Patent Reform Act of 2011

Floor Speech

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Mr. DURBIN. Madam President, I know personally the extraordinary efforts made by the chairman of the Senate Judiciary Committee to bring this patent reform bill to the floor. I have worked with him in the past, and it has not been an easy task. I know that many times he felt he was close to having the right bill at the right moment, and then it slipped away. But his determination and his capacity to bring people together has resulted in this moment where the bill is before us. And it is important that it is, not just because of his hard work but because of what it means for this country.

I don't know whether it has formally been done, but this bill is being recharacterized as the America Invents Act instead of the Patent Reform Act because those few words tell a much bigger story. We are talking about the kind of innovation and research in America that will create successful companies and good American jobs, and that is why this bill is important.

It has been a long time--going back to our origins as a nation--since we recognized the right for those who invent things to have some proprietary personal interest in those inventions, and we set up the Patent and Trademark Office for that purpose. Unfortunately, that office of the Federal Government isn't keeping pace with the creativity of our country, and that is why Senator Leahy has brought this bill to the floor.

This is bipartisan legislation. I commend him for his work on it, and I commend my Republican colleagues for joining him. Senators Grassley, Kyl, Sessions, and Hatch have also worked diligently on this.

This may not be the simplest area of the law. I can remember that when I was in law school here in town, there was one student--he was the only African-American student in my class, and that goes back to the days of Georgetown Law, Senator Leahy, when there were few minorities and few women. He was African American. He wore a white shirt and tie to class every day.

I went up to him one day and said: So tell me your background.

He said: Well, I am an engineer, and I want to be a patent lawyer.

And I quickly moved to another table because I realized there wasn't anything we could talk about. I knew nothing about his world. But it is a specialized world, and one in which I am sure he was very successful. Patent law is something that is very hard to explain, and I think that is part of the reason this bill has taken some time to come here.

But economic growth is driven by innovation, and if you have a good idea for a new product in America, you can get a patent and turn that idea into a business. Millions of good American jobs are created this way. The list is endless.

Patents have been the source of great American stories. Joseph Glidden, a farmer from DeKalb, IL, patented barbed wire fence in 1874. It dramatically changed the way ranchers and cattlemen and others were able to do their business as they settled the frontier in America. I might add that the DeKalb High School nickname is ``The Barbs'' as a consequence of this one discovery. Glidden's invention made him a wealthy man, but his legacy included granting the land for what became Northern Illinois University in DeKalb. Ives McGaffey of Chicago invented and patented one of the first vacuum cleaners in 1869. Josephine Cochran of Shelbyville, IL, once said, ``If nobody else is going to invent a dishwashing machine, I'll do it myself.'' In 1886, she did it and got a patent for it. The company she created is now known as Whirlpool.

Our patent laws set the rules of the road for American innovation. By giving inventors exclusive rights over their inventions for a term of 20 years, patents provide great incentive for investment. Patents enable inventions to be shared with the public so new innovations can be based upon them.

It has been a long time since we have looked at our patent laws and really updated them. Just think about this, putting it into perspective. It has been over 50 years. And I commend Senator Leahy for tackling this. It has not been easy. The pace and volume of innovation has quickened a great deal since we looked at this law over 50 years ago, and the Patent and Trademark Office has struggled to keep up.

Over the last few years, Congress has debated how best to modernize our patent law. It has been a tough issue. We have one set of patent laws governing the incredibly diverse range of inventions and industries. In trying to update our laws, we have to be careful not to make changes that benefit some industries but undermine innovation in others. The bill before us strikes the right balance. That is why I voted for it in Committee and support it. It is a product of years of bipartisan negotiation. It is a good compromise. It is consensus legislation passed out of the Judiciary Committee a few weeks ago with a unanimous 15-to-0 vote.

The bill is supported by the Obama administration and his Cabinet officers and a broad and diverse group of stakeholders, all the way from the American Bar Association, to the AFL-CIO, to the Biotechnology Industry Organization. The list is very long.

In my own home State, I went to the major manufacturing companies and said: You look at it because these inventions are your future. You have to be confident that what we do to the law is consistent with new inventions, new innovations, and new jobs not just at your company but at other places.

I am happy to say that those supporting it include the Illinois Tool Works, Caterpillar--the largest manufacturer in my State--Motorola, Monsanto, Abbott, IBM, and PepsiCo.

The bill will improve the ability of the Patent and Trademark Office to award high-quality patents. Right now, there is a backlog of over 700,000 patent applications, which they are struggling to clear. Think about that--700,000 inventions and ideas that are waiting to be legally recognized so that they can go forward in production. This bill will streamline the operations and adjust the user fees to make sure the agency clears the backlog.

The bill takes steps to improve submission of information to the PTO about pending patent applications. I would note that it keeps user fees low for small startups and individual investors.

In past years, there were some parts of the bill that generated controversy, including provisions relating to damages and venue in patent infringement lawsuits. The good efforts in this bill that have been negotiated have resulted in these provisions no longer being a subject of controversy.

I know we will have some amendments offered on the bill, and I expect we will have a good debate on them. At the end of the day, I expect we will have a strong bipartisan vote in passing this bill. Senator Leahy is now trying to get this train into the station. There are a lot of people bringing cars here who want to hook on because they know this is an important bill and likely to pass.

There are some areas, I might add, which we did not discuss in committee and which I considered raising in an amendment on the floor but held back. One of them relates to the controversial issue of gene patenting, which I have been learning about recently. It is my considered opinion this is now working its way through the courts and to try to intervene on the floor here would be premature. The courts have to decide whether people can patent genes.

There was a recent story I saw on ``60 Minutes'' where a company known as Myriad had patented the gene for breast cancer. They have now created a test, incidentally, to determine whether a woman has this gene. The test is in the range of $4,000 to $5,000. The actual cost of the test should be much lower, and the obvious question the courts are deciding is, How can you claim ownership of a gene that occurs in nature in human bodies you didn't create? That is the question before the courts. We could have debated it here for a long time and maybe never resolved it, but depending on how the courts come out on the issue, we may visit it again.

I hope the House will take this bill up quickly. I know they want to look it over from their perspective, but we need to pass this. If we are talking about creating jobs in successful, thriving businesses in America, this bill needs to pass.

I thank Chairman Leahy for his leadership and for his hard work on this issue. I am honored to serve with him on the Senate Judiciary Committee.

I yield the floor.

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