A bill to amend title 35, United States Code, and the Trademark Act of 1946 to provide that the Secretary of Commerce, in consultation with the Director of the United States Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges, and for other purposes.

Mr. Speaker, I yield myself so much time as I may consume. I rise in support of S. 3295, and I urge the House to adopt the bill.

Mr. Speaker, 9 years ago Congress enacted the American Inventors Protection Act as part of a larger intellectual property and telecommunications reform measure. Among its many provisions, this law confers a measure of autonomy on the Patent and Trademark Office. At the time, inventors, trademark owners, and Members of Congress believed the agency would function more efficiently if it were allowed greater operational freedom. In fact, some of the earliest drafts of the legislation, dating back to the early and mid-1990s, sought to transform the Patent and Trademark Office into a public corporation.

Consistent with this goal, the 1999 law enhances the authority of the Patent and Trademark Office Director to oversee agency affairs. This includes empowering the Director, not the Secretary of Commerce, to appoint administrative law judges serving on the Board of Patent Appeals and Interferences, as well as the Trademark Trial and Appeal Board.

Unfortunately, this small and seemingly innocuous change may very well violate an obscure provision of the United States Constitution, the so-called ``appointments clause.'' That's article II, section 2, which enumerates the powers of the President, including the right to appoint various judges, ministers, and other government officials. The last portion of the clause states that ``Congress may . . . vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.''

In other words, a straightforward reading of article II, section 2, which I strongly endorse, suggests the 1999 authority that Congress bestowed on the Patent and Trademark Office Director to appoint administrative law judges is unconstitutional, inconsistent with article II, section 2. Instead, this right is more properly reserved for the head of the relevant department, the Secretary of Commerce, because the Patent and Trademark Office remains an agency within Commerce.

But what does this mean as a practical matter? Why it is a problem? The answer lies in the number of judges appointed since the 1999 law took effect.

Of the 81 judges serving on the two boards, 50 were appointed by the Patent and Trademark Office Director under his new authority. Those judges have rendered hundreds of decisions, all of which may be constitutionally suspect if challenged. And that is already happening in one case, the Translogic Technologies versus Dudas case, which is pending before the Supreme Court.

This body knows how important intellectual property is to our national economy. With all the other problems plaguing the patent system, the last thing we need is a crisis that reopens settled legal disputes. This isn't fair to the litigants, especially those who won, and it places rights and fair access to inventions in limbo.

The solution we must adopt is S. 3295. The bill transfers the authority to appoint administrative law judges from the Patent and Trademark Office Director to the Secretary of Commerce and makes it consistent with article II, section 2 of the Constitution.

The legislation also adopts two features developed by the Patent and Trademark Office and the Department of Justice. One empowers the Secretary to ``deem'' or ratify all the appointments made by the PTO Director under the 1999 law. The other creates a ``de facto officer'' defense to any challenge made to the appointment of a patent or trademark administrative law judge.

Pursuant to the defense, the acts of a public officer performed under color of authority are considered valid and immune from collateral attack. Born of policy and necessity, the defense protects the interests and reasonable expectations of the public who must rely on the presumptively valid acts of public officials.

In closing, we must enact S. 3295 much sooner rather than later to avert a potential litigation crisis that would prove wasteful, unnecessary, and unfair.

S. 3295 does provide a measure of immunity. Congress clearly has the authority to do so. And today, we have the responsibility to quickly move S. 3295.

Mr. Speaker, I urge adoption and yield back the balance of my time.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. President, today I am introducing the Emergency Energy Assistance Act of 2008, which will provide emergency relief to families in Massachusetts and around the country who are suffering from record energy costs. I am joined by Senators Kennedy, Lieberman, Cardin, Menendez, Whitehouse, Cantwell and Dodd in introducing this important and timely piece of legislation. This legislation will help some of the 85 percent of American families who are eligible for assistance from the Low-Income Home Energy Assistance, but have been unable to obtain it due to budget restrictions.

Consumers around the country are facing skyrocketing prices for transportation and heating fuels. Heating oil prices in the Northeast averaged $3.40 in the first quarter of 2008, compared to just $2.52 in 2007, putting severe strains on the approximately 960,000 Massachusetts families who simply cannot afford these skyrocketing prices. Today, 100,000 Massachusetts households are still behind on their energy bills from last winter and remain at risk of shut-offs of vital energy services.

These high costs are expected to continue through this year's heating season. Home heating oil prices in Massachusetts are already averaging $4.60/gallon. The typical family uses approximately 1,000 gallons of heating oil during the course of the winter--Massachusetts households could realistically be looking at heating bills approaching $5,000--an impossible sum for thousands of families around the state. When coupled with the escalating costs of transportation fuels, the burden is simply too much to bear.

The primary Federal energy assistance program for low-income households is the Low-Income Home Energy Assistance Program LIHEAP. As energy costs rise, the demand for LIHEAP funds grows. 5.8 million families received LIHEAP funds in 2008, the highest participation levels in 16 years. In Massachusetts, over 145,000 families receive LIHEAP funds. However, as energy costs rise and demand for LIHEAP grows, the program's budget has not kept pace and we just can't cover all the people that need help. In fact, only 15 percent of eligible households nationally are receiving funding. Even in those households that do receive LIHEAP funds, the money isn't going very far--the average LIHEAP grant only pays for 18 percent of the total cost of heating a home with heating oil.

I have been a long-time, strong supporter of legislation introduced by Senator Sanders--the Warm in Winter, Cool in Summer Act that would fund the LIHEAP program for 2008 at the fully-authorized level of $5.1 billion, and I have incorporated that essential provision into the legislation I am introducing today.

In addition, the Emergency Energy Assistance Act of 2008 includes critical emergency funding for the Weatherization Assistance Program at the U.S. Department of Energy. This program enables service providers to install energy efficiency measures in the homes of qualifying homeowners free of charge, and it provides real, short-term opportunities for homeowners to bring down their energy bills. My legislation would fund the program at $750 million, the fully- authorized level for 2008.

Finally, this legislation would provide a temporary increase in the Earned Income Tax Credit EITC for 2008 to help families pay their increasing energy bills. The EITC is a refundable tax credit for low- income working families. These households are bearing the burden of escalating energy costs, yet many of these beneficiaries did not receive the full rebates provided through the Economic Stimulus Act of 2008.

This legislation would increase the maximum EITC credit amount by $300 for 2008. By increasing the credit amount, more families will be eligible for the credit than under current law. Beneficiaries will receive the increased EITC when they file their 2008 tax returns. This $300 will help working families with rising heating and transportation costs.

In the face of skyrocketing energy prices, we must take serious and immediate measures to assist low-income working families. We cannot stand idly by as American families are forced to make impossible decisions about whether to heat their homes or put food on their tables. This is a crisis of tremendous proportions, and it is incumbent upon us to take steps now to ensure that millions of households are not literally left out in the cold this winter.

Mr. President, today I am introducing an important measure that will provide local, State, and Tribal law enforcement agencies along our Nation's borders with critical assistance in addressing border-related criminal activity. I am pleased that Senators Hutchison and Domenici are joining me in introducing this bipartisan legislation.

By virtue of their proximity to an international border, law enforcement agencies operating along the border face a variety of unique challenges. Criminal enterprises are able take advantage of weaknesses in security to traffic drugs and other illicit contraband into the country, as well as smuggle weapons and stolen vehicles out of the country. This creates a nexus of criminal activity that requires substantial resources to address.

While Congress has dramatically increased funding to hire additional Border Patrol agents and to build tactical infrastructure--such as surveillance cameras and barriers--we haven't done enough in terms of helping local law enforcement. The reality is that although we are making some progress in securing the borders, local law enforcement agencies still have to pick up

much of the burden in tackling the criminal activity throughout the region.

Many of these police departments are ill-suited to cover these costs without financial assistance. Many are responsible for large, rural areas of land and lack the personnel and equipment to adequately patrol these areas. If we are going to be successful in bringing real security to the border region, we need to have Federal, State, and local law enforcement agencies doing their respective parts to fight criminal activity. But to do this, we also need to ensure that local law enforcement have the resources necessary to play a constructive role, and to recognize the substantial costs they are incurring.

The Border Law Enforcement Relief Act of 2008 would do just that.

Specifically, the legislation would: establish a new competitive grant program within the Department of Justice to assist local law enforcement operating within 100 miles of the U.S. borders with Mexico and Canada; authorize the Attorney General to designate areas outside of the 100-mile limit as ``High Impact Areas'' to permit additional police departments impacted by border-related criminal activity, such as drug smuggling, to access grant funding; and authorize $100 million each year for the next 5 years to implement this program.

Let me also be clear about what this legislation would not do. It does not confer local law enforcement with authority to enforce Federal immigration law. The purpose of this bill is to help these agencies cover some of the costs they incur in addressing border-related criminal activity, not to shift another burden to them.

The U.S.-Mexico border region is a vibrant area, economically and culturally. International trade with our southern neighbor continues to increase and communities on both sides of the border maintain strong ties. Unfortunately, over the last year and a half we have seen a dramatic increase in the level of violence in Mexico as the government steps up efforts to tackle drug cartels--over 4,000 people have been killed. This violence has had a negative impact on both sides of the border, and Congress recently provided $400 million in assistance for Mexican law enforcement to address this problem. But we also need to be aware of the fact that local law enforcement within the United States also need additional resources to prevent this violence from spreading and to fight these drug gangs in a comprehensive manner.

I strongly believe this legislation will provide this essential assistance and I hope my colleagues will support this effort.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. Speaker, I move to suspend the rules and pass the Senate bill (S. 3295) to amend title 35, United States Code, and the Trademark Act of 1946 to provide that the Secretary of Commerce, in consultation with the Director of the United States Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

Mr. Speaker, I yield to myself such time as I may consume.

Intellectual property accounts for billions of dollars in our Nation's economy. The success of this industry largely depends on the protections afforded them by the United States Patent and Trademark Office and the decisions made by administrative patent and trademark judges.

In 1999, the process by which administrative patent and trademark judges are appointed was modified as part of the American Inventors Protection Act. That act, which provided greater accountability and efficiencies at the Patent and Trademark Office, transferred the power to appoint these judges from the Secretary of Commerce to the Director of the U.S. PTO.

Recently, however, concerns have been raised as to the constitutionality of the Director making such appointments. Already, at least two U.S. PTO decisions have been challenged on this basis.

We firmly believe that appointments made by the Director are constitutional. Nevertheless, in order to remove any doubts, the House and Senate has reached identical bills to respond to these concerns. H.R. 6362, sponsored by Howard Berman, John Conyers, Lamar Smith, and Howard Coble, and S. 3295, sponsored by Patrick Leahy and Arlen Specter, make three changes to the administrative judge appointments process. Today, we take up the Senate bill, which passed the Senate last week by unanimous consent.

First, S. 3295 restores the statutory appointment authority to the Secretary of Commerce.

Second, it allows the Secretary to retroactively appoint administrative judges who have been acting as de facto judges. The appointments would be effective as of the date the judges were originally appointed by the Patent and Trademark Office Director.

And third, the bill provides a de facto officer defense to counter challenges to the United States Patent and Trademark Office decisions made by these administrative judges prior to their retroactive appointment.

This legislation is intended to ensure certainty in the market and to end unnecessary litigation and the consumption of judicial resources on an issue over which there should be no dispute.

But should these judgeships be found to be unconstitutional and not de facto officers, the courts should remand the affected cases back to the U.S. PTO panels so that they may dealt with expeditiously.

Given the importance of intellectual property to our Nation's economy, years of uncertainty as the courts determine the constitutionality of the appointments process would be devastating.

The sponsors of H.R. 6362 and S. 3295 have provided a way through this uncertainty. Accordingly, I urge my colleagues to support this critical legislation.

I reserve the balance of my time.

Mr. Speaker, the bill also makes a technical change to insert the term ``deputy director,'' the term in current use, in place of ``deputy commissioner,'' an outdated term mistakenly used in the 2002 bill. Because related terms no longer appear in the underlying statute, this change could not be properly executed in the 2002 bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise today in support of S. 3295, to amend title 35, United States Code, and the Trademark Act of 1946 to provide that the Secretary of Commerce, in consultation with the Director of the United States Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges. S. 3295 amends both the Patent Act and Lanham Act with regard to administrative judge appointments. I support the bill and I encourage my colleagues to do likewise.

S. 3295 proposes that the Secretary of Commerce, in consultation with the PTO Director, appoint administrative patent judges and administrative trademark judges. H.R. 6362 also states that the Secretary of Commerce may deem the appointment of an administrative patent judge or administrative trademark judge who previously held office pursuant to an appointment by the PTO Director to have taken effect on the date when the administrative patent judge or administrative trade judge was originally appointed by the PTO Director. Additionally, the bill creates a defense to a constitutional challenge of an administrative patent judge or administrative trademark judge appointment, declaring that the administrative patent judge or administrative trademark judge was acting as a de facto officer after being appointed by the PTO Director.

Before March 2000, administrative patent judges were appointed by the Secretary of Commerce. In November 1999, new legislation gave the appointment power to the director of the PTO. That legislation took effect on March 29, 2000. Since then 47 of the 74 administrative patent judges currently serving on the Board of Patent Appeals and Interferences were appointed by the director of PTO.

S. 3295 is necessary because it creates a defense to constitutional challenge of an administrative patent judge or administrative trademark judge's appointment. This bill was introduced in response to several challenges.

In those challenges, parties are contesting the validity of the Board of Patent Appeals and Interferences decisions based upon the alleged unconstitutionality of the appointment of certain administrative patent judges who participated in those decisions. The challengers argue that the director of the PTO does not have the power of appointment under Article 2 of the Constitution. If courts hold these appointments unconstitutional, the effects could be widespread, affecting potentially thousands of patents and patent applications. This situation alone would lead to a greater patent backlog. The PTO already faces what seems to be an insurmountable patent backlog.

Specifically, this challenge creates arguments for patent applicants whose patent application rejections were affirmed by the Board of Patent Appeals and Interferences, as well as a potential defense for patent litigants where the patent in suit resulted from the Board's overturning an examiner's final rejection. S. 3295 is necessary to preserve the integrity of the administrative patent judge and administrative trademark judge appointment system.

I support this Act and encourage my colleagues to support it also.