Protecting Volunteer Firefighters and Emergency Responders Act

Floor Speech

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Mr. CORNYN. Mr. President, the 114th Congress is just a little over 100 days old now, but we have actually seen what used to be called the world's greatest deliberative body actually get back to work and be producing results for the American people. Just a few months into this session, we have passed important legislation, from a budget--we will perhaps, as early as Tuesday, pass the first budget since 2009.

We repaired something called the doc fix, which maybe is inelegantly named but basically fixed a problem that had been lurking since 1977, when somehow we got the idea that we would be able to save money by cutting the reimbursement rates to doctors and hospitals. Then we were shocked, absolutely shocked, that some doctors would not see Medicare patients and some hospitals could not afford to build or expand in rural areas and the like.

Well, we got that off the table as well. Then, I am glad to say, last week we were able to pass some major antitrafficking legislation which, of course, dealt with the victims of human trafficking, the profile of which is about a 12- to 14-year-old girl who is literally in human bondage. So we have done some, I think, good work. There is a lot more we need to do.

Of course, the present legislation that enjoys broad bipartisan support is the Iran Nuclear Agreement Review Act of 2015. I, too, commend the chairman and the ranking member of the Foreign Relations Committee. I know this can be a frustrating process because other Members of the Senate now have ideas they want to offer by way of amendment. We are working through this. I think this will test their patience and ours in the process.

But this Chamber is poised to continue in the spirit of bipartisanship on other important issues as well: trade promotion authority, which, to me, is the essential link between us and the ability to pass important trade agreements.

Texas, as the Presiding Officer knows, is the leading export State in the Nation. We benefit from that because we understand that when you have markets for the things we grow or the livestock we raise or the manufactured goods we make, it is good for our economy, it is good for job creation. Well, trade promotion authority will be good for hard-working Texas families and families all across the country.

But there is another area that may not seem of great significance but I think is important, where I think we have another opportunity. That has to do with patent reform and particularly lawsuit abuse reform. Now, patents do not just affect the technology sector. They just do not affect the financial sector and Wall Street. It literally is a Main Street problem because you have restaurants now, you have real estate agents, you have hotels, motels, you have construction companies that have been sued by patent trolls, people who do not make anything, merely they hold a license to a patent and use that to file--frequently--frivolous litigation in order to literally shake down the defendant.

Many times it is people who cannot adequately defend themselves. Maybe they are a startup business, an innovator who has come up with a new idea or a better idea and they are thinly capitalized. Can you imagine what happens when they get sued by the patent trolls? Well, it is a sad and short story. Either they have to capitulate and pay the ransom or they go out of business entirely.

But patent reform is an issue whose time has come again. It is one I have been involved in for a number of years in the Senate. In 2011, after years of negotiations, Congress passed something called the America Invents Act. This is the first major patent reform in decades. This is something that makes America unique. You know, in Texas we believe in property rights. Well, what we are talking about is intellectual property rights. But when somebody smart or creative or innovative comes up with a better idea, our Constitution and our laws provide a means to protect that against people who would take it or steal it or infringe upon it. That is why patent law is so important.

But one of the issues left unaddressed was this rising tide of lawsuits and the threat of litigation, of which a wider and wider swath of stakeholders are now complaining loudly--again, not just the big technology firms but restaurants, hotels, motels, builders, real estate agents, and the like. So, in 2013, a number of Members of Congress began working on this legislation to address those frivolous claims, which really kill jobs because it kills innovation in the process.

Bills were introduced in the House and the Senate targeting the various aspects of this problem but focusing primarily on lawsuit abuse, lawsuits brought not to vindicate a legitimate claim by somebody who actually has lost something of value but merely somebody who is a holder of a license to sue, in essence, and uses it to shake down these small startup companies and innovators.

Well, we were able to see the passage, in December of 2013, of something called the Innovation Act in the House of Representatives. That legislation passed overwhelmingly, 325 to 91, with almost all Republicans and the bulk of Democrats supporting the bill. Here is the other thing. This is not just a Democratic or Republican issue. This is something the administration wholeheartedly supports.

In fact, this is one of the stories I told last year as I was traveling around Texas and elsewhere as evidence of the dysfunction, because, I asked: If Republicans are for something and Democrats are for something, if the majority of Congress is for it and the White House is for it, why is it we can't get it done? Well, the obstacle to getting it done was eliminated with the new majority in the Senate.

So I think we are poised to take good action here very soon. We are in a new Congress with a new leadership and a new majority. That is everything when it comes to reforming our broken patent system. Today, we had a broad bipartisan group of people, from the ranking member and the chairman of the Judiciary Committee, the former chairman, Senator Hatch, to Senator Schumer, who is in the leadership of the Democrats in the Senate, Senator Klobuchar, and Senator Lee.

All of us announced this broad, bipartisan support for a new piece of patent reform legislation designed to attack this problem of lawsuit abuse and the shakedown of America's innovators and job creators and technology creators. So Republicans and Democrats alike have come to realize that under the status quo, too many of our most promising innovators, not to mention other businesses, are wasting time and money in frivolous, costly litigation. This legislation takes a number of commonsense steps that ends the exploitation of these so-called patent trolls.

Many of those are not particularly earth-shaking, but the culmination of them, I think, will have a real positive impact on this problem.

First, it would require plaintiff's in patent cases to simply explain the substance of their claim when filing the initial lawsuit. What frequently happens is a lawsuit will be filed with no real detail as to the nature of the claim or the infringement of the patent. Then there would ensue costly and time-consuming discovery, until finally the plaintiff would figure out some claim they could make to hang their hat on. Well, we eliminate that by requiring upfront specific notice of what the infringement is in the nature of the claim.

Second, it would stay cases against the end users, including restaurants, motels, hotels, construction companies, and the like, and would give the party with the major incentive to defend the case the opportunity to do so. So the person who is actually responsible for the manufacture of a product--let's say a Wi-Fi device--the manufacturer would defend that case and not the hotel or motel that happened to deploy that Wi-Fi device in their hotel or their motel.

Third, the bill would bring greater fairness to the discovery process by limiting discovery until the court resolves threshold motions in the case. This is important because the court is going to have to make a decision whether this is a legitimate case that could go on and thus authorize the expensive and time-consuming discovery. If it is not a legitimate case, then that is the time for the court to address it by a motion to dismiss or some other legal device.

Fourth, it would curb the practice of sending abusive demand letters. What I have learned is that in patent litigation these days, there would be demand letters which literally would carpet bomb the people who were using some of this innovation, in an effort to shake them down. It causes a lot of expense, delay, and other consternation.

Fifth--and this is perhaps one of the most critical elements--it would allow courts to shift responsibility for the cost of patent litigation more often to the losing party when the court finds that the claim was not a reasonable claim to be brought. In other words, it was a privileged claim. So no longer can you file a lawsuit and pursue it, even though it is a bogus case, without any fear of actually having to pay the costs of the other side that prevails in a case involving an unreasonable use of the legal process.

So I believe, as many of my colleagues do, that these are sensible reforms, and it is one way we can take a step to protect better the access to justice for plaintiffs with legitimate claims of infringement and to deter those who simply abuse the system.

This is another promising area where I think the 114th Congress can distinguish itself from the 113th and previous Congresses by showing we can actually work together to try to solve real problems in a bipartisan way that hopefully will improve life just a little bit for the people we represent.

Entrepreneurs in Texas and throughout the country need this legislation to protect them from abuse of patent litigation practices that have burdened America's private sector for far too long.

The last point I would make is that I saw this morning the news that, basically, America's economy did not grow in the last quarter. Basically, the gross domestic product was, I think, a 0.2 percent increase. That is simply too slow of an economic growth to create the jobs we need for the population increases we are seeing.

So if we are going to get our economy growing again, which is the best way to raise the wages of hard-working American families, we are going to need to do a number of things, such as reform our tax system. We are going to need to rein in overreaching regulation, which is a wet blanket on the private sector and on job creation, and we are going to need to do efforts such as patent reform, as in this litigation reform legislation I have just been talking about. That will unleash this sleeping giant of the great American economy for the benefit of all Americans once again.

I yield the floor.

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