairs. Most recently, he served as the Staff Director and Chief Counsel for the House Judiciary Committee, which I chaired in the last Congress. With Richard's help, the House Judiciary Committee passed more substantive bills than any other committee in the last Congress. His strategic thinking was instrumental in achieving this goal. Today, Richard Hertling is retiring, and we in the House are losing a smart attorney and good friend. But the Senators, members of the House and staff who worked with him will also miss his tutorials in ancient history and his use of Latin in everyday conversations. We thank him for his service to his country, and wish him the best on his well-deserved retirement.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I yield as much time as he may consume to the gentleman from California, Kevin McCarthy, the majority whip and, I might add, the originator and author of this bill.

Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and to include extraneous material on H.R. 667, the bill now under consideration.

Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 667) to redesignate the Dryden Flight Research Center as the Neil A. Armstrong Flight Research Center and the Western Aeronautical Test Range as the Hugh L. Dryden Aeronautical Test Range.

Mr. SMITH of Texas. I yield myself 1 minute. Mr. Speaker, let me thank the gentlewoman from Maryland--who is also the ranking member of the Space Subcommittee--for her comments, particularly for her personal comments, and I certainly share her concerns about the severe cuts that NASA and our space exploration programs might take if the sequestration goes into effect, but I also feel compelled to point out that there is a way to avoid that sequestration. The House of Representatives, under the Republican leadership, has already passed two bills that would take the place of the sequestration, and the Senate has yet to act. After all, the sequestration was the President's idea to start with, so I hope we will hear from the President and the Senate various suggestions as to how the sequestration can be avoided, but the House has certainly done its job to avoid those heavy-handed cuts. With that, I yield back the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.

Mr. SMITH of Texas. Mr. Speaker, we are prepared to close. We have no other speakers, and I'm prepared to yield back the balance of my time after the gentlewoman from Maryland.

Mr. SMITH of Texas. Mr. Speaker, I believe we have one additional speaker.

Mr. SMITH of Texas. Mr. Speaker, I will recognize the gentleman from California (Mr. Rohrabacher) for as much time as he may consume, and I also note that he is the vice chairman of the Science, Space, and Technology Committee.

Mr. SMITH of Texas. I yield myself as much time as I may consume. Mr. Speaker, I want to thank the gentleman from California, Majority Whip Kevin McCarthy, for honoring Neil Armstrong and NASA Deputy Administrator Hugh Dryden with this bill. Not many people know the relationship between these two men. Hugh Dryden was the visionary behind NASA's X-15 rocket plane and the Apollo program. Neil Armstrong was the one who flew the spacecraft that Dryden envisioned. The X-15 rocket plane set many speed and altitude records in the early 1960s. Hugh Dryden was the engineer and program manager for that spacecraft which Neil Armstrong flew seven times. While everyone knows that Neil Armstrong was the first man to set foot on the Moon, not many people know Hugh Dryden's role. The Soviets had launched the first satellite Sputnik in 1957, and cosmonaut Yuri Gargarin became the first man in space in April 1961. President John F. Kennedy wanted to demonstrate American ingenuity and technical superiority over the Soviet Union, so he convened the National Space Council. President Kennedy asked for their advice on the best way for America to respond to the Soviet's string of firsts in space exploration. In that meeting, Hugh Dryden recommended to the President that the goal of putting a man on the Moon within 10 years was achievable and something the American people could rally behind. The rest is history. President Kennedy grabbed Hugh Dryden's idea and addressed a joint session of Congress the very next month. The Apollo program was the brainchild of Hugh Dryden. Neal Armstrong turned that dream into reality by making that ``one small step for a man, one giant leap for mankind'' on another world almost 240,000 miles away. Hugh Dryden was not able to see his dream become reality, as he died in 1965. And, unfortunately, Neil Armstrong passed away last August. It is important for us to honor both men's legacies by naming the Flight Research Center after Neil Armstrong and the surrounding Test Range after Hugh Dryden. With this bill, we reaffirm that America is filled with dreamers like Hugh Dryden, and doers like Neil Armstrong, who--working together--can ``shoot for the Moon.'' Thanks to Mr. McCarthy, we honor their legacy, and that reminds us that America always needs to think about new frontiers. I encourage my colleagues to support this bill. Mr. Speaker, I yield as much time as he may consume to the gentleman from Texas (Mr. Hall), former chairman of this committee.

Mr. SMITH of Texas. I yield 3 minutes to the gentleman from California (Mr. Calvert), who has long been an able spokesman on the issues related to space.

Mr. SMITH of Texas

Mr. SMITH of Texas. First of all, I want to thank the gentleman from Texas (Mr. Poe) for organizing this Special Order tonight. Mr. Speaker, today's Special Order is to honor our friend, colleague and a true American patriot, Congressman Sam Johnson, and his 40th anniversary of freedom. Congressman Johnson has a long history of serving our country. He spent 29 years in the United States Air Force and flew 87 combat missions during the Korean and Vietnam wars. He was awarded two Silver Stars, the Distinguished Flying Cross, a Bronze Star with Valor, and has received many other recognitions. Today, we celebrate Operation Homecoming and observe the 40th anniversary of his release from a Vietnamese prisoner-of-war camp. Congressman Sam Johnson was captured and held for 7 years in a POW camp in Vietnam. He spent 42 months in solitary confinement--an unfortunate record. Though tested both physically and mentally, almost beyond comprehension, his unwavering love of God and country remained steadfast. A firsthand account of Congressman Johnson's experience in the Vietnamese POW camp can be found in his riveting and inspiring book, ``Captive Warriors,'' which will cause you to weep. His commitment to his country was matched only by his wife Shirley's commitment to him. Friends say she set a seat at the table every night while he was gone with the hope and expectation that he would come home. After his release, Congressman Johnson started a homebuilding business from the ground up. Then he was elected to the Texas House of Representatives for 7 years, and he has now represented Texas' Third Congressional District since 1991. It is a professional honor and a personal privilege to serve with Congressman Sam Johnson. Today, we thank him for his service to our country and to the American people.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, pursuant to clause 2(a)(2) of House of Representatives rule XI, I hereby submit the rules of the Committee on Science, Space, and Technology:

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I have amendments at the desk.

Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent to take from the Speaker's table the bill (S. 3250) to amend the DNA Analysis Backlog Elimination Act of 2000 to provide for Debbie Smith grants for auditing sexual assault evidence backlogs and to establish a Sexual Assault Forensic Evidence Registry, and for other purposes, and ask for its immediate consideration in the House.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent to take from the Speaker's table the bill (H.R. 6586) to extend the application of certain space launch liability provisions through 2014, with the Senate amendment thereto, and concur in the Senate amendment.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I submit the following. Section-by-Section Summary (a) Advice of Counsel. The AIA's section 17 created a new Sec. 298 of title 35 that bars the use of evidence of an accused infringer's failure to obtain advice of counsel, or his failure to waive privilege and introduce such opinion, to prove either willfulness or intent to induce infringement. Section 17, however, neglected to specify when this new authority became effective. As a result, Sec. 298 is subject to the default effective date at section 35 of the AIA, and applies only to patents issued one year or later after enactment of the AIA. This subsection makes Sec. 298 applicable to all civil actions commenced after the enactment of this Act. (b) Transitional Program for CBMs. This subsection corrects two scrivener's errors in section 18 of the AIA. These changes have no substantive effect. (c) Joinder of Parties. This subsection corrects a scrivener's error in the new Sec. 299 of title 35. This change has no substantive effect. (d) Dead Zones. This subsection fixes two provisions that inadvertently make it impossible to seek either post-grant or inter partes review of a patent during certain time periods. Section 311(c) of title 35 bars anyone from seeking inter partes review of a patent during the first nine months after the patent issues, or until a post-grant review of a patent is completed if such review is instituted. Section 311(c) was intended to preclude challengers from using IPR during the period when they can instead use PGR. The problem with the provision is that, during Senate floor consideration of the AIA in March 2011, another provision was added to the bill via the managers' amendment that allows only first-to-file patents to be challenged in PGR. This provision, at section 6(f)(2)(A) of the AIA, was intended to allow USPTO a longer period to prepare to conduct PGR proceedings, and to exclude patents that raise discovery-intensive invention-date and loss-of-right-to-patent issues from PGR. However, Sec. 311(c) takes effect and applies to all petitions for IPR that are filed on or after September 16, 2012. Yet for several years thereafter, almost all patents that are issued will still be first-to-invent patents. And under Sec. 311(c) of title 35, these patents cannot be challenged in IPR during the first 9 months after their issuance, while under section 6(f)(2) of the AIA, these patents cannot be challenged in PGR. Paragraph (1) eliminates this nine month ``dead zone'' by making Sec. 311(c) inapplicable to patents that are first-to-invent patents and are thus ineligible for PGR. Paragraph (2) addresses another dead zone that is unique to reissue patents. Under Sec. 311(c) of title 35, IPR cannot be sought during the nine months after a patent is reissued. This limit was imposed in order to force challengers to bring a PGR challenge (rather than IPR) against what is, in effect, a new patent. However, Sec. 325(f) of title 35 then bars a challenge to any claim in a reissue patent that is ``identical'' to or ``narrower'' than the claims in the original patent. As a result, such ``identical'' or ``narrower'' claims could not be reviewed in either a PGR or an IPR during the nine months after a reissue. Paragraph (2) eliminates this dead zone by repealing section 311(c)(1)'s limit on filing a petition for inter partes review after a patent has been reissued. (e) Correct Inventor. This subsection amends the authorization of settlement in derivation proceedings to refer to ``correct inventor'' in the singular, out of recognition of the fact that it is the entire inventive entity that must be named in the settlement agreement. This change has no substantive effect. (f) Required Oath. Paragraph (1) liberalizes the time allowed for an applicant to file the required oath or alternative statement, allowing him to file as late as payment of the issue fee (rather than requiring filing prior to allowance). Paragraph (2) corrects Sec. 115(g)(1) by using ``that claims'' rather than ``who claims,'' since the antecedent for these words is ``application'' rather than ``inventor.'' Paragraph (2)'s change has no substantive effect. (USPTO requests.) (g) Travel Expenses and Payment of Administrative Judges. Section 21 of the AIA, which makes minor changes to the law regarding the compensation of USPTO employees for travel and the payment of APJs, was not given its own effective date. This subsection makes these provisions effective upon enactment of the AIA. (h) Patent Term Adjustments. This subsection clarifies and improves certain requirements for seeking patent-term adjustments. These changes allow USPTO to provide notice of its PTA determination at the same time as the grant of a patent, and effectively require an applicant who wishes to pursue a civil action under paragraph (4)(A) of Sec. 154(b) to exhaust remedies provided under paragraph 3(B)(ii). These changes are minor, and only apply prospectively to PTAs that are determined and to Sec. 154(b)(4)(A) actions that are commenced after the enactment of this Act. (USPTO request.) The Committee is aware that the district court for the Eastern District of Virginia, on November 1 of this year, issued a decision in the case of Exelixis v. Kappos that appears to have adopted a highly problematic interpretation of the patent term adjustment allowed by Sec. 154(b)(1)(B). For reasons that remain unclear, the court concluded that continuations and other events described in the ``not including'' clauses of that subparagraph should not be excluded from the subparagraph's calculation of patent term adjustment, but instead must be read only to toll the three- year clock that determines when patent term adjustment begins to accrue under subparagraph (B). The district court's interpretation of subparagraph (B) thus would allow patent term adjustment to accrue for any continued examination sought after the three-year clock has run. Such a result, of course, would allow applicants to postpone their patent's expiration date through dilatory prosecution, the very submarine-patenting tactic that Congress sought to preclude in 1994 when it adopted a 20-year patent term that runs from an application's effective filing date. Despite the absurd and undesirable results that would appear to flow from the district court's interpretation, the Committee declines to address this matter at this time. This case was brought to the Committee's attention only very recently, precluding the thorough consideration and consultation that is appropriate before legislation is enacted. Moreover, Congress is not in the business of immediately amending the United States Code in response to every nonfinal legal error made by a trial court. The Committee, of course, reserves the right to address this matter in the future. In the meantime, the fact that the present bill does not amend Sec. 154(b) to address the Exelixis decision should not be construed as congressional acquiescence in or agreement with the reasoning of that decision. (i) Improper Applicant. This subsection repeals an unnecessary limitation on who may file an international application designating the United States. (USPTO request.) (j) Financial Management Clarifications. This subsection makes several technical changes to Sec. 42 of title 35, concerning USPTO funding. These changes: (1) ensure that the rule requiring that patent fees be spent for patent purposes also applies to RCE fees; and (2) ensure that all USPTO administrative costs will be covered by either patent fees or trademark fees. (USPTO request.) (k) Derivation Proceedings. Currently, the third sentence of Sec. 135(a) will allow a derivation proceeding to be sought only within the year after the victim's claim that has been the target of derivation has published. It is possible, however, that a deriver could file first, but delay claiming the derived material until more than a year has elapsed after the victim's claims have published, in other words, until after the current deadline has lapsed. The changes made by this subsection preclude such a scenario by requiring the proceeding to be sought during the year after the publication of the deriver's claim to the invention. These changes also add a definition of ``earlier application'' to Sec. 135(a), correct inconsistencies in the AIA's version of Sec. 135(a), and authorize the PTAB to conduct, and the courts to hear appeals of, interferences commenced after the effective date of the AIA's amendments to Sec. 135(a). (USPTO request.) (I) Terms of Public Advisory Committee Members. This subsection makes the terms of PPAC and TPAC members run for 3 years from a fixed date (rather than from the date that they are appointed), and requires Chairmen and Vice Chairmen to be designated from among existing members. (Current law designates only a Chairman and gives him a 3-year term.) These changes will produce better coordination of members' terms, will allow experienced Chairmen to be appointed without requiring such individuals to serve two 3-year terms, and will provide for automatic replacement of a Chairman who does not complete his term of service. (AIPLA request.) (m) Report on pre-GATT Applications. The URAA amendments took effect on June 8, 1995 but were made inapplicable to applications filed before that effective date. Unfortunately, a small number of applicants may have engaged in clearly dilatory behavior and continue to maintain pending applications with effective-filing dates that precede the URAA effective date. It is highly unlikely that the 103d Congress ever conceived that its amendments to Sec. 154(a) would remain inapplicable to applications still pending in this Congress. The issuance of any such patent at this late date would be grossly prejudicial to the public. Many of these applications claim invention dates in the 1980s, and some even claim priority dates in the 1970s. To remove such technology from the public domain in 2012 would work a clear injustice on the public, and would bear no relation to the patent system's purpose of promoting the progress of science and the useful arts. An earlier version of this Act included a provision that would have required these applicants to complete prosecution of these applications promptly after the enactment of the Act. To avoid controversy that might delay the enactment of this Act, the present Act substitutes the earlier proposal with a requirement that USPTO issue a report that will provide Congress and the public with relevant information about these applications. The Committee expects that the report will contribute to an understanding of whether these applications present special circumstances that require further legislative, executive, or judicial action in order to ensure transparency and protect the public's interests. (n) Micro Entity Definition. This subsection corrects a scrivener's error in the AIA's definition of the ``micro entities'' that are entitled to a fee reduction. This change has no substantive effect. (o) Default Effective Date. This subsection provides that the amendments made by this Act apply to proceedings commenced on or after the enactment of the Act, except where the provisions of the Act include their own effective date or modify an existing law's effective date. Other Issues for Future Consideration Post-Grant Review Could-Have-Raised Estoppel. The version of post-grant review that was enacted by the Leahy-Smith America Invents Act bars a petitioner who completes such a review from challenging any of the claims of the patent that were reviewed in the proceeding on any ground that the petitioner ``could have raised'' in the post-grant review. Although this broad estoppel first appeared in the bill that was reported by the House Judiciary Committee in June 2011, no amendment adopted by the committee authorized such a change. The change appears to have been made by staff charged with making technical corrections to the bill, who apparently assumed that the omission of could-have-raised estoppel in Sec. 325(e)(2) was an oversight. The application of a civil-litigation could-have-raised estoppel to PGR would cripple that proceeding if it is not corrected. All validity issues can be raised in PGR, and must be raised during the first nine months of the patent's life and without the benefit of discovery. Thus if could-have- raised estoppel were applied to PGR, a PGR challenger would effectively have to waive the possibility of raising any validity defense against the patent if he is later sued for infringement--and all without an opportunity to adequately investigate enablement and other discovery-intensive issues. In order to ensure that the post-grant review system that USPTO has recently implemented does not simply become a white elephant, it is important that this scrivener's error be corrected in the future. And, lest anyone suggest that the correction of this error is properly regarded as controversial, allow me to note that this correction would simply conform the PGR estoppel provisions to those of the bill that passed the Senate on March 8, 2011, by a vote of 95-5.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, I thank the gentleman from Texas, the chairman of the Science, Space, and Technology Committee for yielding me time. Madam Speaker, first I want to thank the gentleman from California, Majority Whip Kevin McCarthy, for honoring both Neil Armstrong and NASA Deputy Administrator Hugh Dryden with this bill. Not many people know the relationship between these two men. Hugh Dryden was the visionary behind NASA's X-15 rocket plane and the Apollo program, and Neil Armstrong was the one who actually flew the spacecraft that Dryden envisioned. The X-15 rocket plane set many speed and altitude records in the early 1960s. Hugh Dryden was the engineer and program manager for that spacecraft, which Neil Armstrong flew seven times. While everyone knows that Neil Armstrong was the first person to set foot on the Moon, not many people know Hugh Dryden's role. The Soviets launched the first satellite, Sputnik, in 1957, and Cosmonaut Yuri Gagarin became the first man in space in April 1961. President John F. Kennedy was looking for a way to demonstrate American ingenuity and technical superiority over the Soviet Union, so he convened the National Space Council and asked for their advice on the best way for America to respond to the Soviets' string of firsts in space exploration. Hugh Dryden was the person in that meeting who recommended to the President that the goal of putting a person on the Moon within 10 years was achievable and something the American people could rally behind. The rest is history. President Kennedy grabbed Hugh Dryden's idea and addressed a joint session of Congress the very next month. The Apollo program was the brainchild of Hugh Dryden, and Neil Armstrong turned that dream into reality by making that ``one small step for man, one giant leap for mankind'' on another world almost 240,000 miles away. Hugh Dryden was not able to see his dream become reality, as he died in 1965, and, unfortunately, Neil Armstrong passed away last August. It is important for us to honor both men's legacies by naming the flight research center after Neil Armstrong and the surrounding test range after Hugh Dryden. With this bill, we reaffirm that America is filled with dreamers like Hugh Dryden and doers like Neil Armstrong, who, working together, can shoot for the Moon. Again, Madam Speaker, I want to thank Congressman McCarthy for honoring their legacy, which reminds us that America always needs to think about new frontiers.

Mr. SMITH of Texas

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

Mr. SMITH of Texas. 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 the matter currently under consideration.

Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 6029) to amend title 18, United States Code, to provide for increased penalties for foreign and economic espionage, and for other purposes.

Mr. SMITH of Texas

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