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Public Statements

Correcting and Improving the Leahy-Smith America Invents Act

Floor Speech

Location: Washington, DC


Mr. LEAHY. Earlier this Congress, the Senate and the House of Representatives came together to pass the Leahy-Smith America Invents Act, the most comprehensive change to our Nation's patent laws in 60 years. It was the result of more than 6 years of bipartisan, bicameral work by many, including my counterpart on the House Judiciary Committee, Chairman Lamar Smith. Now 15 months since President Obama signed our bill into law, its reforms are already starting to take effect, benefiting inventors and businesses around the country.

I am pleased the Senate has taken action to pass Chairman Smith's technical corrections legislation, H.R. 6621. The legislation makes a small number of changes to clarify and improve the law and to help streamline its implementation. The bill corrects several minor drafting errors and clarifies provisions concerning the inventor's oath, notice of patent term adjustments, derivation proceedings, and the terms of the Patent Public Advisory Committee. It also addresses an inadvertent ``dead zone'' by clarifying the remedies available to those wishing to challenge patent applications.

The changes are straightforward and noncontroversial. They should help reduce confusion and ease implementation of the law. I appreciate Chairman Smith's efforts to draft this legislation and to move it through the House of Representatives so the Patent and Trademark Office, PTO, and participants in the patent system can benefit from its effects.

Regrettably, the legislation passed today does not include one technical correction that would improve the law by restoring Congress's intent for the post-grant estoppel provision of the America Invents Act. Chairman Smith recently described certain language contained in that provision as an ``inadvertent scrivener's error.'' As written, it unintentionally creates a higher threshold of estoppel than was in the legislation that passed the Senate 95-5, or that was intended by the House, according to Chairman Smith's statement. I hope we will soon address this issue so that the law accurately reflects Congress's intent.

We must also continue to focus on the troubling problem of several hundred ``pre-GATT'' patent applications that have now been pending before the Patent Office for over 18 years. The original version of this legislation in the House addressed that problem by providing a 1-year window for the pending applications to be processed. Unfortunately, that language was removed before final passage in the House and replaced with a provision requiring the Patent Office to prepare a report. The amended bill the Senate has passed today strikes the report, but I will work closely with the PTO to identify the cause of the delays and ensure that the PTO has the tools it needs to address any abuses by those who may be trying to game the system and use the patent laws to impede, rather than encourage innovation.

There is still more work to be done to address the problems that confront our patent system. The assertion of patents is still too often used by patent trolls to extract payment even where there is not infringement of a valid patent, and the ``tech patent wars'' among the large mobile phone companies show the perils to competition that can come when companies do not reach business-to-business resolutions of their patent disputes. But the important reforms made by the Leahy-Smith America Invents Act go a long way toward improving the patent system. This legislation will help streamline those reforms, helping inventors, businesses, and the countless American workers employed in industries that produce and rely on intellectual property.


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