21
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`IBG LLC ET AL. - EXHIBIT 1008 (Part 2 of 2)
`
`

`
`September 8, 2011
`
`DUPONT.
`Wilmington. DE. July 6‘. 2011.
`Hon. PATRICK J. LEA!-IY.
`Cliairmon. Committee on the Judiciary. Wash-
`ington, DC.
`Hon. CHARLES E. GRASSLEY.
`Ranking Member, Committee on the Judiciary.
`Washington. DC.
`DEAR CHAIRMAN LEAI-IY AND RANKING MEM-
`BER GRASSLEY: As a world leader in science
`and innovation. including agriculture and in-
`dustrial biotechnology. chemistry, biology.
`materials science and manufacturing. Du-
`Pont recognizes the nation’s patent system
`is a cornerstone in fostering innovation and
`creating jobs. Patents continue to be one of
`the engines for innovation and a process for
`discovery that leads to rich. new offerings
`for our customers and gives our company the
`edge to continue transforming markets and
`society. Our stake in the patent system is
`significant—in 2010. DuPont filed over 2.000
`patent applications and was awarded almost
`Tilt} U.S. patents. Given the importance of its
`patents. DuPont has been a strong supporter
`of efforts to implement patent reform legis-
`lation that will improve patent quality and
`give the U.S. Patent and Trademark Office
`the resources it needs to examine and grant
`patents in a timely manner.
`We believe that any changes to the patent
`system need to be made in a way that
`strengthens patents and supports the impor-
`tant goals of fostering innovation and cre-
`ating jobs.
`In our view.
`the Leahy—Smith
`America.
`Invents Act. HR.
`1249. achieves
`these objectives. and we urge you to consider
`adoption of this bill.
`The agreement reached in the House on
`USPTO funding will assure that the fees paid
`to the USPTO b.v inventors will not he di-
`verted and will be made available to the Of-
`fice for processing patent applications and
`other
`important
`functions of
`the Office.
`While we would have preferred the Senate‘s
`approach in S. 23 to prevent diversion of
`USPTO funds, we believe that acceptance of
`the House bill provides an effective and the
`most
`immediate path forward to address
`problems of the patent office. HR. 1249, like
`S. 23. is an excellent bill. These bills are the
`product of many years of skillful and dif-
`ficult legislative work in both the House and
`the Senate. We believe the time has now
`come for the Senate to take the final legisla-
`tive act required for enactment of these his-
`toric reforms.
`We look forward to patent reform becom-
`ing a reality in the 112th Congress, due in
`significant measure to your leadership, and
`we thank you for your efforts in this critical
`policy area.
`Very truly yours.
`P. MICHAEL WALKER.
`Vice President, Assist-
`ant General Counsel
`and Chief
`Intellec-
`tual Property Coim-
`sel.
`
`J ENE 29. 2011.
`
`Hon. HARRY REID.
`Majority Leader, U.S. Senate,
`Washington, DC.
`Hon. MITCH MCCONNELL.
`Republican Leader. U.S. Senate,
`Wosliingioii, DC.
`DEAR LEADERS REID AND MCCONNELL: We
`are writing to encourage you to bring H.R.
`1249,
`the "Leahy-Smith America Invents
`Act." to the Senate floor at your earliest
`possible convenience and send the bill to the
`Presidents desk to be signed into law. HR.
`1249 closely mirrors the Senate bill
`that
`passed earlier this year by an overwhelming
`95-5 vote.
`Patent reform is essential legislation: en-
`actment will spur innovation creating jobs
`
`CONGRESSIONAL RECORD — SENATE
`and ensure that the Patent and 'I‘rademark
`Office (PTO) has the tools necessary to main-
`tain our patent system as the best in the
`world. We strongly support the improved re-
`examination procedures in H.R. 1249, which
`will allow the experts at PTO to review low-
`quality business-method patents against the
`best prior art. Equally important.
`the bill
`provides the PTO with increased and predict-
`able funding. This certainty is absolutely
`critical if the PTO is to properly allocate re-
`sources and hire and retain the expertise
`necessary to benefit the entire user-ccmmu-
`nity.
`This bill has been nearly a decade in the
`making and is supported by a vast cross-sec-
`tion of all types of inventors and businesses.
`It is time to send patent reform to the Presi-
`dent fcr signature, and we strongly encour-
`age the Senate to take up and pass H.R. 1249
`without delay.
`Sincerely.
`American Bankers Association, Amer-
`ican Council of Life Insurers. American
`Financial Services Association. Amer-
`ican Insurance Association. The Clear-
`ing House Association, Consumer
`Bankers Association, Credit Union Na-
`tional Association. The Financial Serv-
`ices Roundtable. The Independent Com-
`munity Bankers of America. Mortgage
`Bankers Association. National Associa-
`tion cf Mutual Insurance Companies.
`Property Casualty Insurers Association
`of America. Securities Industry and Fi-
`nancial Markets Association.
`I ask
`Mr. LEAHY. Mr. President,
`unanimous consent that I be allowed to
`reserve the remainder of my time. and
`I suggest the absence of a quorum.
`The
`PRESIDING OFFICER. The
`clerk will call the roll.
`The assistant bill clerk proceeded to
`call the roll.
`I ask
`Mr. COBURN. Mr. President.
`unanimous consent that the order for
`the quorum call be rescinded.
`The PRESIDING OFFICER. Without
`objection. it is so ordered.
`Mr. COBURN. Mr. President. I wish
`to respond to my chairman's com-
`ments. First of all. what we have pro-
`posed came out of the Judiciary Com-
`mittee in the House 32 to 3. In other
`words. only three people on the Judici-
`ary Committee in the House objected
`to this.
`The other point I wish to make is the
`letter from Chairman ROGERS does not
`bind the next Appropriations Com-
`mittee chairman.
`I
`think everybody
`would agree with that. It only binds
`him and it only binds him as long as he
`honors his commitment.
`I have no
`doubt he will honor his commitment as
`long as he is chairman.
`The third point
`I wish to make is
`what
`the House has set up doesn't
`make sure the funds go to the PTO, it
`just means they can‘t go somewhere
`else. That is what they have set up.
`They do not have to allow all the funds
`collected to go to the PTO. So they can
`reserve $200 million or $300 million a
`year and put it over there in a. reserve
`fund and send it to the Treasury which
`will cause us to borrow less, but the
`money won’t necessarily go to the
`PTO. There is nothing that mandates
`the fees collected go to the Patent and
`Trademark Office.
`I understand my chairman. I under-
`stand his frustration with trying to get
`
`S5423
`
`this bill through. and I understand that
`he sees this as a compromise. I don‘t. I
`understand we are going to differ on
`that and agree to disagree.
`With that, I yield the floor to allow
`the chairman to speak. and I reserve
`the remainder of my time.
`Mr. LEAHY. I thank the Senator. I
`reserve the remainder of my time and
`suggest the absence of a. quorum.
`The
`PRESIDING OFFICER. The
`clerk will call the roll.
`The assistant bill clerk proceeded to
`call the roll.
`I ask
`Mr. SANDERS. Mr. President.
`unanimous consent that the order for
`the quorum call be rescinded.
`The
`PRESIDING OFFICER (Mr.
`LEAHY). Without objection. it is so or-
`do-red.
`
`rpooomo IN VERMONT
`Mr. SANDERS. Mr. President. I wish
`to pick up on a point the senior Sen-
`ator from Vermont made earlier today.
`Both he and I have had the opportunity
`to travel
`throughout
`the State of
`Vermont to visit many of our towns
`which have been devastated by one of
`the worst natural disasters
`in our
`State’s history.
`We have seen in the southern part of
`the State—in Wilmington. for exam-
`plt-—the entire business district
`se-
`verely damaged. I have seen in central
`Vermont 3. mobile home park almost
`completely wiped out. with people who
`are in their eighties and are now hav-
`ing to look to find new places in which
`to live. I have seen a public housing
`project for seniors in Brattleboro se-
`verely damaged. A lot of seniors there
`are now having to find new places to
`live. We have seen the State office
`complex
`in Waterbury—the
`largest
`State office building in the State.
`housing 1.700 Vermont workers.
`the
`nerve center of the State—devast;ated.
`Nobody is at work there today.
`We have seen hundreds of bridges and
`roads destroyed. and right now. as we
`speak.
`there are rains coming in the
`southern part of
`the State, causing
`more flooding. more damage. We have
`seen a wonderful gentleman from Rut-
`land lose his life because he was doing
`his job to make sure the people of that
`area were protected. So we have seen
`damage the likes of which we have
`never seen in our lifetime.
`What
`I would say—and I know I
`speak for
`the senior Senator
`from
`Vermont as well—is that our country is
`the United States of America—the
`United States of America. What that
`means is we are a nation such that
`when disaster strikes in Louisiana or
`Mississippi
`in terms
`of Hurricane
`Katrina—I know the Presiding Officer
`remembers the outpouring of support
`from Vermont for the people in that re-
`gion. All of our hearts went out to the
`people in Joplin, MO, when that com-
`munity suffered an incredible tornado
`that took 150 or so lives and devastated
`that city. What America is about and
`what a nation is about is that when
`disaster hits one part of the country.
`we unite as a nation to give support to
`
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`
`S5424
`
`CONGRESSIONAL RECORD — SENATE
`
`The
`
`those busi-
`help those communities,
`nesses,
`those homeowners who have
`been hurt get back on their feet.
`from
`I know the senior Senator
`Vermont has made this point many
`times: Right now we are spending bil-
`lions of dollars rebuilding communities
`in Afghanistan and Iraq. Well, I think
`I speak for the vast majority of the
`people in this country and in my State
`of Vermont that if we can spend bil-
`lions rebuilding communities in Iraq
`and Afghanistan. we surely can rebuild
`communities in Vermont, New Jersey.
`North Carolina, and other parts of the
`United States of America that have
`been devastated by Hurricane Irene.
`I think as a body. as a Congress. the
`House and Senate have to work as ex-
`peditiously as we can to come up with
`the funds to help rebuild all of
`the
`communities that have been so se-
`verely damaged by this terrible flood. I
`look forward to working with my col-
`leagues to make that happen.
`With that. I yield the floor and note
`the absence of a quorum.
`The
`PRESIDING OFFICER.
`clerk will call the roll.
`The assistant bill clerk proceeded to
`call the roll.
`I ask
`Mr. LEAHY. Mr. President,
`unanimous consent that the order for
`the quorum call be rescinded.
`The
`PRESIDING OFFICER (Mr.
`SANDERS). Without objection, it is so
`ordered.
`Mr. LEAHY. Mr. President. when the
`America Invents Act was first consid-
`ered by the Senate last March. I spoke
`about
`the contributions Vermonters
`have made to innovation in America
`since the founding of our Nation. The
`distinguished Presiding Officer and I
`know about what Vermont has done. I
`wish to remind everybody that from
`the first patent ever issued by our gov-
`ernment to cutting-edge research and
`inventions produced today Vermonters
`have been at the forefront of innova-
`tion since the Nation‘s birth.
`Many may think of our Green Moun-
`tain State as being an unlikely hotbed
`of innovation, but we have actually
`over the last few years issued the most
`patents per capita of any State in the
`country—actually more patents than a
`lot of States that are larger than we
`are. It is a small State, to be sure, but
`it
`is one that is bursting with cre-
`ativity.
`the inventive
`The rich history of
`spirit of Vermont is long and diverse.
`Vermonters throughout have pursued
`innovations from the time of the Indus-
`trial Revolution to the computer age.
`Vermont
`inventors
`discovered
`new
`ways to weigh large objects as well as
`ways to enjoy the outdoors. They have
`perfected new ways to traverse rivers
`and more
`environmentally friendly
`ways to live in our homes. Over the
`years, as America has grown and pros-
`pered. Vermont’s innovative and cre-
`ative spirit has made the lives of all
`Americans better and possibly made
`them more productive. The patent sys-
`tem in this country has been the cata-
`
`lyst that spurred these inventors to
`take the risks necessary to bring these
`ideas to the marketplace.
`The story of innovation in Vermont
`is truly the American story. It has
`been driven by independent inventors
`and small businesses taking chances on
`new ideas. A strong patent system al-
`lowed these ideas
`to flourish and
`brought our country unprecedented
`economic growth. These same kinds of
`inventors exist
`in Vermont today. as
`they do throughout our great country.
`But
`these inventors need to be as-
`sured that
`the patent
`system that
`served those who came before them so
`well can do the same today. The Amer-
`ica Invents Act will provide that assur-
`ance for years to come.
`from
`My distinguished colleague
`Vermont and I have both spoken sev-
`eral times on the Senate floor since the
`Senate came back in session about the
`devastation in Vermont. I cannot help
`but think of the devastation that Irene
`has caused in so many of our commu-
`nities at home. Just as Senator SAND-
`nns and Congressman WELCI-l and Gov-
`ernor Shumlin, I have seen the damage
`and heartbreak firsthand. But
`I also
`saw the fruits of innovation that will
`help bring recovery to communities
`throughout Vermont:
`the heavy ma-
`chinery that helped to clear debris and
`that will build our
`roads and our
`bridges and our homes; the helicopters
`that brought food and water to strand-
`ed residents: and the bottles that al-
`lowed safe drinking water
`to reach
`them.
`The American patent system has
`helped to develop and refine countless
`technologies that drive our country in
`times of prosperity but also in times of
`tragedy. It is critical we ensure that
`this system remains the best in the
`world.
`Vermont and the rest of the country
`deserve the world‘s best patent system.
`The innovators of the past had exactly
`that. but we can ensure that
`the
`innovators who are among us today
`and those who will come in succeeding
`generations will have it as well by
`passing the America Invents Act.
`I am proud of the inventive contribu-
`tions that Vermonters have made since
`the founding of this country. I hope to
`honor their legacy. I hope to inspire
`the next generation by securing the
`passage of this legislation.
`I have been here for a number of
`years, but this is one of those historic
`moments. The patent system is one of
`the few things enshrined in our Con-
`stitution, but it is also something that
`has not been updated for over half a
`century. We can do that. We can do
`that today with our vote. We can com-
`plete this bill. We can send it to the
`President. The President has assured
`me he will sign it. We will make Amer-
`ica stronger. We will create jobs. We
`will have a better system. And it will
`not cost American taxpayers anything.
`That is something we ought to do.
`Mr. President,
`the America Invents
`Act
`is supported by dozens of busi-
`
`23
`
`September 8, 2011
`nesses and organizations,
`large and
`small, active in all 50 States.
`The America Invents Act is the prod-
`uct of more than 6 years of debate and
`compromise. The stakeholders have
`crossed the spectrum—from small busi-
`nesses to high-tech companies: finan-
`cial institutions to labor organizations;
`life sciences to bar associations.
`More than 180 companies. associa-
`tions. and organizations have endorsed
`the Leahy-Smith America Invents Act.
`I ask unanimous consent that a list of
`these supporters be printed in the
`RECORD.
`There being no objection, the mate-
`rial was ordered to be printed in the
`RECORD. as follows:
`LIST OF SUPPORTERS OF THE AMERICA INVENTS
`ACT
`3M: Abbott Adobe Systems Incorporated:
`Advanced Micro Devices: Air Liquide: Air
`Products; American Bar Association: Amer-
`ican Bankers Association; American Council
`of Life Insurers: American Council on Edu-
`cation; American Financial Services Asso-
`ciation: American Institute of Certified Pub-
`lic Accountants; American Insurance Asso-
`ciation; American Intellectual Property Law
`Association: American Trucking Associa-
`tion: Apple.
`Inc.: Applied Materials.
`Inc.:
`Aruba N etworks_. Inc.: Assoc. for Competitive
`Technology: Assoc. of American Medical Col-
`leses.
`Association of American Universities: As-
`sociation of Public and Land-grant Univer-
`sities: Association of University Technology
`Managers: Astrazeneca: Atheros Commu-
`nications. Inc.: Autodesk. Inc.: Avaya Inc.:
`Avid Technology.
`Inc.: Bank of America:
`Baxter Healthcare Corporation: Beckman
`Coulter: Biotechnology Industry Organiza-
`tion: Borealis Ventures: Boston Scientific:
`BP: Bridgestcne American Holdings.
`Inc.:
`Bristcl—Meyers Squibb: Business Software
`Alliance: CA, Inc.: Cadence Design Systems.
`Inc.: California Healthcare Institute.
`Capital One: Cardinal Intellectual Prop-
`erty; Cargill. Inc.: Caterpillar: Charter Com-
`munications; CheckFree: Cisco Systems
`Citigroup; The Clearing House Association:
`Coalition for Patent and 'I'rademark Infor-
`mation Distributlon: Collexis Holdings. Inc.:
`Computer & Communications Ind. Assoo.:
`Computing Technology Industry Associa-
`tion: Consumer Bankers Association: Cor-
`ning; Council on Government Relations:
`Courion; Credit Union National Association:
`Cummins,
`Ino.; Dell; The Dow Chemical
`Company.
`DuPont: Eastman Chemical Company;
`Eastman Kodak: eBay Inc.: Electronics for
`Imaging; Eli Lilly and Company: EMC Cor-
`poration: EnerNCC: ExxonMobil: Facebook:
`Fidelity Investments; Financial Planning
`Association: F‘otoTime: General Electric:
`General Mills; Genzyme: GlaxoSmithKline:
`Google
`Inc.: Hampton Roads Technology
`Council: Henkel Corporation.
`Hoffman—LaRoche: HSBC North America:
`Huntington National Bank: IAC:
`IBM; Illi-
`nois Technology Association:
`lllinois Tool
`Works: Independent Community Bankers of
`America:
`Independent
`Inventors:
`Infineon
`Technologies; Information Technology Coun-
`cil: Integrated DNA Technologies; Intel: In-
`tellectual Property Owners Association;
`International Trademark Association: Inter-
`national Intellectual Property Institute: In-
`tuit, Inc.: Iron Mountain: Johnson 8; John-
`scn;Ka1ido.
`Lexmark International. Inc. Logitech, Inc.:
`Massachusetts Technology Leadership Coun-
`cil: Medtronic: Merck & Co.
`Inc.: Micron
`Technology.
`Inc.: Microsoft; Millennium
`
`23
`
`

`
`CONGRESSIONAL RECORD — SENATE
`September 8, 2011
`Pharmaceuticals: Millikan and Company:
`Molecular; Monstencom: Motorola: Mort-
`gage Bankers Association: National Associa-
`tion of Federal Credit Unions: National Asso-
`ciation of Manufacturers: National Assoc. of
`Mutual Insurance Cos: National Association
`of Realtors: National Semiconductor Cor-
`poration: National Retail Federation: Na-
`tional Treasury Employees Union: Native
`American IP Enterprise Council; Net Coali-
`tion; Netflix. Inc.: Network Appliance, Inc.:
`Newegg Inc.: News Corporation: Northrop
`Grumman: Novartis: Numenta. Inc.: Nvidia
`OpenAir. Inc.: Oracle: Overstock.com: Part-
`nership for New York City: Patent Cafe.com.
`Inc.: Pepsico. Inc.: Pfizer: PhRMA: Procter &
`Gamble Company: Property Casualty Insur-
`ers Association of America: Red Hat.
`Reed Elsevier Inc.: RIM: Salesi'orce.com.
`Inc.: SanDisk Corporation: San Jose Silicon
`Valley Chamber of Commerce; SAP America.
`Inc.: SAS Institute: Seagate Technology.
`LLC: Sebit, LLC; Securities Industry & Fi-
`nancial Markets Association:
`Skillsoftz
`Small Business and Entrepreneurship Coun-
`cil: Software Information and Industry Asso-
`ciation: Sun Microsystems. Inc.: Symantec
`Corporation: Tax Justice Network USA:
`TECI-lQuest Pennsylvania; Teradata Corpora-
`tion: Texas Instruments: Texas Society of
`CPAs.
`The Financial Services Roundtable: Toy-
`ota Trimble Navigation Limited: The United
`Inventors Association of America: United
`Steelworkers: United Technologies: U.S.
`Chamber of Commerce: USG Corporation:
`Verisign Inc.: Verizon: Visa Inc.: Visi-Trak
`Worldwide. LLC: Vlidware.
`Inc.: Vuze. Inc.:
`Western
`Digital
`Technologies.
`Inc.:
`Weyerhaeuser: Yahoo! Inc.: Ze-gen: Zimmer:
`ZSL. Inc.
`Mr. LEAHY. I yield the floor.
`I suggest the absence of a quorum.
`The PRESIDING OFFICER (Mrs.
`McCAsKn.i.). The clerk will call
`the
`roll.
`The assistant bill clerk proceeded to
`call the roll.
`Mr. KERRY. Madam President. I ask
`unanimous consent that the order for
`the quorum call be rescinded.
`The PRESIDING OFFICER. Without
`objection. it is so ordered.
`re-
`Mr. KERRY. Madam President.
`garding the parliamentary situation,
`how much time remains for Senator
`C.-INTWELL?
`The PRESIDING OFFICER. Thirteen
`minutes remains.
`Mr. KERRY. It is my understanding
`that Senator CANTWELL wants to pre-
`serve a component of that. so I would,
`on behalf of Senator CANTWELL. yield
`myself 5 minutes at this time.
`The PRESIDING OFFICER. Without
`objection. it is so ordered.
`AMENDMENT NO. one
`
`The only thing section 37 does—the
`only thing—-is it codifies what a Fed-
`eral district court has already said and
`implements what the U.S. Patent and
`Trademark Office
`is already doing.
`There is no breaking of new ground
`here. This is codifying a Federal dis-
`trict court, codifying what the Patent
`Office has done. and. in fact. codifying
`common sense. It is putting into effect
`what is the right decision with respect
`to how we treat patents in our country.
`Section 3'? is, in fact, a very impor-
`tant clarification of a currently con-
`fusing deadline for filing patent term
`extension
`applications
`under
`the
`I-latch-Waxman Act. Frankly. this is a
`clarification, I would say to the Sen-
`ator from Alabama, that benefits ev-
`erybody in the country. In fact, this is
`a clarification which has already been
`put into effect for other types of pat-
`ents that were once upon a time treat-
`ed with the same anomaly. They rec-
`tified that. They haven’t rectified it
`with respect to this particular section
`of patent law.
`So all we are doing is conforming to
`appropriate law, conforming to the
`standards the Patent Office applies.
`and conforming for all companies in
`the country,
`for any company that
`might be affected similarly.
`If
`this
`were a bailout for a single firm or a
`pharmaceutical company, as some have
`tried to suggest it might be, why in the
`world did a
`similar provision pre-
`viously get reported out of the Senate
`Judiciary Committee by a vote of 14 to
`2? How in the world could this provi-
`sion have then passed the House of
`Representatives as it did? And why
`would many House Republicans have
`supported it as they did? The answer is
`very simple: Because it
`is the right
`thing to do under the law and under
`the common sense of how we want pat-
`ents treated in the filing process.
`The law as currently written. frank-
`ly. was being wrongly applied by the
`Patent and Trademark Office. And you
`don't have to take my word for that:
`that is what a Federal court has said
`on more than one occasion. Each time.
`the court has ruled that it was the Pat-
`ent and Trademark Office. not an indi-
`vidual firm called Wilmerllale or Medi-
`cines Compa.ny—not
`those two—that
`made a mistake.
`Let me make that very clear so the
`record is as clear as it can be. The cur-
`rent law as it is written says that “to
`obtain an extension of the term of a
`patent under this section. the owner of
`record of the patent or its agent shall
`submit an application to the Director.
`.
`.
`. Such an application may be only
`submitted within the sixty-day period
`beginning on the date the product re-
`ceived permission" under the appro-
`priate provision of law.
`Now. the FDA reasonably interprets
`this language to mean that if some-
`thing is received after the close of busi-
`ness on a given business day,
`it
`is
`deemed to be received the next busi-
`ness day. Under
`this interpretation.
`the filing by the Medicines Company
`was indisputably timely.
`
`Mr. KERRY. Madam President, I ap-
`preciate the comments of our friend
`from Alabama, Senator SESSIONS, re-
`garding his amendment to strike sec-
`tion 37 of the patent reform bill. but I
`disagree with him on
`substantive
`terms, and I ask our colleagues to look
`carefully at
`the substance of
`this
`amendment and the importance of this
`amendment with respect to precedent
`not for one company from Massachu-
`setts or for one entity but for compa-
`nies all over the country and for the
`application of patent law as it ought to
`be applied.
`
`S5425
`
`So my colleagues should not come to
`the floor and take away from entities
`that are trying to compete and be in
`the marketplace over some techni-
`cality:
`the suggestion that because
`something was filed electronically on a
`particular given day at 5 o’clock in the
`afternoon when
`people
`had
`gone
`home—they weren’t open—that some-
`how they deem that not to have been
`appropriately filed.
`But rather than accept that common-
`sense interpretation,
`the Patent and
`Trademark Office told the Medicines
`Company it was late. They just decided
`that. They said: You are late, despite
`the fact
`that
`interpretation contra-
`dicted the same-business-day rule the
`FDA uses when interpreting the very
`same statute. So as a result, the issue
`went
`to court. and guess what. The
`court
`told the PTO it was wrong. A
`Federal
`judge found that the Patent
`Office and FDA had been applying in-
`consistent interpretations of the exact
`same statutory language in the Hatch-
`Waxman Act. The FDA uses one inter-
`pretation that has the effect of extend-
`ing its own internal deadlines. but the
`PTO insisted on using a different inter-
`pretation. The result was a “heads I
`win. tails you lose."
`The PRESIDING OFFICER. The Sen-
`ator's time has expired.
`Mr. KERRY. Madam President. I ask
`unanimous consent to speak for 1 addi-
`tional minute.
`The PRESIDING OFFICER. Without
`objection. it is so ordered.
`Mr. KERRY. For companies investing
`in innovative medicines.
`the court
`found that the PTO failed to provide
`any plausible explanation for this in-
`consistent approach. It further found
`that the PTO‘s interpretation had the
`effect of depriving applicants of a por-
`tion of their time for filing an applica-
`tion.
`the relevant
`After considering all
`factors.
`the court adopted the FDA's
`interpretation. So the court told the
`PTO that they were wrong and it was
`they. and not the Medicines Company,
`who made a mistake.
`So this is not an earmark. It isn't. as
`Senator SESSIONS contends. a single-
`company bailout. It is a codification of
`a court ruling. It is a clarification. It is
`common sense. It puts a sensible court
`decision into legislative language, and
`it is legislative language that applies
`to all companies across the country
`equally. It doesn‘t single out any par-
`ticular company but amends the patent
`law for the benefit of all applicants.
`I ask my colleagues to oppose the
`Sessions amendment on the merits.
`More importantly. we need to move
`forward with this important bill on
`which Chairman LEAHY and Senator
`GRASSLEY have worked so hard. Pass-
`ing the Sessions amendment would
`stop that. It would require a House-
`Senate conference on the bill, and it
`would at best seriously delay and at
`worst make it impossible to exact pat-
`ent reform during this Congress. So
`
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`
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`
`

`
`S5426
`
`this is, on the merits, for all compa-
`nies. This is common sense. This is cur-
`rent law. This is current practice. So I
`ask my colleagues accordingly to vote
`appropriately.
`I ask unanimous
`Madam President.
`consent that at 4 p.m. the Senate pro-
`ceed to the votes in relation to the
`amendments and passage of H.R. 1249,
`the America Invents Act, with all
`other provisions of the previous order
`remaining in effect: that the final 10
`minutes of debate be equally divided
`between the chairman and ranking
`member of the Judiciary Committee or
`their designees. with the chairman con-
`trolling the final 5 minutes; further,
`that there be 4 minutes equally divided
`between
`proponents
`and opponents
`prior to each vote.
`The PRESIDING OFFICER. Is there
`objection?
`Without objection, it is so ordered.
`Mr. KERRY. Madam President. I re-
`serve the remainder of Senator CANT-
`wELL's time.
`The PRESIDING OFFICER. The Sen-
`ator from Texas.
`Mr. CORNYN. May I inquire of the
`Chair how much time remains for me
`to speak before getting to the last
`order‘?
`The PRESIDING OFFICER. There is
`4% minutes remaining.
`TEXAS WILDFIRES
`I
`Mr. CORNYN. Madam President.
`wish to speak for about 41,9 minutes on
`the natural disasters that have been
`confronting our Nation and in par-
`ticular Texas. where the State has had
`about 3%: million acres of land burned,
`with many people now finding them-
`selves literally homeless as a result of
`fires that many of my colleagues have
`seen on TV or watched on the Internet
`but which. frankly, do not capture the
`scale of the devastation.
`Just to give you an idea of the scope
`of this natural disaster, so far, in 2011.
`more than 13,000 wildfires have been re-
`ported in the State. As I mentioned. it
`has burned an area roughly the size of
`Connecticut. Nearly 2.900 structures
`have been lost and, unfortunately,
`there has also been a loss of life in
`these fires, as well as 5,000 Texans have
`now been evacuated from their homes.
`Unfortunately. these fires have been a
`feature of life in parts of Texas for
`most of the year because we are in the
`middle of a historic drought where. be-
`cause of La Nina. the weather pattern.
`we have had an abnormally dry year,
`and. indeed. it has caused more than $5
`billion of agricultural losses alone as a
`result of that drought.
`I have not only seen some of the dev-
`astation myself before I
`left Austin,
`but I have also talked to a number of
`people on the ground who are well in-
`formed.
`Representative Tim Kleinschmidt,
`who represents the Texas district east
`of Austin in sort of the Bastrop area,
`told me that as many as 1,000 people
`have been evacuated from their homes
`in that area and have been living in
`shelters since Sunday. Water and elec-
`
`tricity are also down in many areas.
`and the wind has unfortunately swept
`the fire into other areas and now is
`only about 30 percent contained.
`I have also talked to some of our
`other local leaders, our county judges,
`such as Grimes County judge Betty
`Shiflett. who told me that while they
`have no unmet needs right now, they
`are very concerned about the threat to
`life and property and are working as
`hard as they can to contain the fires.
`I have also talked to our outstanding
`chief of the Texas Department of Emer-
`gency Management and the Director of
`the Texas Forest Service who tell me
`that as many as 2,000 Americans from
`places other than Texas have come to
`the State to help fight these fires and
`help protect property and life.
`We have had a good Federal response
`to one extent, and that is the U.S. For-
`est Service has provided planes, bull-
`dozers. and other equipment. Unfortu-
`nately, we have seen the White House
`so far not extend the disaster declara-
`tion beyond the original 52 counties ap-
`proved for FEMA assistance on May 3.
`I should say that assistance ran out on
`May 3, more than 4 months ago. Suffice
`it
`to say.
`the disaster declaration
`should be extended to cover the rest of
`the State. at
`least 200 more Texas
`counties that need Federal assistance.
`I am informed from reading the news-
`paper that President Obama reached
`out to Governor Perry yesterday to ex-
`tend his condolences. But.
`frankly,
`more than condolences, what we need
`are the resources to help fight these
`fires to deal with the disaster and to
`help get people back into their homes
`as soon as possible.
`I would just
`say in conclusion.
`Madam President,
`that
`the majority
`leader has
`raised the question of
`whether disaster relief should be paid
`for or whether it should be borrowed
`money. I come down on the side of be-
`lieving that we can't keep borrowing
`money we don't have. That is what the
`American people keep telling us. That
`is what the last election was all about.
`That is what the financial markets are
`telling us. and I believe the American
`people believe we have plenty of money
`in the Federal Government for Con-
`gress to do its job by setting priorities
`and funding those priorities.
`I believe emergency assistance to the
`people who have been hit hardest by
`these natural disasters is one of those
`priorities. We should fund it instead of
`funding wasteful spending and duplica-
`tive programs and engaging in failed
`Keynesian stimulus schemes.
`I yield the floor.
`SECTION 5
`
`CONGRESSIONAL RECORD — SENATE
`September 8, 2011
`tions of matter used in a manufac-
`turing or other commercial process.
`that would
`otherwise
`infringe
`a
`claimed invention if:
`(1)
`the person
`commercially used the subject matter
`in the United States. either in connec-
`tion with an internal commercial use
`or an actual arm’s length sale or other
`arm's length commercial transfer of a
`useful end result of such commercial
`use; and (2)
`the commercial use oc-
`curred at least one year before the ear-
`lier of either the effective filing date of
`the claimed invention or the date on
`which the claimed invention was dis-
`closed to the public in a manner that
`qualified as an exception from prior
`art.
`As the distinguished chairman of the
`Committee on the Judiciary knows,
`such prior user rights. if properly craft-
`ed and understood, can he of great ben-
`efit to keeping high paying jobs in this
`country by giving U.S. companies a re-
`alistic option of keeping internally
`used technologies as trade secret