HJU104000
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`PAGELJ
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`ALDERSON REPORTING COMPANY
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`HJUlO4000
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`MARKUP OF H.R. 1249, TH
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`2
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`*RICA INVENTS ACT
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`Thursday, April 14, 2011
`
`House of Representatives
`
`Committee on the Judiciary
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`7 Washington, D.C.
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`8
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`9
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`_0
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`ll
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`_2
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`The committee met, pursuant to call, at 10:35 a.m.,
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`in
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`Room 2141, Rayburn Office Building, Hon. Lamar Smith
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`[chairman of the committee] presiding.
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`Present: Representatives Smith, Sensenbrenner, Coble,
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`Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, Forbes,
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`King, Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin,
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`_4 Marino, Gowdy, Ross, Adams, Quayle, Conyers, Berman, Nadler,
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`_5
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`_6
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`_7
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`Scott, Watt, Lofgren, Jackson Lee, Waters, Cohen, Johnson,
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`Pierluisi, Quigley, Chu, Deutch, Sanchez, and Wasserman
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`Schultz.
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`DMC Exhibit 2124_001
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`
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`PAGELJ
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`|—‘
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`(fl
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`ALDERSON REPORTING COMPANY
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`HJUlO4000
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`MARKUP OF H.R. 1249, TH
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`2
`
`*RICA INVENTS ACT
`
`Thursday, April 14, 2011
`
`House of Representatives
`
`Committee on the Judiciary
`
`7 Washington, D.C.
`
`8
`
`9
`
`_0
`
`ll
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`_2
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`_3
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`The committee met, pursuant to call, at 10:35 a.m.,
`
`in
`
`Room 2141, Rayburn Office Building, Hon. Lamar Smith
`
`[chairman of the committee] presiding.
`
`Present: Representatives Smith, Sensenbrenner, Coble,
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`Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, Forbes,
`
`King, Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin,
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`_4 Marino, Gowdy, Ross, Adams, Quayle, Conyers, Berman, Nadler,
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`_5
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`_6
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`_7
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`Scott, Watt, Lofgren, Jackson Lee, Waters, Cohen, Johnson,
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`Pierluisi, Quigley, Chu, Deutch, Sanchez, and Wasserman
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`Schultz.
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`DMC Exhibit 2124_001
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`
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`HJUlO4000
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`PAGELJ
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`[\)
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`18
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`Staff present:
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`Sean McLaughlin, Chief of Staff;
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`19 Allison Halatei, Deputy Chief of Staff/Parliamentarian;
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`Sarah Kish, Clerk; Perry Apelbaum, Minority Staff Director;
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`and Chrystal Sheppard.
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`20
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`21
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`22
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`DMC Exhibit 2124_002
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`HJUlO4000
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`PAGE
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`3
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`23
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`Chairman Smith.
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`[Presiding] The Judiciary Committee
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`24 will come to order.
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`44
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`Without objection,
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`the chair is authorized to declare
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`recesses of the committee at any time.
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`The c_erk will call the role to establish a quorum.
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`Ms. Kish. Mr. Smith?
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`Chairman Smith.
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`Present
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`Vs. Kish. Mr. Sensenbrenner?
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`Vr. Sensenbrenner. Here.
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`Vs. Kish. Mr. Coble?
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`Vr. Gallegly?
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`Vr. Goodlatte?
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`Vr. Lungren?
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`Vr. Chabot?
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`Vr.
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`Issa?
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`Vr. Pence?
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`r. Forbes?
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`Vr. King?
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`Vr. Franks?
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`Vr. Gohmert?
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`Vr. Gohmert. Here
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`Vs. Kish. Mr. Jordan?
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`DMC Exhibit 2124_003
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`HJUl04000
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`PAGE
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`4
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`45
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`Vr. Poe?
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`Vr. Chaffetz?
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`Vr. Griffin?
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`Vr. Marino?
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`Vr. Gowdy?
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`Vr. Ross?
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`Vs. Adams?
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`Vr. Quayle?
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`Vr. Conyers?
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`Vr. Berman?
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`Vr. Nadler?
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`Vr. Scott?
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`Vr. Watt?
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`Vr. Watt. Present.
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`Vs. Kish. Ms. Lofgren?
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`Vs. Lofgren. Present.
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`s. Kish. Ms. Jackson Lee?
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`Vs. Jackson Lee.
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`Present.
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`Vs. Kish. Ms. Waters?
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`Vr. Cohen?
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`Vr. Johnson?
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`Vr. Pierluisi?
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`DMC Exhibit 2124_004
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`HJUl04000
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`PAGE
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`5
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`67
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`Vr. Quigley?
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`Vr. Quigley. Here.
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`Vs. Kish. Ms. Chu?
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`Vs. Chu. Present.
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`Vs. Kish. Mr. Deutch?
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`Vs. Sanchez?
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`Vs. Wasserman Schultz?
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`Chairman Smith.
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`The gentleman from Arizona?
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`Mr. Quayle. Here.
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`Chairman Smith.
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`The gentleman from Illinois? Oh,
`
`have you recorded yourself? Okay.
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`Chairman Smith.
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`How is the gentleman from Michigan
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`the gentlewoman from California recorded?
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`Ms. Kish. Not recorded, sir.
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`Chairman Smith.
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`The gentlewoman from California?
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`Ms. Sanchez. Present.
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`Chairman Smith. And the gentleman from Michigan?
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`Mr. Conyers. Present.
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`Chairman Smith.
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`Is present.
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`The c_erk will report.
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`Ms. Kish. Mr. Chairman,
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`l5 m mb rs r spond d pr s nt.
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`Chairman Smith.
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`A working quorum is present and we
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`DMC Exhibit 2124_005
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`
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`HJUlO4000
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`PAGELJ
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`(5\
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`89 will proceed.
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`Pursuant to notice,
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`I now call up H.R. 1249 for
`
`purposes of markup.
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`The clerk will report the bill.
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`Ms. Kish.
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`“H.R. 1249,
`
`to amend Title 35, United
`
`States Code,
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`to provide for patent reform.”
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`Chairman Smith. Without objection,
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`the bill will be
`
`considered as read.
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`[The information follows:]
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`90
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`91
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`92
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`93
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`94
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`95
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`96
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`97
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`DMC Exhibit 2124_006
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`HJUlO4000
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`PAGE
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`72
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`_l30
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`I will recognize myself in opposition to the
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`_13l
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`amendment.
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`_Z32
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`This amendment expands the inter partes review program
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`_Z33
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`from 12 months after the fillng of a civil action to 30 days
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`_Z34
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`after the Markman hearing.
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`"his amendment could create an
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`_Z35
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`open—ended process because there is actually no guarantee
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`_l36
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`that a Markman hearing will
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`v n tak plac .
`
`"h
`
`int r
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`_Z37
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`partes proceeding in H.R.
`
`l249 has been carefully written to
`
`l138
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`balance the need to encourage its use while at same time
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`_139
`
`preventing the serial harassment of patent holders. This
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`_Zl0
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`bill represents a delicate balance, and making such a core
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`llll
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`change to the deadline may turn the inter partes program
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`_ZZ2
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`into a tool for litigation gamesmanship rather than a
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`_Zl3 meaningful and less expensive alternative to litigation.
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`_1l4
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`lZZ5
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`For those reasons,
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`I oppose the amendment.
`
`Are there other members who wish to be heard on this
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`_1l6
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`amendment?
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`_117
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`_Zl8
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`[No response.]
`
`Chairman Smith.
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`If not, we will vote on it. All
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`_Zl9
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`those in —— the gentleman from California, Mr. Berman,
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`is
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`_Z50
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`recognized.
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`_Z5l
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`Mr. Berman. Mr. Chairman,
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`the issue you raise —— I
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`DMC Exhibit 2124_007
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`HJUlO4000
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`PAGE
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`91
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`_830
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`partes is designed so that you bring your best arguments in.
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`_83l
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`The program forces the party to make a decision, and if you
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`_832
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`decide to initiate inter partes, you need to bring in your A
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`_833
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`game.
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`Inter partes review is not meant to simply be a
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`_834
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`program that you can use to harass a patent owner.
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`For it
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`_835
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`to truly be a meaningful and cheaper alternative to
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`_836
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`litigation, we must maintain the higher threshold. And for
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`those reasons,
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`I oppose the amendment.
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`;838
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`Are there other members who wish to be heard on the
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`_839
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`amendment?
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`The
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`gentleman from California, Mr. Berman?
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`_8l0
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`Mr. Berman. Yes, Mr. Chairman.
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`I want to speak in
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`_8ll
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`favor of the Chu amendment.
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`The Patent Office has made it
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`_8Z2
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`quite clear that the threshold proposed by the Chu
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`_8l3
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`amendment, as opposed to the one in the current bill and in
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`_8l4
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`the Senate bill,
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`is something they can work with very
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`I815
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`easily.
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`They have been working with that threshold all the
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`_8l6
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`time.
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`_817
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`One of the major purposes of patent reform was to have
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`_8l8
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`a process that allowed our concern about bad patents having
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`_8l9
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`been issued to be reexamined and to avoid all the costs of
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`_850
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`litigation.
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`The current _anguage on the threshold is too
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`_85l
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`restrictive in terms of a_lowing those patents to be
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`DMC Exhibit 2124_008
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`HJUlO4000
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`PAGE
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`221
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`1522
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`Mr. Conyers.
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`Permit me to announce that we are losing
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`1523
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`Dr. Chrystal Sheppard, wqo has been with us three and a half
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`1524
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`years, sitting to my left.
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`She is the only lawyer that I
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`1525
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`know that has a Ph.D.
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`in molecular bio_ogy. And she goes to
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`1526
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`the University of Nebraska's law schoo_. And we will miss
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`1527
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`her very, very much.
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`1528
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`1529
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`1530
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`1531
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`1532
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`Chairman Smith. We wish her well.
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`[Applause.]
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`Chairman Smith. Good luck, my dear.
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`Ms. Sheppard.
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`Thank you.
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`Chairman Smith. And that is a good conclusion. And,
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`1533
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`in fact, we are adjourned.
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`Z534
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`[Whereupon, at 4:19 p.m.,
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`the committee was
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`1535
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`adjourned.]
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`DMC Exhibit 2124_009
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