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Patent Reform Act of 2007

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Location: Washington, DC

PATENT REFORM ACT OF 2007 -- (House of Representatives - September 07, 2007)

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Mr. PENCE. Mr. Chairman, I offer an amendment.

The Acting CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

Amendment No. 5 offered by Mr. Pence:

Page 40, line 9, strike ``identifies'' and all that follows through line 11 and insert the following:

``(1) identifies the same cancellation petitioner and the same patent as a previous petition for cancellation filed under such section; or

``(2) is based on the best mode requirement contained in section 112.

The Acting CHAIRMAN. Pursuant to House Resolution 636, the gentleman from Indiana (Mr. Pence) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Indiana.

Mr. PENCE. I yield myself such time as I may consume.

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. PENCE. Mr. Chairman, I rise today in support of an amendment that would simply clarify patent law in what is known as ``best mode.''

Before explaining my amendment and the need for it, I want to take a brief moment to express my personal gratitude to Ranking Member Lamar Smith for his years of work on this issue, and to express my appreciation not only to Chairman Conyers, but to Chairman Berman, for the bipartisan manner in which they have proceeded on this legislation, so vital as it is to our national life and to our economic vitality.

Years of countless hearings, great dedication have gone into this bill on both sides of the aisle. And while, Mr. Chairman, I'm not convinced that it's a perfect bill, I believe, as the gentleman from California said, it's a work in progress, as is all complex American law, and I think that moving forward is the right thing to do today.

With that, I would like to yield 1 minute to the distinguished ranking member of the committee, the gentleman from Texas.

Mr. SMITH of Texas. Mr. Chairman, I thank my friend from Indiana for yielding, and I want to point out that he is a member of the Intellectual Property Subcommittee of the Judiciary Committee. I know he is going to describe this amendment very well, so I will not go into that detail, but simply urge my colleagues to support it.

Mr. PENCE. I thank the gentleman for his support.

Mr. Chairman, the Constitution vests, in article I, section 8, clause 8, the power and the duty of the Congress ``to promote the progress of science and useful arts by securing for limited times to inventors the exclusive right to their discoveries.'' This is an express obligation of the Congress under the Constitution.

Our patent laws, as currently written, were essentially drafted over 50 years ago, and I believe it is time to update them to account for changes in our dynamic 21st century economy.

We need to strengthen out patent laws to make sure that patents that are issued are strong and high quality, but I would submit that we also need to reform our patent laws to eliminate lawsuit abuse that has become so prevalent. Aspects of this legislation will do that; my amendment seeks to do that further.

As I said before, I am sympathetic to those who say that further work on damages needs to be done in conference. I agree with their sentiment to that point, and I trust that will occur.

On balance, though, I have determined that this legislation is an important and useful step toward modernizing and strengthening our American patent law, and I am pleased to support it. But I encourage Members of the House not to take this step without first supporting the Pence amendment, which makes an important clarification of provisions governing what is known as best mode in patent law.

At the Judiciary Committee markup of this bill, I first supported an amendment which would have repealed best mode in full. American patent law requires that a patent application, ``set forth the best mode contemplated by the inventor of carrying out his invention'' at the time the application is filed. But providing the best mode at the time of application is not a requirement in Europe or in Japan or in any of the rest of the world, and it has become a vehicle for lawsuit abuse.

In my view, the best mode requirement of American law imposes extraordinary and unnecessary costs on the inventor and adds a subjective requirement to the application process, and I believe public interest is already adequately met in ensuring quality technical disclosures for patents.

At the Judiciary Committee, I offered a best mode relief amendment that was accepted. The Pence amendment then retained best mode as a specifications requirement for obtaining a patent, the intent to maintain in the law the idea that patent applicants should provide extensive disclosure to the public about an invention. But the Pence amendment endeavored to remove best mode from litigation.

Increasingly in patent litigation defendants have put forth best mode as a defense and a reason to find patents unenforceable. It becomes virtually a satellite piece of litigation in and of itself, detracts from the actual issue of infringement, and literally costs American inventors millions in legal fees.

The intent of the amendment was to keep best mode in the Patent and Trademark Office. My amendment today continues this effort toward eliminating this archaic and costly provision of the law. Specifically, the amendment today makes it clear that arguments about best mode cannot serve as the basis for post-grant review proceedings. It's quite simple in that effect.

With my amendment, under the new post-grant review system, best mode will not be litigated. That will lessen the burden put on patent holders in defending their patents in post-grant review proceedings, and it will prevent the expenditure of millions of dollars in needless lawsuit abuse.

I encourage my colleagues to support the amendment.

Mr. CONYERS. Will the gentleman yield?

Mr. PENCE. I would be very pleased to yield to the distinguished Chair.

Mr. CONYERS. Not only to thank the gentleman for producing this amendment, but also to appreciate all the work that he did on helping us make this bill as good as it was. We thank you very much.

Mr. PENCE. I thank the chairman for his remarks. And I urge my colleagues to support the Pence amendment so we can further clarify the intended best mode relief.

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