Veterans Rehabilitation and Training Improvements Act of 2009

Mr. President, ingenuity and innovation have been a cornerstone of the American economy from the time Thomas Jefferson issued the first patent to today.

The Founding Fathers recognized the importance of promoting innovation, and the Constitution explicitly grants Congress the power to ``promote the progress and science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.'' The discoveries made by American inventors and research institutions, commercialized by our companies, and protected and promoted by our patent laws have made our system the envy of the world.

The legislation I introduce today with Senator Hatch, and many others and from across the political spectrum, will keep America in its longstanding position at the pinnacle of innovation. This bill will establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs, while making sure no party's access to court is denied.

Innovation and economic development are not uniquely Democratic or Republican objectives. I have been working on the Patent Reform Act on a bipartisan basis with Senator Hatch and others for several years--and Senator Hatch and I worked on various patent issues for many years before that.

Last Congress, I introduced, along with Senator Hatch, the Patent Reform Act of 2007, which is the precursor to the legislation we introduce today. That bill was the subject of consideration and amendments over four weeks of mark-up sessions in the Senate Judiciary Committee. After the Judiciary Committee voted to approve the bill in July 2007, we continued to hold numerous meetings, briefings, and stakeholder roundtables--again, on a bipartisan basis.

The legislation we introduce today picks up where we left off in those discussions. We have made some changes from the Committee- approved bill in response to concerns we heard from groups ranging from labor unions to small inventors to manufacturers. We have removed the requirement that all patent applications be published 18 months after they are filed and we have removed the requirement for Applicant Quality Submissions. We have also adopted the House approach to improving the current inter partes reexamination process, rather than creating a new second window post-grant review.

Perhaps the most hotly debated topic in the patent reform debate last Congress was the damages provision. The reasonable royalty language in the bill we introduce today is identical to the language approved by the Judiciary Committee last Congress. While I strongly support this language, I am prepared to continue the conversation and debate from the last Congress in order to find the best language we can.

There have been several positive developments since the Committee voted to report the legislation in July 2007. Senator Specter has made constructive suggestions about a ``gate keeping'' role for the court in damage calculations. The Supreme Court's Quanta decision may offer a useful way of describing the truly inventive feature of a patent. There is much work to do on this provision and I am optimistic that by continuing to work together, we will find the right language.

During consideration of the Patent Reform Act of 2007 in Committee last Congress, I offered an amendment, which was adopted, to codify the inequitable conduct doctrine. Senator Hatch has asked that the provision be removed on introduction this year. I understand that the issue of inequitable conduct is very important to Senator Hatch, and I will work with him to address any statutory changes.

It has been more than 50 years since Congress significantly updated the patent system. In the decades since, our economy has changed dramatically. No longer is the economy defined only by assembly lines and brick-and-mortar production. We are living in the Information Age, and the products and processes that are being patented are changing as quickly as the times themselves.

A patent system developed for a 1952 economy, needs to be reconsidered in light of 21st century realities, while staying true to our constitutional imperative. The patent laws that were sufficiently robust for promoting innovation and economic development are now actually impeding growth, harming innovators and raising prices on consumers.

The array of voices heard in this debate--representing virtually all sectors of the economy and all interests in the patent system--have certainly not been uniform, but three major areas of concern with the current patent system can be distilled from their discussions.

First, there is significant concern that the U.S. Patent and Trademark Office, PTO, is issuing low quality patents. Patent examiners are facing a difficult task given the explosion in the number of applications and the increasing complexity of those applications. When Congress last overhauled the patent system in 1952, the PTO received approximately 60,000 patent applications; in 2006, it received 440,000. Clearly, this puts a strain on the system and understandably affects the quality of patents issued.

Second, the costs and uncertainty associated with patent litigation have escalated in recent years, and are creating an unbearable drag on innovation. Damage awards are inconsistent and too often fail to focus on the value of the invention to the infringing product. This disconnect and uncertainty is a problem that also leads to unreasonable posturing during licensing negotiations.

Third, as business and competition become more global, patent applicants are increasingly filing patent applications in other countries for protection of their inventions. The filing system in the United States, known as ``first-to-invent,'' differs from that in other patent-issuing jurisdictions, which have ``first-to-file'' systems. This causes confusion and inefficiencies for American companies and innovators.

The Patent Reform Act of 2009 promotes innovation, and will improve our economy, by addressing these impediments to growth. As the administration endeavors to guide the economy out of the recession, as payrolls shrink and the jobless rate rises, Congress cannot afford to sit idly by while innovation--the engine of our economy--is impeded by outdated laws.

Our legislation ensures that, in the Information Age, we have the legal landscape necessary for our innovators to flourish. It will improve the quality of patents and remove the ambiguity from the process of litigating patent claims, which will promote innovation stifled by the current system. As innovation is encouraged, and excessive litigation costs are removed, competition will increase and the consumer cost of products will fall. In this way, the bill directly benefits both creators and consumers of inventive products.

Patent reform is ultimately about economic development. It is about jobs, it is about innovation, and it is about consumers. All benefit under a patent system that reduces unnecessary costs, removes inefficiencies, and holds true to the vision of our Founders that Congress should establish a national policy that promotes the progress of science and the useful arts.

When Thomas Jefferson issued that first patent in 1790--a patent that went to a Vermonter--no one could have predicted how the American economy would develop and what changes would be needed for the law to keep pace, but the purpose then remains the purpose today--promoting progress.

As I said when I introduced the Patent Reform Act last Congress: If we are to maintain our position at the forefront of the world's economy, if we are to continue to lead the world in innovation and production, if we are to continue to benefit from the ideas of the most creative citizens, then we must have a patent system that produces high quality patents, that limits counterproductive litigation over those patents, and that makes the entire system more streamlined and efficient.

Now is the time to bolster our role as the world leader in innovation. Now is the time to create jobs at home. Now is the time for Congress to act on patent reform.

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

Mr. President, I rise to introduce with Senate Judiciary Committee chairman Patrick Leahy the Patent Reform Act of 2009, S. 515. I consider introduction of this bill to be a milestone in the progress we have made so far in the effort to reform our patent system--a system that has not been updated significantly since 1952. There is no doubt we have come a long way in our pursuit to accomplish comprehensive patent law reform. Reform is so vitally necessary to keep our nation competitive in our technologically advanced global economy, especially during these difficult economic times.

I have always believed that passing patent reform legislation would be a multi-Congress endeavor. The Hatch-Leahy patent bill, S. 3818, formally started the legislative process in 2006. We continued the momentum in the 110th Congress by introducing S. 1145, the Patent Reform Act of 2007. In June 2007, my colleagues and I on the Senate Judiciary Committee approved S. 1145 by a vote of 13-5. While I would have liked to see S. 1145 pass the full Senate, I believe the process already provided makes passage of the Patent Reform Act of 2009 even more likely this Congress.

S. 515 represents a bipartisan and bicameral commitment to streamline our nation's patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.

House Judiciary chairman John Conyers and ranking minority member Lamar Smith are true partners in this important legislation. For those who might say nothing has changed, I can attest that it has. Just look at the bill. We have listened to many of the concerns raised by stakeholders and have changed the legislative text accordingly.

Let me highlight some of the significant changes we have made to the bill.

For example, S. 515 does not contain an applicant quality submissions provision due to near uniform opposition we heard from the patent community about the burdens this would place on applicants.

Additionally, the Patent Reform Act of 2007 would have eliminated the current opt-out provision for publication of patent applications. Current law permits applicants to request upon filing that their application not be published at 18 months if a certification is made that the invention disclosed in the application has not and will not be the subject of an application filed in another country. Because of serious concerns raised by independent inventors and small entities, we have removed this provision from S. 515.

Patents may be challenged either in court or at the U.S. Patent and Trademark Office, USPTO. The current administrative review process at the USPTO is widely viewed as ineffective and inefficient. Accordingly, last year's bills proposed a process more like a court proceeding than the current re-examination process. Both bills had a 1-year window for challenges during which patents would not be presumed valid, and a patent could be invalidated by a ``preponderance of evidence'' against it. However, the Senate bill, S. 1145, added a second window during the life of the patent where only ``clear and convincing'' evidence could invalidate the patent. Most in the patent community prefer the post- grant review language as passed in the House because, instead of creating a ``second window,'' it improved upon the existing inter- partes reexamination. As such, S. 515 adopts the House approach to expanding interpartes, but includes ``public use or sale in the United States'' as a basis for challenging a patent. Further, our bill ensures that ex parte reexamination proceedings are maintained, which is an important tool for challenging patents that should not have issued.

With patent litigation costs escalating, the threat of enhanced damages can be quite substantial. For this reason, the Senate and House bills introduced in the 110th Congress narrowed the circumstances under which treble damages could be awarded for willful infringement of a patent. After introduction of the Patent Reform Act of 2007, the Federal Circuit issued an in banc decision, In re Seagate, which instituted an objective recklessness standard to prove willfulness. After considerable discussion with stakeholders in the patent community, we believe the Seagate decision is a positive improvement to the law and, therefore, have sought to incorporate correlating language into S. 515.

There are other changes we made to the Patent Reform Act of 2009, but I want to focus my remaining remarks on two key issues: how damages are awarded in infringement lawsuits and inequitable conduct reform.

I am aware of the concerns that some have raised about the damages provision contained in S. 1145. I have heard from some who are concerned that courts have allowed damages for infringement to be based on the market for an entire product, when all that was infringed is a minor component of the product. I have also heard from some who argue that the current language will severely limit the amount of damages an infringer has to pay, thereby encouraging infringing behavior.

The sponsors of the Patent Reform Act of 2009 all agree that we need to improve the damages provision. In crafting a fair damages provision, we can rely upon well-reasoned and persuasive case law, scholarship, and other texts. I am confident that we will achieve consensus language in this area, but make no mistake: it will take willing partners to craft a compromise that will not have deleterious affects on any one sector of our economy.

For years I have been arguing if we are serious about enacting comprehensive patent law reform then we must take steps to ensure that the inequitable conduct doctrine is applied in a manner consistent with its original purpose: to sanction true misconduct and to do so in a proportional and fair manner. Inequitable conduct reform is core to this bill, as it dictates how patents are prosecuted years before litigation. The inequitable conduct defense is frequently pled, rarely proven, and always drives up the cost of litigation tremendously.

Under current law, any perceived transgression of the patent owner is being painted as ``fraud.'' If an inequitable conduct claim wins, a valid patent will be held entirely void, and the infringer walks away without any liability. There is virtually no downside for the infringer to raise this type of attack. This is why inequitable conduct challenges are raised in nearly every patent case. It has become, in the words of the Federal Circuit, a ``plague'' on the patent system.

The development of a more objective and clearer inequitable conduct standard will remove the uncertainty and confusion that defines current patent litigation. We cannot settle for mere

codification of current practices. Chairman Leahy and Chairman Conyers both know of my strong interest in this area and have agreed to incorporate changes to the law. There is no doubt that inequitable conduct reform has the potential to single-handedly revolutionize the manner in which patent applications are prosecuted. Arguably, reform in this area will have the most favorable impact on patent quality and the ability for the USPTO to reduce its pendency--thereby fostering a strong and vibrant environment for all innovation and entrepreneurship.

Now more than ever, our industries need reassurance and predictability in order to move forward in these challenging times. I believe the Patent Reform Act of 2009 has the potential to complement all of the stimulatory efforts currently under way. Now is the time to act.

Mr. President, I am introducing today the proposed Veterans Rehabilitation and Training Improvements Act of 2009. This measure would improve the program of rehabilitation and training for veterans who suffer from service-connected disabilities by offering an increase in the amount of subsistence allowances, reimbursing certain incidental costs, and repealing the limit on the number of individuals who may be enrolled in a program of Independent Living services.

Under current law, veterans who are enrolled in a program of rehabilitation under Chapter 31 receive a monthly subsistence allowance. This, in addition to the payment of the costs of the program of rehabilitation, is intended to offer the veteran a means of paying for basic living expenses while pursuing their training or education.

With the enactment of the new Post 9-11 GI Bill last year, P.L. 110- 323, which adopted a tuition-and-fees plus a living allowance approach to the payment of benefits under the educational assistance program, I am concerned that there may be an inequity between the vocational rehabilitation and education programs and that individuals who would truly benefit from enrollment in a program of rehabilitation and employment under Chapter 31 will be tempted to enroll in the Chapter 33 education program in order to take advantage of the higher living allowance. Those who would make such an election might forgo valuable counseling, employment and placement, and other assistance from which they might benefit.

To address this concern, the measure I am introducing today would modify the Chapter 31 program by offering a subsistence allowance to enrollees equal to the national average for the Department of Defense's Basic Allowance for Housing, BAH, for members of the military at the E- 5 level, adjusted for marital status. This is similar, although not identical to, the approach of the new chapter 33 program which

adopted a regionalized BAH approach based on the address of the institution.

This is intended to help ensure that individuals who could best benefit from enrollment in the Chapter 31 program are not faced with a disincentive to do so.

With regard to the second issue, VA is permitted to pay certain costs associated with enrollment of an individual in a program of rehabilitation--for example, fees, equipment, and supplies. However, there are other costs that an individual might incur that are not covered by VA and these costs could represent a substantial barrier to the successful completion of a program. An example could be that of a single young mother with young children who--in order to attend classes--needs child care. Another example might be a veteran who lost both legs in service and needs a new suit in order to make the most favorable impression at the interview with a prospective employer.

The legislation I am introducing today would require VA to issue regulations providing for the reimbursement of incidental costs associated with obstacles that pose substantial barriers to successful completion of a program. I believe that this will substantially increase the ability of many individuals to finish their rehabilitation programs and be placed in rewarding jobs.

I also believe we need to repeal the cap on the number of individuals who may be enrolled in a program of Independent Living services under the Chapter 31 program. Current law provides that individuals for whom a determination is made that a program of rehabilitation leading to employment is not reasonably feasible may be eligible for enrollment in a program of independent living services which is designed to help the individual achieve a maximum level of independence in daily life. However, the number of veterans who in any one year may enroll in these programs is capped at 2,600.

Even though the VA has testified in the past that this enrollment cap does not present any problem for the effective conduct of the program, I remain concerned--despite the fact that last year Congress raised the cap from 2,500 to 2,600 in P.L. 110-389--that the effect of the cap is to put downward pressure on VA's enrollment of eligible veterans in this very important program. This is of particular concern when so many of today's returning servicemembers suffer from disabilities that may require extensive periods of rehabilitation and assistance in achieving independence in their daily lives that can result from such conditions as traumatic brain injury or PTSD.

Disabled veterans are transitioning from military service into an economy that is changing, challenging, and contracting at historic rates. My bill will give these veterans more of the help they need by increasing program flexibility and boosting the living stipend for disabled veterans undergoing rehabilitation.

While there will be costs associated with this legislation, the veterans who are served by the chapter 31 rehabilitation and employment program are the highest priority for our Nation--individuals who have incurred service-connected disabilities in service to the country. This truly is one of the costs of war that must be borne.

I look forward to working with my colleagues in moving this legislation through the Congress.

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

Mr. President, I am introducing today the proposed Veterans Rehabilitation and Training Improvements Act of 2009. This measure would improve the program of rehabilitation and training for veterans who suffer from service-connected disabilities by offering an increase in the amount of subsistence allowances, reimbursing certain incidental costs, and repealing the limit on the number of individuals who may be enrolled in a program of Independent Living services.

Under current law, veterans who are enrolled in a program of rehabilitation under Chapter 31 receive a monthly subsistence allowance. This, in addition to the payment of the costs of the program of rehabilitation, is intended to offer the veteran a means of paying for basic living expenses while pursuing their training or education.

With the enactment of the new Post 9-11 GI Bill last year, P.L. 110- 323, which adopted a tuition-and-fees plus a living allowance approach to the payment of benefits under the educational assistance program, I am concerned that there may be an inequity between the vocational rehabilitation and education programs and that individuals who would truly benefit from enrollment in a program of rehabilitation and employment under Chapter 31 will be tempted to enroll in the Chapter 33 education program in order to take advantage of the higher living allowance. Those who would make such an election might forgo valuable counseling, employment and placement, and other assistance from which they might benefit.

To address this concern, the measure I am introducing today would modify the Chapter 31 program by offering a subsistence allowance to enrollees equal to the national average for the Department of Defense's Basic Allowance for Housing, BAH, for members of the military at the E- 5 level, adjusted for marital status. This is similar, although not identical to, the approach of the new chapter 33 program which

adopted a regionalized BAH approach based on the address of the institution.

This is intended to help ensure that individuals who could best benefit from enrollment in the Chapter 31 program are not faced with a disincentive to do so.

With regard to the second issue, VA is permitted to pay certain costs associated with enrollment of an individual in a program of rehabilitation--for example, fees, equipment, and supplies. However, there are other costs that an individual might incur that are not covered by VA and these costs could represent a substantial barrier to the successful completion of a program. An example could be that of a single young mother with young children who--in order to attend classes--needs child care. Another example might be a veteran who lost both legs in service and needs a new suit in order to make the most favorable impression at the interview with a prospective employer.

The legislation I am introducing today would require VA to issue regulations providing for the reimbursement of incidental costs associated with obstacles that pose substantial barriers to successful completion of a program. I believe that this will substantially increase the ability of many individuals to finish their rehabilitation programs and be placed in rewarding jobs.

I also believe we need to repeal the cap on the number of individuals who may be enrolled in a program of Independent Living services under the Chapter 31 program. Current law provides that individuals for whom a determination is made that a program of rehabilitation leading to employment is not reasonably feasible may be eligible for enrollment in a program of independent living services which is designed to help the individual achieve a maximum level of independence in daily life. However, the number of veterans who in any one year may enroll in these programs is capped at 2,600.

Even though the VA has testified in the past that this enrollment cap does not present any problem for the effective conduct of the program, I remain concerned--despite the fact that last year Congress raised the cap from 2,500 to 2,600 in P.L. 110-389--that the effect of the cap is to put downward pressure on VA's enrollment of eligible veterans in this very important program. This is of particular concern when so many of today's returning servicemembers suffer from disabilities that may require extensive periods of rehabilitation and assistance in achieving independence in their daily lives that can result from such conditions as traumatic brain injury or PTSD.

Disabled veterans are transitioning from military service into an economy that is changing, challenging, and contracting at historic rates. My bill will give these veterans more of the help they need by increasing program flexibility and boosting the living stipend for disabled veterans undergoing rehabilitation.

While there will be costs associated with this legislation, the veterans who are served by the chapter 31 rehabilitation and employment program are the highest priority for our Nation--individuals who have incurred service-connected disabilities in service to the country. This truly is one of the costs of war that must be borne.

I look forward to working with my colleagues in moving this legislation through the Congress.

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

Mr. President, today I rise to introduce the FDA Food Safety Modernization Act.

When I introduced this bill in the last Congress, we were in the middle of one of the largest food-borne illness outbreaks in the history of our country. Nearly 1500 people fell sick last spring and summer because of Salmonella Saintpaul, leading to a Government investigation that pointed the finger first at tomatoes and then at jalapeno peppers in Texas before settling on Serrano peppers in Mexico. In the meantime, more people got sick and the tomato industry lost up to hundreds of millions of dollars.

Less than a year later, we find ourselves in the middle of yet another nationwide outbreak: peanut butter tainted with Salmonella, the second case of its kind in 2 years. There is not a day that goes by that we don't hear about another recalled peanut butter product or another person sick with Salmonella. More than 660 people have been sickened, half of them children. At least nine people are dead. Over 2,600 products have been recalled, in a recall that goes back to March 2005 and could continue for at least another couple of years, making this one of the biggest food recalls in our Nation's history.

Unfortunately, these problems seem to be par for the course. In the last couple of years we have seen Salmonella in our peppers and peanut butter and E. coli in our spinach. Our food safety problems do not just start and stop at home: we have also seen chemically tainted pet food, milk products, and seafood from China.

These problems are only the tip of the iceberg. Every year, more than 76 million Americans become sick because of a food-borne illness, 325,000 are hospitalized, and 5,000 die.

It is clear that the Food and Drug Administration, who regulates these foods and 80 percent of our food supply, including virtually all food imports, can not keep up. The agency is underfunded and overwhelmed. It operates under an obsolete, largely reactive 1938 law. Its food safety program has not kept up with the dramatic changes in our food system, and it does a poor job of preventing and responding to food safety problems. As a result, consumers suffer and so do businesses something we can never afford, but especially in these trying economic times.

Our food safety system is in crisis and it is time that we act. That's why Senator Gregg and I are introducing

the FDA Food Safety Modernization Act, a bipartisan bill that gives the FDA the new authorities and resources it needs to stop food safety problems before they start.

For the first time in history, our bill gives the FDA a mandate to inspect: to increase the inspections at all food facilities, including annual inspections of high risk facilities. It requires the food industry to have in place plans that address identified hazards with the right preventive measures. It requires all testing and sampling for regulatory purposes to be done by labs accredited by the FDA, and requires those results to be sent to the agency. It also enables the FDA to more effectively respond to an outbreak by giving the agency new authorities to order recalls, shut down tainted facilities, and access records.

This bill is proof that food safety is not a Democratic issue or a Republican one. Everyone eats. All Americans have a right to know that the food we buy for our families and our pets is safe. We should not have to worry about getting sick, or worse. If there's a problem, our Government should be able to catch it and fix it before people die.

I thank Senators Kennedy, Dodd, Klobuchar, Burr, Alexander, and Chambliss for joining me in this effort. I also want to thank the consumer, public health, and industry groups who have helped us craft a strong bill for their support: Consumer Federation of America, Center for Science in the Public Interest, Consumers Union, Trust for America's Health, Grocery Manufacturers of America, American Feed Industry Association, American Frozen Food Institute, Food Marketing Institute, National Fisheries Institute, and American Spice Trade Association.

This bill is a comprehensive, bipartisan effort that improves the FDA's ability to prevent, detect, and respond to food safety problems, whether this means Salmonella-tainted peanut butter from Georgia or melamine-spiked candy from China. It's the first step towards building a food safety system that is science and risk-based, accountable to consumers, more transparent, and focused on prevention. I urge my colleagues to support this bill.

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

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