S5402
`
`CONGRESSIONAL RECORD — SENATE
`
`September 8, 2011
`
`America. This transformation is not
`without enormous dangers and chal-
`lenges, but consider how much worse it
`would have been if a pro-bin Laden
`movement were fueling this trans-
`formation.
`It is plain we need more of what we
`had post-9/11 now. I am not naive. I
`know it cannot be conjured up or
`wished into existence. But if we are op-
`timistic, if we are inspired by the
`Americans who died here, if we truly
`understand our shared history and the
`sacred place compromise and ration-
`ality hold at the very center of the for-
`mation of our Nation and the structure
`of our Constitution, then we can again
`take up the mantle of shared sacrifice
`and common purpose that we wore
`after 9/11 and apply some of those be-
`haviors to the problems we now con-
`front.
`The reality of our current political
`climate is that both sides are off in
`their corners; the common enemy is
`faded. Some see Wall Street as the
`enemy many others see Washington,
`DC, as the enemy and to still others
`any and all government is the enemy.
`I believe the greatest problem we
`face is the belief that we can no longer
`confront and solve the problems and
`challenges that confront us; the fear
`that our best days may be behind us;
`that, for the first time in history, we
`fear things will not be as good for our
`kids as they are for us. It is a creeping
`pessimism that cuts against the can-do
`and will-do American spirit. And, along
`with the divisiveness in our politics, it
`is harming our ability to create the
`great works our forbears accomplished:
`building the Empire State building in
`the teeth of the Great Depression, con-
`structing the Interstate Highway Sys-
`tem and the Hoover Dam, the Erie
`Canal, and so much more.
`While governmental action is not the
`whole answer to all that faces us, it is
`equally true that we cannot confront
`the multiple and complex challenges
`we now face with no government or a
`defanged government or a dysfunc-
`tional government.
`As we approach the 10th anniversary
`of 9/11, the focus on what happened that
`day intensifies—what we lost, who we
`lost, and how we reacted—it becomes
`acutely clear that we need to confront
`our current challenges imbued with the
`spirit of 9/11 and determine to make
`our government and our politics wor-
`thy of the sacrifice and loss we suffered
`that day.
`To return to de Tocqueville, he also
`remarked that:
`The greatness of America lies not in being
`more enlightened than any other nation, but
`rather in her ability to repair her faults.
`So, like the ironworkers and oper-
`ating engineers and trade workers who
`miraculously appeared at the pile
`hours after the towers came down with
`blowtorches and hard hats in hand,
`let’s put on our gloves, pick up our
`hammers and get to work fixing what
`ails the body politic. It is the least we
`can do to honor those we lost.
`
`I yield the floor and suggest the ab-
`sence of a quorum.
`(Mr.
`The PRESIDING OFFICER
`BROWN of Ohio). The clerk will call the
`roll.
`The assistant legislative clerk pro-
`ceeded to call the roll.
`Mr. SESSIONS. Mr. President, I ask
`unanimous consent that the order for
`the quorum call be rescinded.
`The PRESIDING OFFICER. Without
`objection, it is so ordered.
`
`f
`
`CONCLUSION OF MORNING
`BUSINESS
`
`The PRESIDING OFFICER. Morning
`business is closed.
`
`f
`
`LEAHY-SMITH AMERICA INVENTS
`ACT
`
`The PRESIDING OFFICER. Under
`the previous order, the Senate will re-
`sume consideration of H.R. 1249, which
`the clerk will report by title.
`The assistant legislative clerk read
`as follows:
`An Act (H.R. 1249) to amend title 35, United
`States Code, to provide for patent reform.
`AMENDMENT NO. 600
`Mr. SESSIONS. Mr. President, I ask
`unanimous consent to call up my
`amendment No. 600, which is at the
`desk.
`The PRESIDING OFFICER. The
`clerk will report.
`The assistant legislative clerk read
`as follows:
`The Senator from Alabama [Mr. SESSIONS],
`for himself, Mr. MANCHIN, Mr. COBURN, and
`Mr. LEE, proposes an amendment numbered
`600.
`Mr. SESSIONS. Mr. President, I ask
`unanimous consent that the reading of
`the amendment be dispensed with.
`The PRESIDING OFFICER. Without
`objection, it is so ordered.
`The amendment is as follows:
`AMENDMENT NO. 600
`
`(Purpose: To strike the provision relating to
`the calculation of the 60-day period for ap-
`plication of patent term extension)
`
`On page 149, line 20, strike all through page
`150, line 16.
`Mr. SESSIONS. Mr. President, the
`amendment that I have offered is a
`very important amendment. It is one
`that I believe is important to the in-
`tegrity of the U.S. legal system and to
`the integrity of the Senate. It is a mat-
`ter that I have been wrestling with and
`objecting to for over a decade. I
`thought the matter had been settled,
`frankly, but it has not because it has
`been driven by one of the most fero-
`cious lobbying efforts the Congress
`maybe has seen.
`The House patent bill as originally
`passed out of committee and taken to
`the floor of the House did not include a
`bailout for Medco, the WilmerHale law
`firm, or the insurance carrier for that
`firm, all of whom were in financial
`jeopardy as a result of a failure to file
`a patent appeal timely.
`I have practiced law hard in my life.
`I have been in court many times. I
`
`spent 12 years as a U.S. Attorney and
`tried cases. I am well aware of how the
`system works. The way the system
`works in America, you file lawsuits
`and you are entitled to your day in
`court. But if you do not file your law-
`suit in time, within the statute of limi-
`tations, you are out.
`When a defendant raises a legal point
`of order—a motion to dismiss—based
`on the failure of the complaining party
`to file their lawsuit timely, they are
`out. That happens every day to poor
`people, widow ladies. And it does not
`make any difference what your excuse
`is, why you think you have a good law-
`suit, why you had this idea or that
`idea. Everyone is required to meet the
`same deadlines.
`In Alabama they had a situation in
`which a lady asked a probate judge
`when she had to file her appeal by, and
`the judge said: You can file it on Mon-
`day. As it turned out, Monday was too
`late. They went to the Alabama Su-
`preme Court, and who ruled: The pro-
`bate judge—who does not have to be a
`lawyer—does not have the power to
`amend the statute of
`limitations.
`Sorry, lady. You are out.
`Nobody filed a bill in the Congress to
`give her relief, or the thousands of oth-
`ers like her every day. So Medco and
`WilmerHale seeking this kind of relief
`is a big deal. To whom much has been
`given, much is required. This is a big-
`time law firm, one of the biggest law
`firms in America. Medco is one of the
`biggest pharmaceutical companies in
`the country. And presumably the law
`firm has insurance that they pay to in-
`sure them if they make an error. So it
`appears that they are not willing to ac-
`cept the court’s ruling.
`One time an individual was asking
`me: Oh, JEFF, you let this go. Give in
`and let this go. I sort of as a joke said
`to the individual: Well, if WilmerHale
`will agree not to raise the statute of
`limitations against anybody who sues
`their clients if they file a lawsuit late,
`maybe I will reconsider. He thought I
`was serious. Of course WilmerHale is
`not going to do that. If some poor per-
`son files a lawsuit against someone
`they are representing, and they file it
`one hour late, WilmerHale will file a
`motion to dismiss it. And they will not
`ask why they filed it late. This is law.
`It has to be objective. It has to be fair.
`You are not entitled to waltz into the
`U.S. Congress—well connected—and
`start lobbying for special relief.
`There is nothing more complicated
`about that than this. So a couple of
`things have been raised. Well, they sug-
`gest, we should not amend the House
`patent bill, and that if we do, it some-
`how will kill the legislation. That is
`not so. Chairman LEAHY has said he
`supports the amendment, but he
`doesn’t want to vote for it because it
`would keep the bill from being passed
`somehow.
`It would not keep it from being
`passed. Indeed, the bill that was
`
`VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.008 S08SEPT1
`
`smartinez on DSK6TPTVN1PROD with SENATE
`
`TRADING TECH EXHIBIT 2009
`TD Ameritrade v. Trading Technologies
`CBM2014-00133
`
`Page 1 of 42
`
`

`
`September 8, 2011
`
`CONGRESSIONAL RECORD — SENATE
`
`S5403
`
`brought to the House floor didn’t have
`this language in it. The first vote re-
`jected the attempt to put this language
`in it. It failed. For some reason, in
`some way, a second vote was held, and
`it was passed by a few votes. So they
`are not going to reject the legislation
`if we were to amend it.
`What kind of system are we now in-
`volved in in the Senate if we can’t undo
`an amendment? What kind of argument
`is it to say: JEFF, I agree with your
`amendment, and I agree it is right that
`they should not get this special relief,
`but I can’t vote for it because it might
`cause a problem? It will not cause a
`problem. The bill will pass. It should
`never have been put in there in the
`first place.
`Another point of great significance is
`the fact that this issue is on appeal.
`The law firm asserted they thought—
`and it is a bit unusual—that because it
`came in late Friday they had until
`Monday. We can count the days to
`Monday—the 60 days or whatever they
`had to file the answer. I don’t know if
`that is good law, but they won. The dis-
`trict court has ruled for them. It is on
`appeal now to the court of appeals.
`This Congress has no business inter-
`fering in a lawsuit that is ongoing and
`is before an appeals court. If they are
`so confident their district court ruling
`is correct, why are they continuing to
`push for this special relief bill, when
`the court of appeals will soon, within a
`matter of months, rule?
`Another point: We have in the Con-
`gress a procedure to deal with special
`relief. If this relief is necessary at all,
`it should go through as a special relief
`bill. I can tell you one reason it is not
`going there now: you can’t ask for spe-
`cial relief while the matter is still in
`litigation, it is still on appeal. Special
`relief also has procedures that one has
`to go through and justify in an objec-
`tive way, which I believe would be very
`healthy in this situation.
`For a decade, virtually—I think it
`has been 10 years—I have been object-
`ing to this amendment. Now we are
`here, I thought it was out, and all of a
`sudden it is slipped in by a second vote
`in the House, and we are told we just
`can’t make an amendment to the bill.
`Why? The Senate set up the legislation
`to be brought forward, and we can offer
`amendments and people can vote for
`them or not.
`This matter has gotten a lot of atten-
`tion. The Wall Street Journal and the
`New York Times both wrote about it in
`editorials today. This is what the New
`York Times said today about it:
`But critics who have labeled the provision
`‘‘The Dog Ate My Homework Act’’ say it is
`really a special fix for one drug manufac-
`turer, the Medicines Company, and its pow-
`erful law firm, WilmerHale. The company
`and its law firm, with hundreds of millions of
`dollars in drug sales at stake, lobbied Con-
`gress heavily for several years to get the pat-
`ent laws changed.
`That is what the Wall Street Journal
`said in their editorial. The Wall Street
`Journal understands business reality
`and litigation reality. They are a critic
`
`of the legal system at times and a sup-
`porter at times. I think they take a
`principled position in this instance.
`The Wall Street Journal editorial stat-
`ed:
`We take no pleasure in seeing the Medicine
`Company and WilmerHale suffer for their
`mistakes, but they are run by highly paid
`professionals who know the rules and know
`that consistency of enforcement is critical
`to their businesses. Asking Congress to
`break the rules as a special favor corrupts
`the law.
`I think that is exactly right. It is ex-
`actly right. Businesses, when they are
`sued by somebody, use the statute of
`limitations every day. This law firm
`makes hundreds of millions of dollars
`in income a year. Their partners aver-
`age over $1 million a year, according to
`the New York Times. That is pretty
`good. They ought to be able to pay a
`decent malpractice
`insurance pre-
`mium. The New York Times said
`WilmerHale reported revenues of $962
`million in 2010, with a profit of $1.33
`million per partner.
`Average people have to suffer when
`they miss the statute of limitations.
`Poor people suffer when they miss the
`statute of limitations. But we are un-
`dertaking, at great expense to the tax-
`payers, to move a special interest piece
`of legislation that I don’t believe can
`be justified as a matter of principle. I
`agree with the Wall Street Journal
`that the adoption of it corrupts the
`system. We ought not be a part of that.
`I love the American legal system. It
`is a great system, I know. I have seen
`judges time and time again enter rul-
`ings based on law and fact even if they
`didn’t like it. That is the genius and
`reliability and integrity of the Amer-
`ican legal system. I do not believe we
`can justify, while this matter is still in
`litigation, passing a special act to give
`a wealthy law firm, an insurance com-
`pany, and a health care company spe-
`cial relief. I just don’t believe we
`should do that. I oppose it, and I hope
`my colleagues will join us.
`I think we have a real chance to turn
`this back. Our Congress and our Senate
`will be better for it; we really will. The
`Citizens Against Government Waste
`have taken an interest in this matter
`for some time. They said:
`Congress has no right to rescue a company
`from its own mistakes.
`Companies have a right to assert the
`law. Companies have a right to assert
`the law against individuals. But when
`the time comes for the hammer to fall
`on them for their mistake, they want
`Congress to pass a special relief bill. I
`don’t think it is the right thing to do.
`Mr. President, let’s boil it down to
`several things. First, if the company is
`right and the law firm is right that
`they did not miss the statute of limita-
`tions, I am confident the court of ap-
`peals will rule in their favor, and it
`will not be necessary for this Senate to
`act. If they do not prevail in the court
`of appeals and don’t win their argu-
`ment, then there is a provision for pri-
`vate relief in the Congress, and they
`
`ought to pursue that. There are special
`procedures. The litigation will be over,
`and they can bring that action at that
`time.
`That is the basic position we ought
`to be in. A bill that comes out of the
`Judiciary Committee ought to be sen-
`sitive to the legal system, to the im-
`portance of ensuring that the poor are
`treated as well as the rich. The oath
`judges take is to do equal justice to the
`poor and the rich.
`How many other people in this coun-
`try are getting special attention today
`on the floor of the Senate? How many?
`I truly believe this is not good policy.
`I have had to spend far more hours
`fighting this than I have ever wanted
`to when I decided 10 years ago that this
`was not a good way to go forward.
`Many battle this issue, and I hope and
`trust that the Members of the Senate
`who will be voting on this will allow it
`to follow the legitimate process. Let
`the litigation work its way through the
`system.
`If they do not prevail in the litiga-
`tion, let a private relief bill be sought
`and debated openly and publicly to see
`if it is justified. That would be the
`right way to do
`it—not slipping
`through this amendment and then not
`voting to remove it on the basis that
`we should not be amending a bill before
`us. We have every right to amend the
`bill, and we should amend the bill. I
`know Senator GRASSLEY, years ago,
`was on my side. I think it was just the
`two of us who took this position.
`I guess I have more than expressed
`my opinion. I thank the chairman for
`his leadership. I thank him and Sen-
`ator GRASSLEY for their great work on
`this important patent bill. I support
`that bill. I believe they have moved it
`forward in a fair way.
`The chairman did not put this lan-
`guage into the bill; it was put in over
`in the House. I know he would like to
`see the bill go forward without amend-
`ments. I urge him to think it through
`and see if he cannot be willing to sup-
`port this amendment. I am confident it
`will not block final passage of the leg-
`islation.
`I yield the floor.
`The PRESIDING OFFICER. The Sen-
`ator from Vermont.
`Mr. LEAHY. Mr. President, I will
`speak later about the comments made
`by the distinguished Senator from Ala-
`bama. He has been very helpful in get-
`ting this patent bill through. He is cor-
`rect that this amendment he speaks to
`is one added in the other body, not by
`us. We purposely didn’t have it in our
`bill. I know Senator GRASSLEY will fol-
`low my remarks.
`There is no question in my mind that
`if the amendment of the Senator from
`Alabama were accepted, it in effect
`will kill the bill. Irrespective of the
`merits, it can come up on another piece
`of legislation or as freestanding legis-
`lation. That is fine. But on this bill,
`after 6 years of effort to get this far,
`this bill would die because the other
`body will not take it up again.
`
`VerDate Mar 15 2010 03:30 Sep 09, 2011 Jkt 099060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.013 S08SEPT1
`
`smartinez on DSK6TPTVN1PROD with SENATE
`
`Page 2 of 42
`
`

`
`S5404
`
`CONGRESSIONAL RECORD — SENATE
`
`September 8, 2011
`
`HURRICANE IRENE
`Mr. LEAHY. Mr. President, I will use
`my time to note some of the things
`happening in my own very special
`State of Vermont, the State in which I
`was born.
`As Vermonters come together and
`continue to grapple with the aftermath
`of storm damage from Irene, I wish to
`focus today on the agriculture disaster
`that has hit us in Vermont and report
`to the Senate and our fellow citizens
`across the Nation about how the raging
`floodwaters wreaked havoc on our
`farming lands and infrastructure in
`Vermont.
`It was 12 days ago now that this enor-
`mous, slow-moving storm hit Vermont
`and turned our calm, scenic brooks and
`creeks into raging gushers. In addition
`to our roads and historic covered
`bridges that were destroyed or carried
`away, we had barns, farmhouses, crops,
`parts of fields, and livestock washed
`away in the rising floodwaters. I recall
`the comments of one farmer who
`watched his herd of cows wash down
`the river, knowing they were going to
`die in the floodwaters.
`Now the cameras have begun to turn
`away, but the cleanup and urgent re-
`pairs are underway. For major parts of
`Vermont’s economy, the worst effects
`of this storm are yet to come. For our
`dairy farmers, who are the bedrock of
`our economy and keystones of our
`communities, the toll of this disaster
`has been heavy and the crises has
`lasted longer as they have struggled to
`take care of their animals while the
`floodwaters recede.
`This
`is a photograph of East
`Pittsford, VT, taken by Lars Gange
`just over a week ago. The water we see
`is never there. It is there now. Look at
`this farm’s fields, they are destroyed.
`Look at homes damaged and think
`what that water has done.
`As I went around the state with our
`Governor and Vermont National Guard
`General Dubie the first couple of days
`after the storm hit, we went to these
`places by helicopter and I cannot tell
`you how much it tore at my heart to
`see the state, the birthplace to me, my
`parents, and grandparents. To see
`roads torn up, bridges that were there
`when my parents were children, washed
`away. Historic covered bridges, mills,
`barns, businesses just gone and what it
`has done to our farmers, it is hard, I
`cannot overstate it.
`Our farmers have barns that are com-
`pletely gone, leaving no shelter for ani-
`mals. They are left struggling to get
`water for their animals, to rebuild
`fencing, to clean up debris from flooded
`fields and barns, and then to get milk
`trucks to the dairy farms. Remember,
`these cows have to be milked every sin-
`gle day. We also have farmers who do
`not have any feed or hay for their ani-
`mals because it all washed away. As
`one farmer told me, the cows need to
`be milked two or three times every
`day, come hell or high water. This
`farmer thought he had been hit with
`both, hell and high water.
`
`While reports are still coming in
`from the farms that were affected, the
`list of damages and the need for crit-
`ical supplies, such as feed, generators,
`fuel, and temporary fencing is on the
`rise. As we survey the farm fields and
`communities, we know it will be dif-
`ficult to calculate the economic im-
`pacts of this violent storm on our agri-
`culture industry in Vermont.
`Many of our farmers were caught by
`surprise as the unprecedented, rapidly
`rising
`floodwaters
`inundated their
`crops, and many have had to deal with
`the deeply emotional experience of los-
`ing animals to the fast-moving flood-
`waters. We have farms where whole
`fields were washed away and their fer-
`tile topsoil sent rushing down river.
`The timing could not have been worse.
`Corn, which is a crucial winter feed for
`dairy cows, was just ready for harvest,
`but now our best corn is in the river
`bottoms and is ruined. Other farms had
`just prepared their ground to sow win-
`ter cover crops and winter greens; they
`lost significant amounts of topsoil.
`River banks gave way, and we saw
`wide field buffers disappear overnight,
`leaving the crops literally hanging on
`ledges above
`rivers, as at
`the
`Kingsbury farm in Warren, VT. Vege-
`table farming is Vermont’s fastest
`growing agricultural sector, and, of
`course, this is harvest season. Our
`farmers were not able to pick these
`crops, this storm picked many fields
`clean.
`Many Vermonters have highly pro-
`ductive gardens that they have put up
`for their families to get through the
`winter by canning and freezing. Those
`too have been washed away or are con-
`sidered dangerous for human consump-
`tion because of the contaminated
`floodwaters. Vermont farmers have a
`challenging and precarious
`future
`ahead of them as they look to rebuild
`and plan for next year’s crops, knowing
`that in our State it can be snowing in
`11⁄2 or 2 months.
`I have been heartened, however, by
`the many stories I have heard from
`communities where people are coming
`together to help one another. For in-
`stance, at the Intervale Community
`Farm on the Winooski River, volun-
`teers came out to harvest the remain-
`ing dry fields before the produce was
`hit by still rising floodwaters.
`When the rumors spread that Beth
`and Bob Kennett at Liberty Hill Farm
`in Rochester had no power and needed
`help milking—well, people just started
`showing up. By foot, on bike, all ready
`to lend a hand to help milk the cows.
`Fortunately for them and for the poor
`cows, the Vermont Department of Ag-
`riculture had managed to help get
`them fuel and the Kennetts were milk-
`ing again, so asked the volunteer farm
`hands to go down the road, help some-
`body else and they did.
`Coping with damage and destruction
`on this scale is beyond the means and
`capability of a small State such as
`ours, and Federal help with the re-
`building effort will be essential to
`
`Vermont, as it will be to other States
`coping with the same disaster. I worry
`the support they need to rebuild may
`not be there, as it has been in past dis-
`asters, when we have rebuilt after hur-
`ricanes, floods, fires and earthquakes
`to get Americans back in their homes,
`something Vermonters have supported
`even though in these past disasters
`Vermont was not touched.
`So I look forward to working with
`the Appropriations Committee and
`with all Senators to ensure that
`FEMA, USDA and all our Federal agen-
`cies have the resources they need to
`help all our citizens at this time of dis-
`aster, in Vermont and in all our states.
`Unfortunately, programs such as the
`Emergency Conservation Program and
`the Emergency Watershed Protect Pro-
`gram have been oversubscribed this
`year, and USDA has only limited funds
`remaining. We also face the grim fact
`that few of our farms had bought crop
`insurance and so may not be covered
`by USDA’s current SURE Disaster Pro-
`gram.
`But those are the things I am work-
`ing on to find ways to help our farmers
`and to move forward to help in the
`commitment to our fellow Americans.
`For a decade, we have spent billions
`every single week on wars and projects
`in far-away lands. This is a time to
`start paying more attention to our
`needs here at home and to the urgent
`needs of our fellow citizens.
`I see my friend from Iowa on the
`floor, and I yield the floor.
`The PRESIDING OFFICER. The sen-
`ior Senator from Iowa.
`AMENDMENT NO. 600
`Mr. GRASSLEY. Mr. President, I rise
`to rebut the points Senator SESSIONS
`made, and I do acknowledge, as he said
`on the floor, that 2 or more years ago
`I was on the same page he is on this
`issue. What has intervened, in the
`meantime, that causes me to differ
`from the position Senator SESSIONS is
`taking? It is a district court case giv-
`ing justice to a company—as one cli-
`ent—that was denied that sort of jus-
`tice because bureaucrats were acting in
`an arbitrary and capricious way.
`Senator SESSIONS makes the point
`you get equal justice under the law
`from the judicial branch of government
`and that Congress should not try to
`override that sort of situation. Con-
`gress isn’t overriding anything with
`the language in the House bill that he
`wants to strike because that interest
`was satisfied by a judge’s decision; say-
`ing that a particular entity was denied
`equal justice under the law because a
`bureaucrat, making a decision on just
`exactly what counts as 60 days, was
`acting in an arbitrary and capricious
`way. So this language in the House bill
`has nothing to do with helping a spe-
`cial interest. That special interest was
`satisfied by a judge who said an entity
`was denied equal justice under the law
`because a bureaucrat was acting in an
`arbitrary and capricious manner.
`This amendment is not about a spe-
`cial interest. This amendment is about
`
`VerDate Mar 15 2010 23:39 Sep 08, 2011 Jkt 099060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G08SE6.013 S08SEPT1
`
`smartinez on DSK6TPTVN1PROD with SENATE
`
`Page 3 of 42
`
`

`
`September 8, 2011
`
`CONGRESSIONAL RECORD — SENATE
`
`S5405
`
`uniformity of law throughout the coun-
`try because it is wrong—as the judge
`says—for a bureaucracy to have one
`sort of definition of when 60 days be-
`gins—whether
`it
`is after business
`hours, if something goes out, or, if
`something comes in, it includes the
`day it comes in. So we are talking
`about how we count 60 days, and it is
`about making sure there is a uniform
`standard for that based upon law
`passed by Congress and not upon one
`judge’s decision that applies to one spe-
`cific case.
`I would say, since this case has been
`decided, there are at least three other
`entities that have made application to
`the Patent Office to make sure they
`would get equal justice under the law
`in the same way the entity that got
`help through the initial decision of the
`judge. So this is not about special re-
`lief for one company. This is about
`what is a business day and having a
`uniform definition in the law of the
`United States of what a business day
`is, not based upon one district court
`decision that may not be applied uni-
`formly around our Nation.
`So it is about uniformity and not
`about some bailout, as Senator SES-
`SIONS says. It is not about some fero-
`cious lobbying effort, as Senator SES-
`SIONS has said. It is not just because
`one person was 1 hour late or 1 day
`late, because how do you know whether
`they are 1 hour late or 1 day late if
`there is a different definition under one
`circumstance of when 60 days starts
`and another definition under other cir-
`cumstances of when a 60-day period
`tolls?
`Also, I would suggest to Senator SES-
`SIONS that this is not Congress inter-
`fering in a court case that is under ap-
`peal because the government lost this
`case and the government is not appeal-
`ing. Now, there might be some other
`entity appealing for their own interests
`to take advantage of something that is
`very unique to them.
`But just in case we have short memo-
`ries, I would remind my colleagues
`that Congress does sometimes interject
`itself into the appeal process, and I
`would suggest one time we did that
`very recently, maybe 6 years ago—and
`that may not be very recent, but it is
`not as though we never do it—and that
`was the Protection of Lawful Com-
`merce Act of 2005, when Congress inter-
`jected itself into an issue to protect
`gun manufacturers from pending law-
`suits. It happens that 81 Senators sup-
`ported that particular effort to inter-
`ject ourselves into a lawsuit.
`So, Mr. President, in a more formal
`way, I want to repeat some of what I
`said this past summer when I came to
`the Senate floor and suggested to the
`House of Representatives that I would
`appreciate very much if they would put
`into the statutes of the United States a
`uniform definition of a business day
`and not leave it up to a court to maybe
`set that standard so that it might not
`be applied uniformly and, secondly, to
`make sure it was done in a way that
`
`was treating everybody the same, so
`everybody gets equal justice under the
`law, they know what the law is, and
`they don’t have to rely upon maybe
`some court decision in one part of the
`country that maybe they can argue in
`another part of the country, and also
`to tell bureaucrats, as the judge said,
`that you can’t act in an arbitrary and
`capricious way. But bureaucrats might
`act in an arbitrary and capricious way,
`in a way unknown to them, if we don’t
`have a uniform definition of what a
`business day is.
`So I oppose the effort to strike sec-
`tion 37 from the patent reform bill for
`the reasons I have just given, but also
`for the reasons that were already ex-
`pounded by the chairman of this com-
`mittee that at this late date, after 6
`years of trying to get a patent reform
`bill done—and we haven’t had a patent
`reform bill for over a decade, and it is
`badly needed—we shouldn’t jeopardize
`the possible passage of this bill to the
`President of the United States for his
`signature by sending it back to the
`other body and perhaps putting it in
`jeopardy. But, most important, I think
`we ought to have a clear signal of what
`is a business day, a definition of it, and
`this legislation and section 37 makes
`that very clear.
`This past June, I addressed this issue
`in a floor statement, and I want to
`quote from that because I wanted my
`colleagues to understand why I hoped
`the House-passed bill would contain
`section 37 that was not in our Senate
`bill but that was passed out of the
`House Judiciary Committee unani-
`mously. Speaking as ranking member
`of the Senate Judiciary Committee
`now and back in June when I spoke, I
`wanted the House Judiciary Committee
`to know that several Republican and
`Democratic Senators had asked me to
`support this provision as well.
`Section 37 resulted from a recent
`Federal court case that had as its gen-
`esis the difficulty the FDA—the Food
`and Drug Administration—and the Pat-
`ent Office face when deciding how to
`calculate Hatch-Waxman deadlines.
`The Hatch-Waxman law of the 1980s
`was a compromise between drug patent
`holders and the generic manufacturers.
`Under the Waxman-Hatch law, once a
`patent holder obtains market approval,
`the patent holder has 60 days to re-
`quest the Patent Office to restore the
`patent terms—time lost because of the
`FDA’s long deliberating process eating
`up valuable patent rights.
`The citation to the case I am refer-
`ring to is in 731 Federal Supplement
`2nd, 470. The court found—and I want
`to quote more extensively than I did
`back in June. This is what the judge
`said about bureaucrats acting in an ar-
`bitrary and capricious way and when
`does the 60 days start.
`The Food and Drug Administration treats
`submissions to the FDA received after its
`normal business hours differently than it
`treats communications from the agency
`after normal business hours.
`Continuing to quote from the deci-
`sion:
`
`The government does not deny that when
`notice of FDA approval is sent after normal
`business hours, the combination of the Pat-
`ent and Trademark Office’s calendar day in-
`terpretation and its new counting method ef-
`fectively deprives applicants of a portion of
`the 60-day filing period that Congress ex-
`pressly granted them . . . Under PTO’s inter-
`pretation, the date stamped on the FDA ap-
`proval letter starts the 60-day period for fil-
`ing an application, even i