Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. I yield myself such time as I may consume. Mr. Speaker, this September 11 marks the 10-year anniversary of the worst terrorist attack in U.S. history. America is fortunate not to have suffered another attack of such magnitude and devastation in the past decade. America has remained safe but not because those who are determined to deny us our freedoms and destroy our way of life have given up. We are safe because of the men and women who serve our country with devotion and distinction--those who serve in our Armed Forces, our intelligence community, and our law enforcement agencies. These public servants and their families make tremendous sacrifices to keep us safe and to keep terrorists on the run. Their work is often unrecognized and underappreciated. In addition to ensuring that terrorists are denied victory, some of our public servants also protect us from crime and ensure that justice is served. The agency that is charged with this unique duty is the Federal Bureau of Investigation. The FBI director is limited to a 10-year nonrenewable term. Congress imposed this restriction to ensure political independence and to act as a restraint on unbridled power and the potential for misuse of that power. In just a few weeks, the current FBI director, Robert S. Mueller, III, will conclude his 10-year term. The President has asked for a one- time 2-year extension for Mr. Mueller to ensure continuity in America's national security team. The killing of Osama bin Laden and personnel changes in key national security posts make these unusual times that justify a short-term extension. Director Mueller has shown himself a dedicated public servant who has kept terrorists at bay and reduced crime. Mr. Mueller assumed leadership of the FBI on September 4, 2001, just 1 week prior to the attacks of September 11, 2001. During his tenure, he has reformed the FBI to ensure that it is able to address not only terrorist threats, but also threats posed by traditional criminals. This request for an extension was made not by Mr. Mueller but by the President of the United States. Mr. Mueller has agreed to accept this extension if it is approved by Congress. It's not every day that the House, the Senate, and the White House can agree, but this is something we all can agree is essential. This bill creates a new, one time only 2-year term of service for the director of the Federal Bureau of Investigation. Mr. Mueller will be eligible to be appointed to this new term of service with the advice and consent of the Senate. The Senate will hold a confirmation vote after the President signs this bill. This new term would expire on September 4, 2013, after which, Mr. Mueller would no longer serve as director. This bill does not prevent the President from appointing a different individual to a new tenured term by and with the advice and consent of the Senate. If the President wants to continue the services of the incumbent, this bill allows that to happen for a limited time and in a constitutional manner. I urge my colleagues to support this bill to continue the service of FBI Director Robert S. Mueller, III, for an additional 2 years. Mr. Speaker, I reserve 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 material on S. 1103, currently under consideration.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, on behalf of myself and Ranking Member Conyers, I would like to take this opportunity to recognize John D. Filamor who is leaving the House to take a position with the Department of Justice. Mr. Filamor served in the Office of the General Counsel for 10 years, first as a law clerk while he was still a student at George Washington University Law School; from 2001-10 as an Assistant Counsel; and more recently as a Senior Assistant Counsel. We will miss him. Mr. Filamor provided frequent and invaluable legal advice and representation to the House Committee on the Judiciary, as well as to Members, officers and other committees of the House more generally. Our staff came to rely on his expertise and guidance in connection with many of their investigative and oversight activities, as well as in connection with the Committee's interactions with the other branches of the Federal Government. Over the years, Mr. Filamor played a significant role in safeguarding the legal and institutional interests of the House of Representatives. Mr. Filamor served the House with great distinction, and we know he will serve the Department of Justice with that same level of distinction. On behalf of the House Committee on the Judiciary, we thank him for his many years of devoted service, and extend to him our very best wishes for his continued success.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker. I submit the following. Media Fairness Caucus--A Look at Media Bias Rep. Lamar Smith (R-TX), Chairman Rep. Jack Kingston (R-GA), CoChair Rep. Michele Bachmann (R-MN), CoChair Media's Liberal Bias Distorts Fair Coverage From U.S. News & World Report: ``The liberal bias of the mainstream media tilts so far left that any outlets not in that political lane, like the Drudge Report and Fox News Channel, look far more conservative than they really are, according to a UCLA professor's new book out next month. ``In a crushing body blow to the pushers of the so-called `Fox Effect,' which claims the conservative media is dragging the left into the center, UCLA political science professor Tim Groseclose in Left Turn claims that `all' mainstream news outlets have a liberal bias in their reporting that makes even moderate organizations appear out of the mainstream and decidedly right-wing to news consumers who are influenced by the slant.'' In the book, Groseclose writes: ``Fox News is clearly more conservative than ABC, CBS, CNN, NBC and National Public Radio. Some will conclude that `therefore, this means that Fox News has a conservative bias.' Instead, maybe it is centrist, and possibly even left-leaning, while all the others are far left. It's like concluding that six-three is short just because it is short compared to professional basketball players.'' Americans See Media as Biased, Liberal Two-thirds of Americans believe that reporters try to help the candidate they want to win an election, according to a recent Rasmussen public opinion poll. Only 2 in 10 think reporters try to offer unbiased coverage. The survey also found that almost half of Americans think reporters would hide any damaging information about the candidate they wanted to win. And by more than two-to-one, Americans say the average reporter is more liberal than they are, rather than more conservative. If the national media want to earn Americans' trust, they should give them the facts, not tell them what to think. First Lady Thanks Media for ``Support'' and ``Kindness'' During a recent interview on CNN, First Lady Michelle Obama thanked the national media for their ``support'' and ``kindness.'' Below is an excerpt from the interview: CNN reporter: ``How's the family ready for this [the election]? It's going to be quite vicious, isn't it? How do you prepare for that?'' First Lady Michelle Obama: ``You know, it's . . . we're ready, you know. Our children, you know, could care less about what we're doing. We work hard to do that. Fortunately, we have help from the media. I have to say this: I'm very grateful for the support and kindness that we've gotten. People have respected their privacy and in that way, I think, you know, no matter what people may feel about my husband's policies or what have you, they care about children and that's been good to see.''

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Chair, H.R. 1249 makes a significant change to the system by which patents are filed and granted in the United States. Moving to a first-inventor-to-file system will modernize and harmonize our patent system with our international trading partners. In so doing, we recognize that we are also modifying other parts of our patent system as part of this change. One key part of the transition that has already been recognized by the House Judiciary Committee is the necessary inclusion of prior user rights under the new first-inventor-to-file system. The inclusion of prior user rights is essential to ensure that those who have invented and used a technology but choose not to disclose that technology-- generally to ensure that they not disclose their trade secrets to foreign competitors--are provided a defense against someone who later patents the technology. Even as we make this make this change, we recognize that uncertainty remains as to the appropriate scope of the prior-user-rights defense and how best to provide protections for America's most innovative companies. H.R. 1249 takes steps to explore these issues, including requiring an important PTO study of prior user rights and whether we should expand the defense created by the America Invents Act. One important area of focus will be how we protect those who make substantial investments in the development and preparation of proprietary technologies. For example, in the semiconductor industry, the design of a state of the art processor takes roughly three years from the high-level specification to the production of the first silicon, at a cost of billions of dollars. Inventions such as these, which are present throughout our economy, should be protected. I should also note that parties who commercialize a product will still be able to assert a defense of prior art invalidation. Upon release of the forthcoming PTO report, we may introduce legislation that implements its conclusions and refines the nature and scope of the prior-user rights defense. This will ensure that our most innovative companies who hold many of the keys to U.S. economic competitiveness are provided sufficient prior user right protections to put them on an even competitive field internationally.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Chair, I claim the time in opposition, although I support the amendment.

Mr. SMITH of Texas. Madam Chair, I just want to say to the gentlewoman from Wisconsin that I appreciate her offering the amendment, and I urge my colleagues to support it.

Mr. SMITH of Texas. Will the gentlewoman yield?

Mr. SMITH of Texas. I yield myself the balance of my time. Madam Chair, I oppose the amendment to change the effective date for the tax strategy method section of the bill. It is possible to patent tax strategy methods, but it is bad policy. It is not fair to permit patents on techniques regularly used to satisfy a government mandate, such as one that requires individuals and businesses to pay taxes. Tax preparers, lawyers, and planners have a long history of sharing their knowledge regarding how to file returns, plan estates, and advise clients. They maintain that allowing the patentability of tax strategy methods will complicate the tax filing process and inhibit the ability of preparers to provide quality services for their clients. The effective date applies to any patent application that is pending on, or filed on or after, the date of enactment and to any patent that is issued on or after that date. The gentleman's amendment eliminates the application of this provision to those applications pending on the date of enactment. These applications have not been approved so I disagree with excluding these patents-in-waiting. It was a mistake for the PTO to issue these patents in the first place, given their potential to harm individual taxpayers and tax return preparers. We shouldn't leave the door ajar by allowing more applications in. This just compounds the very problem we're trying to solve. I oppose the gentleman's amendment, and I urge my colleagues to vote against it. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, I claim the time in opposition, although I support the amendment.

Mr. SMITH of Texas. Madam Chair, in 2001, a biotech entity called the Medicines Company, or MedCo, submitted an application for a patent extension that the PTO ruled was 1 day late. This application would have extended patent protection for a drug the company developed called Angiomax. In August 2010, a U.S. district court ordered the PTO to use a more consistent way of determining whether the patent holder submitted a timely patent extension application. The PTO is implementing that decision and believes the court's decision resolves the problem for MedCo. Because of this ongoing litigation, the manager's amendment struck language pertaining to MedCo. The Conyers amendment seeks to reinsert that provision. The Conyers amendment essentially codifies the district court's decision, but it ignores the fact that this case is on appeal. We need to let the courts resolve the pending litigation. It is standard practice for Congress not to interfere when there is ongoing litigation. If the Federal circuit rules against MedCo, generic manufacturers of the drug could enter the marketplace immediately rather than waiting another 5 years. This has the potential to save billions of dollars in health care expenses. While the amendment is drafted so as to apply to other companies similarly situated, as a practical matter, this is a special fix for one company. Finally, it would be more appropriate for this to be considered as a private relief bill. Private relief bills are designed to provide benefits to a specific individual or corporate entity. The House and the Judiciary Committee have procedures in place to ensure that such bills are properly vetted. This amendment ignores those procedures and denies Members the opportunity to know the consequences of what they are voting on. To summarize, Madam Chair, we should not interfere with ongoing litigation which may be unprecedented, and we should give this issue regular process in the Judiciary Committee. I oppose the amendment and urge my colleagues to defeat it. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, the gentleman's amendment strikes the first-inventor-to-file provisions from the bill. I strongly oppose the amendment. The move to a first-inventor-to-file system creates a more efficient and reliable patent system that benefits all inventors, including independent inventors. This provision provides a more transparent and certain grace period, a key feature of U.S. law, and a more definite filing date that enables inventors to promote, fund, and market their technology while making them less vulnerable to costly patent challenges that disadvantage independent inventors. The first-inventor-to-file system is absolutely consistent with the Constitution's requirement that patents be awarded to the inventor. Former Attorney General Michael Mukasey has stated that the ``provision is constitutional and helps assure that the patent laws of this country accomplish the goal set forth in the Constitution: `to promote the Progress of Science and useful Arts.' '' Under first-inventor-to-file, patent rights are reserved to someone who independently conceived of an invention before it was in the public domain. And under the Constitution, that is what is required to be considered an ``inventor.'' In fact, early American patent law, that of our Founders' generation, did not concern itself with who was the first to invent. The U.S. operated under a first-inventor-to-register system for nearly half a century, starting in 1790. The first-inventor-to-register system is similar to first-inventor-to-file, a system that the Founders themselves supported early in our Nation's history. The courts did not even concern themselves with who was the first person to invent until 1870, with the creation of interference proceedings. Those proceedings are the ones that disadvantage independent inventors and small businesses. And over the years, and in subsequent revisions of the law, those proceedings have morphed into a costly litigation tactic. Under first-inventor-to-file, an inventor submits an application to the Patent Office that describes their invention and how to make it. That, along with just a $110 fee, gets them a provisional application and preserves their filing date. This allows the inventor an entire year to complete the application, while retaining the earlier filing date. By contrast, the cost of an interference proceeding in today's law could run an inventor $500,000. Accusations that the bill doesn't preserve the 1-year grace period are simply false. This bill provides a stronger, more transparent and certain 1-year grace period for disclosures. This enhances protection for inventors who have made a public or private disclosure of their invention during the grace period. The grace period protects the ability of an inventor to discuss or write about their ideas for a patent up to 1 year before they file for patent protection. These simple requirements create a priority date that is fixed and public so that everyone in the world can measure the patent against competing applications and patents and relevant prior art. In addition, many inventors also want protection for their patents outside of the United States. If you plan on selling your product overseas, you need to secure an early filing date. If you don't have a clear filing date, you can be shut out from the overseas market. A change to a first-inventor-to-file system will help our businesses grow and ensure that American goods and services will be available in markets across the globe. The current first-to-invent system seriously disadvantages small businesses and independent inventors. Former PTO Commissioner Gerald Mossinghoff conducted a study that proved smaller entities are disadvantaged in PTO interference proceedings that arise from disputes over patent ownership under the current system. In the last 7 years, only one independent inventor out of 3 million patent applications filed has proved an earlier date of invention than the inventor who filed first. Madam Chair, let me repeat that: in the last 7 years, only one independent inventor out of 3 million patent applications filed has proved an earlier date of invention than the inventor who filed first. Independent inventors lose to other applicants with deeper pockets that are better equipped to exploit the current complex legal environment. So the first-inventor-to-file change makes it easier and less complicated for U.S. inventors to secure their patent rights, and it protects their patents overseas. And it eliminates the legal bills that come with interference proceedings under the current system. It is a key provision of this bill. Madam Chair, the amendment should not be approved, and I urge my colleagues to vote against it. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, I rise in opposition to the amendment.

Mr. SMITH of Texas. Madam Chair, I understand the underlying point of the Member's amendment, but other legislation and patent reform in particular have taught us that even small changes can have unintended consequences unless they have been vetted and have gone through the regular committee process. The problem is in the details. This amendment is drafted as a study. I agree with the first part of the amendment but not the second because its objectives are written very much like a piece of legislation. It seeks to create support for a new program whereby taxpayer funds would be used to pay patent fees in foreign countries. I am strongly committed to helping our small businesses and independent inventors secure their rights and have a level playing field abroad, but I can't support a result that could create a new entitlement program, a new bureaucracy and the transferring of taxpayer dollars directly to the treasuries of foreign governments. We should not use taxpayer funds to pay patent filing fees to foreign governments. I do agree with the first part of this study, and am interested to see how the PTO, in coordination with other agencies, can figure out ways to help small businesses with international patent protection. I hope that this will be the focus of the study. The results of this study will show that small business outreach and educational and technical assistance programs are the most effective tools for small business and independent inventors. I think that the PTO needs to continue its efforts to reach out to small businesses and independent inventors. This bill includes a provision which creates a permanent small business ombudsman at the PTO to work with small businesses to help them secure their patent rights. The PTO also conducts small business outreach programs throughout the country, teaching small businesses about IP enforcement and how to protect their intellectual property both at home and abroad. Though I do not agree with the policy outline in the second part of the study and will strongly recommend that the PTO and SBA determine that such a program should not be established, I will support this amendment to initiate the study, and I hope that the bulk of it will focus on how to better utilize existing government resources for education and technical assistance to help small businesses with international patent protection. Before I yield back the balance of my time, I hope that the movers of this amendment might be willing to reassure me and others about the intent and goals of this study. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, I rise in opposition to the amendment.

Mr. SMITH of Texas. Madam Chair, section 23 of the bill requires the PTO Director to establish three or more satellite offices in the United States, subject to available resources. The provision lists criteria that the Director must take into account when selecting each office. This is a good addition to H.R. 1249, and I urge my colleagues to support it. I also hope that one of those offices is in Austin, Texas. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, I claim the time in opposition, although I support the amendment.

Mr. SMITH of Texas. Madam Chair, I understand the underlying point of the Member's amendment, and I want to make it clear that my interpretation of this amendment and its intent is to highlight the problem posed by entities that pose as financial or technological businesses but whose sole purpose is not to create but to sue. I am talking about patent trolls--those entities that vacuum up patents by the hundreds or thousands and whose only innovations occur in the courtroom. This sense of Congress shows how these patent trolls can hurt small businesses and independent inventors before they even have a chance to get off the ground. This bill is designed to help all inventors and ensure that small businesses will continue to be a fountain for job creation and innovation. For these reasons, Madam Chair, I support the amendment. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, the Conyers amendment to tie the changes proposed in the America Invents Act to future changes that would be made in foreign law is unworkable. I oppose providing a trigger in U.S. law that leaves our patent system at the mercy of actions to be taken at a future date by the Chinese, Russians, French, or any other country. It is our constitutional duty to write the laws for this great land. We cannot delegate that responsibility to the whims of foreign powers. I know that this idea has been floated in the past, but after working on several pieces of patent legislation over the past several Congresses, and particularly this year on H.R. 1249, it has become clear that this type of trigger idea is simply not workable and is counterproductive. The move to a first-inventor-to-file system creates a more efficient and reliable patent system that benefits all inventors, including independent inventors. The bill provides a more transparent and certain grace period, a key feature of U.S. law, and a more definite filing date that enables inventors to promote, fund, and market their technology, while making them less vulnerable to costly patent challenges that disadvantage independent inventors. Under first-inventor-to-file, an inventor submits an application to the Patent Office that describes their invention and how to make it. That, along with a $110 fee, gets them a provisional application and preserves their filing date. This allows the inventor an entire year to complete the application, while retaining the earlier filing date. By contrast, the cost of an interference proceeding before the PTO often runs to $500,000. The current first-to-invent system harms small businesses and independent inventors. Former PTO Commissioner Gerald Mossinghoff conducted a study that proves smaller entities are disadvantaged in PTO interference proceedings that arise from disputes over patent ownership under the current system. Independent inventors and small companies lose more often than they win in these disputes, plus bigger companies are better able to absorb the cost of participating in these protracted proceedings. In addition, many inventors also want protection for their patents outside the United States. If you plan on selling your product overseas, you need to secure an early filing date. If you don't have a clear filing date, you can be shut off from the overseas market. A change to first-inventor-to-file will help our businesses grow and ensure that American goods and services will be available in markets across the globe. In the last 7 years, only one independent inventor out of 3 million patent applications filed has prevailed over the inventor who filed first. One out of 3 million. So there is no need for this amendment. Independent inventors lose to other applicants with deeper pockets that are better equipped to exploit the current complex legal environment. So the first-to-file change makes it easier and less complicated for U.S. inventors to get patent protection around the world. And it eliminates the legal bills that come with the interference proceedings under the current system. It is a key provision of this bill that should not be contingent upon actions by foreign powers and delay what would be positive reforms for independent inventors and our patent system. The first-inventor-to-file provision is necessary for U.S. competitiveness and innovation. It makes our patent system stronger, increases patent certainty, and reduces the cost of frivolous litigation. However, if you support the U.N. having military control over our troops, or if you support the concept of an international court at The Hague, then you would support this amendment's proposal of a trigger that subjects U.S. domestic law to the whims of governments in Europe, China, or Russia. It really would be unprecedented to hold U.S. law hostage to legal changes made overseas, and would completely go against what this great country stands for and what our Founders fought for: the independent rights and liberties we have today. For these reasons, Madam Chair, I am strongly opposed to the amendment. I yield back the balance of my time.

Mr. SMITH of Texas. Madam Chair, I rise to claim the time in opposition, though I am in favor of the amendment.

Mr. SMITH of Texas. I yield 2 minutes to the gentleman from Virginia (Mr. Goodlatte), who is the chairman of the Intellectual Property Subcommittee of the Judiciary Committee.

Mr. SMITH of Texas. I rise in opposition to the amendment.

Mr. SMITH of Texas. Madam Chair, I think this is a good amendment. I urge my colleagues to support it. I yield back the balance of my time.

Mr. SMITH of Texas. I rise in opposition to the amendment.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Chair, I submit: (1) Manager's Statement on Supplemental Examination; (2) Manager's Statement on Genetic Test Study proposed in the Managers; (3) Statement on the codification of the Weldon amendment; (4) Statement on the business method patent transitional program; (5) Statement on the PTO fee compromise provision in the Manager's amendment; (6) November 2003 letter on the Weldon amendment from PTO Director James Rogan; (7) Information on the Weldon amendment from the Family Research Council. Chairman's Floor Remarks/Manager's Statement: Supplemental Examination in H.R. 1249 Mr. Speaker, this bill also contains a very important new administrative proceeding available to patent owners, to help improve the quality of issued patents. This new ``Supplemental Examination'' procedure encourages the voluntary and proactive disclosure of information that may be relevant to patent prosecution for the Office to consider, reconsider, or correct. The voluntary disclosure by patentees serves to strengthen valid patents, while narrowing or eliminating patents or claims that should not have been issued. Both of these outcomes promote investment in innovation by removing uncertainty about the scope, validity or enforceability of patents, and thus the use of this new proceeding by patent owners is to be encouraged. Subparagraph (C) relating to Supplemental Examination is intended to address the circumstance where, during the course of a supplemental examination or reexamination proceeding ordered under this section, a court or administrative agency advises the PTO that it has made a determination that a fraud on the Office may have been committed in connection with the patent that is the subject of the supplemental examination. In such a circumstance, subparagraph (C) provides that, in addition to any other actions the Director is authorized to take, including the cancellation of any claims found to be invalid under section 307 as a result of the reexamination ordered under this section, the Director shall also refer the matter to the Attorney General. As such, this provision is not intended to impose any obligation on the PTO beyond those it already undertakes, or require it to investigate or prosecute any such potential fraud. Subparagraph (C) is neither an investigative nor an adjudicative provision, and, as such, is not intended to expand the authority or obligation of the PTO to investigate or adjudicate allegations of fraud lodged by private parties. Further, any referral under this subjection is not meant to relieve the Director from his obligation to conclude the supplemental examination or reexamination proceeding ordered under this section. It is important for the process to proceed through conclusion of reexamination, so that any claims that are invalid can be properly cancelled. The decision to make referrals under subsection (c) is not meant to be delegated to examiners or other agents of the PTO, but rather is a determination that should only be made by the Director himself or herself. Supplemental Examination has the potential to play a powerful role in improving patent quality and boosting investment in innovation, economic growth, and job creation. The Director should implement this new authority in a way that maximizes this potential.