Equal Access to Tax Planning Act

Mr. President, I ask unanimous consent to have printed in the Record materials concerning the America Invents Act that were distributed by the Republican Policy Committee last week. These consist of a legislative notice describing the bill that was brought to the Senate floor, and a summary of the Senate managers' amendment that was adopted on Tuesday.

Mr. President, I rise today to make a few comments about the present bill, which has now been retitled the ``America Invents Act.'' This bill is almost identical to the managers' amendment that was negotiated by Chairman Leahy and then-Ranking Member Sessions during the last Congress and announced in March 2010. I cosponsored and strongly supported that managers' amendment, which substantially addressed all of the concerns that Senators Feingold, Coburn, and I raised in our Minority Report to the 2009 committee report for the bill, Senate Report 111-18, at pages 53 through 61. As the bill was renegotiated in the fall of 2009 and early 2010, improvements and corrections were made throughout the bill, and a number of new provisions were added. I would like to take a moment to comment on some of those changes and additions.

In section 2(a) of the bill, the definition of ``effective filing date'' in section 100(i) has been modified in several ways. In subparagraph (A), the word ``actual'' is added before ``filing date.'' When the word ``filing date'' is used in current law, it is sometimes used to mean the actual filing date and sometimes used to mean the effective filing date. Since section 100 is a definitional section, it should be clear in its language, and thus the word ``actual'' is added in order to avoid a lingering ambiguity. Also, the language of subparagraph (B) is streamlined to clarify that a patent gets the benefit or priority of an earlier application if it is entitled to such benefit or priority as to the invention in question under the relevant code sections, which require satisfaction of the requirements of section 112(a), a specific reference to the prior application, and copendency.

The new language makes it clear that the definition of effective- filing date does not create new rules for entitlement to priority or the benefit of an earlier filing date. Rather, the definition simply incorporates the rules created by existing code sections. Also, since those rules expressly require an enabling disclosure, there is no need to separately require such disclosure in this definition, and thus the reference at the end of subparagraph (B) to the first paragraph of section 112 that appeared in earlier versions of the bill is dropped. Keeping that citation would have created a negative implication that unless such a requirement of section 120 was expressly incorporated into the definition of effective-filing date, then such requirement need not be satisfied in order to secure the benefit of an earlier effective-filing date.

It should be noted that, for purposes of subparagraph (A) of section 100(i)(1), a patent or application for patent contains a claim to an invention even if the claim to the particular invention was added via an amendment after the application was filed. Of course, such an amendment may not introduce new matter into the application--it may only claim that which was disclosed in the application.

Finally, new section 100(i)(2) of title 35 governs the effective date of reissued patents. Consistent with section 251, this new paragraph effectively treats the reissue as an amendment to the patent, which is itself treated as if it were a still-pending application. It bears emphasis that the first paragraph of section 251, which is designated as subsection (a) by this bill, bars the introduction of new matter in an application for reissue. Moreover, paragraph (3) of section 251, now designated as section 251(c), makes the rules governing applications generally applicable to reissues. A reissue is treated as an amendment to the patent, and the last sentence of section 132(a) bars the introduction of new matter in an amendment. See In re Rasmussen, 650 F.2d 1212, 1214-15, CCPA 1981. Thus a claim that relies for its support on new matter introduced in a reissue would be invalid.

Section 2(b) of the bill recodifies section 102 of title 35. In the present bill, this recodification is reorganized by

consolidating all exceptions to the definition of prior art in section 102(b)--and excluding from subsection (b) provisions that do not define exceptions to prior art, such as the CREATE Act and the definition of the effective date of patents and applications cited as prior art. Thus what previously appeared as section 102(a)(1)(B) in earlier versions of the bill is now 102(b)(1)(A), and former paragraphs (3) and (4) of subsection (b) are now subsections (c) and (d), respectively.

Also, the wording of subparagraph (B) of section 102(b)(2), which appeared at the same place in earlier versions of the bill, is changed so that it tracks the wording of subparagraph (B) of subsection (b)(1). These two subparagraph (B)s are intended to operate in the same way, and their previous differences in wording, although not substantive, tended to create an implication that they were intended to operate in different ways.

Under the first subparagraph (B), at section 102(b)(1)(B), if an inventor publicly discloses his invention, no subsequent disclosure made by anyone, regardless of whether the subsequent discloser obtained the subject matter from the inventor, will constitute prior art against the inventor's subsequent application for patent in the United States. The parallel provision at section 102(b)(2)(B) applies the same rule to subsequent applications: if the inventor discloses his invention, a subsequently filed application by another will not constitute prior art against the inventor's later-filed application for patent in the United States, even if the other filer did not obtain the subject matter from the first-disclosing inventor. And of course, the inventor's earlier disclosure will constitute prior art that invalidates the other filer's subsequent application.

In other words, under the regime of the two subparagraph (B)s, an inventor's disclosure of his invention to the public not only invalidates anyone else's subsequently filed application, but no one else's subsequent disclosure or filing of an application during the 1- year grace period will constitute prior art against that inventor's application. The bill thus effectively creates a ``first to publish'' rule that guarantees patent rights in the United States to whoever discloses the invention to the public first.

Of course, until the Europeans and the Japanese adopt a more substantial grace period, an inventor's pre-filing disclosure will prevent patenting in Europe and Japan. An inventor who is concerned about protecting his invention from theft, but who also wants to preserve his rights overseas, can instead file a provisional application in the United States. This inexpensive alternative protects the inventor's rights both in the United States and abroad.

Another change that this bill makes to chapter 10 is that the CREATE Act, formerly at section 103(c) of title 35, has been moved to section 102(c). The present bill departs from earlier versions of the bill by giving the CREATE Act is own subsection and making several clarifying and technical changes. In particular, the citation at the end of the chapeau is made more specific, and in paragraph (1) the words ``was developed'' are added because subject matter is not always ``made,'' but is always ``developed.'' Also in the same paragraph, the reference to ``parties'' is replaced with ``1 or more parties'', to further clarify that not all parties to the joint research agreement need have participated in developing the prior art or making the invention. Finally, as noted previously, the definition of ``joint research agreement'' is moved to section 100, which contains other definitions relevant to CREATE. As section 2(b)(2) of this bill notes, these changes are made with the same ``intent'' to promote joint-research activities that animated the CREATE Act. None of the changes in this legislation alter the meaning of the original law.

The present bill's new subsection 102(d) of title 35 makes several changes to earlier bills' version of this provision. Specifically, the chapeau of this subsection, which defines the effective date of patents and applications cited as prior art, is modified in the first clause by expressly stating the purpose of this subsection, and by otherwise clarifying the language employed. In paragraph (1), a clause is added at the outset to make clear that the paragraph applies only if paragraph (2) does not apply. Paragraph (2) is unmodified save for the nonsubstantive addition of a comma.

Though the language of section 102(d)(2) remains unchanged from earlier versions of the bill, that language deserves some comment. Paragraph (2) is intended to overrule what remains of In re Wertheim, 646 F.2d 527 (CCPA 1981), which appeared to hold that only an application that could have become a patent on the day that it was filed can constitute prior art against another application or patent. See id. at 537, noting that:

If, for example, the PTO wishes to utilize against an

applicant a part of that patent disclosure found in an

application filed earlier than the date of the application

which became the patent, it must demonstrate that the

earlier-filed application contains sections 120/112 support

for the invention claimed in the reference patent. For if a

patent could not theoretically have issued the day the

application was filed, it is not entitled to be used against

another as `secret prior art,' the rationale of Milburn being

inapplicable.

Wertheim, however, was already almost completely overruled by the American Inventors Protection Act of 1999, Public Law 106-113, which, by making any published application prior art, effectively displaced Wertheim's requirement that the application have been capable of becoming a patent on the day that it was filed. Two recent BPAI decisions, Ex parte Yamaguchi, 88 U.S.P.Q.2d 1606, BPAI 2008, and Ex parte Jo Anne Robbins, 2009 WL 3490271, BPAI October 26, 2009, confirm this overruling, holding that any application that is ultimately published is prior art as of its filing date, and that provisional applications--which typically cannot become patents as filed--also are prior art. See Robbins at page *4, noting that ``[i]n our opinion, a published patent application which is statutorily destined to be published constitutes prior art for all that it discloses on its earliest filing date,'' and Yamaguchi at page 9, noting that ``a provisional application--like a regular utility application-- constitutes prior art for all that it teaches,'' and the same case at page 13, Judge Torczon concurring that ``[i]f [the majority] is correct, In re Wertheim is no longer tenable authority.'' Moreover, these BPAI decisions' holding that a patent has a patent-defeating effect as of the filing date of the provisional application to which it claims priority was recently affirmed by the Federal Circuit in In re Giacomini, 612 F.3d 1380 (Fed. Cir. 2010).

The caselaw also teaches that parent applications to the published application set the effective date of the prior art if they describe the invention and the invention is enabled before the filing of the patent under review, even if that prior-art description, standing alone, may not be adequate to show enablement. This point is illustrated by Application of Samour, 571 F.2d 559, CCPA 1978, which holds that prior art must be enabled before the effective filing date of the application or patent under review, but this enablement need not be disclosed at the same place and time as the primary reference relied on as prior art--and can even come later than the primary reference, so long as it still comes before the effective-filing date of the application under review. Samour at page 563, notes that:

we do not believe that a reference showing that a method of

preparing the claimed subject matter would have been known

by, or would have been obvious to, one of ordinary skill in

the pertinent art, must antedate the primary reference. The

critical issue under 35 U.S.C. Sec. 102(b) is whether the

claimed subject matter was in possession of the public more

than one year prior to applicant's filing date, not whether

the evidence showing such possession came before or after the

date of the primary reference.

Technically, In re Wertheim still controls the prior-art effect of the limited universe of applications that are not published before they are patented, but the Office's examination guidelines ignore even this vestigial effect, and extend prior-art effect to all prior applications that describe an invention as of the date of their filing. MPEP 21360.03, part IV, which notes that:

For prior art purposes, a U.S. patent or patent application

publication that claims the benefit of an earlier filing date

under 35 U.S.C. 120 of a prior nonprovisional application

would be accorded the earlier filing date as its prior art

date under 35 U.S.C. 102(e), provided the earlier-filed

application properly supports the subject matter relied upon

in any rejection in compliance with 35 U.S.C. Sec. 112, first

paragraph.

A prior-art parent application, however, must be copendent, have some continuity of disclosure, and be specifically referred to in the patent or published application. The continuous disclosure must be a description of the subject matter that is relied on as prior art. That description can become narrower in the intervening applications. But so long as there is still some description of the subject matter in the intervening applications, the Office can rely on an earlier application's fuller description as prior art.

The language of paragraph (2) is somewhat indirect in its imposition of these requirements. They are mostly incorporated through the paragraph's mandate that the prior-art application be ``entitled to claim * * * priority or benefit'' under section 120 et al. In section 100(i), which defines the effective-filing date of the patent under review, the patent must be entitled to the priority or benefit itself under the relevant sections. Here again in section 102(d), however, the application need only be entitled to claim the benefit or priority under those sections. This difference in language, which offers an excellent example of why people hate lawyers, distinguishes between the core requirement of section 120 et al.--that the application include an enabling disclosure--and the ministerial requirements of that section-- that the application be copendent and specifically referenced. In effect, an application that meets the ministerial requirements of copendency and specific reference is entitled to claim the benefit or priority, but only an application that also offers an enabling disclosure is actually entitled to the benefit or priority itself. The language of paragraph (2) also expressly requires that the earliest application ``describe'' the subject matter, and the Office has traditionally required that this disclosure be continuous, as discussed above.

Paragraph (2) can be criticized as codifying current BPAI common law and examination practice without fully describing that practice. However, a fully descriptive codification of the principles codified therein would be unduly long, requiring repetition of the already somewhat inelegant language of section 120.

Another aspect of the bill's changes to current section 102 also merits special mention. New section 102(a)(1) makes two important changes to the definition of non-patent prior art. First, it lifts current law's geographic limits on what uses, knowledge, or sales constitute prior art. And second, it limits all non-patent prior art to that which is available to the public. This latter change is clearly identified in Senate Report 110-259, the report for S. 1145, the predecessor to this bill in the 110th Congress. The words ``otherwise available to the public'' were added to section 102(a)(1) during that Congress's Judiciary Committee mark up of the bill. The word ``otherwise'' makes clear that the preceding clauses describe things that are of the same quality or nature as the final clause--that is, although different categories of prior art are listed, all of them are limited to that which makes the invention ``available to the public.'' As the committee report notes at page 9, ``the phrase `available to the public' is added to clarify the broad scope of relevant prior art, as well as to emphasize the fact that it [i.e., the relevant prior art] must be publicly available.'' In other words, as the report notes, ``[p]rior art will be measured from the filing date of the application and will include all art that publicly exists prior to the filing date, other than disclosures by the inventor within one year of filing.''

The Committee's understanding of the effect of adding the words ``or otherwise available to the public'' is confirmed by judicial construction of this phraseology. Courts have consistently found that when the words ``or otherwise'' or ``or other'' are used to add a modifier at the end of a string of clauses, the modifier thus added restricts the meaning of the preceding clauses. Strom v. Goldman, Sachs & Co., 202 F.3d 138, 146-47, Second Cir. 1999, states that:

The position of the phrase `or any other equitable relief'

in the sentence in which it appears indicates that it

modifies one or both of the two specific remedies referred to

just before it in the same sentence * * * [T]he use of the

words `other' immediately after the reference to back pay and

before `equitable relief' demonstrated Congress'

understanding that the back pay remedy is equitable in

nature.

Strom construed the phrase ``may include * * * back pay, * * * or any other equitable relief.'' Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 325, S.D.N.Y. 2000, holds that:

The statute makes it unlawful to offer, provide or

otherwise traffic in described technology. To `traffic' in

something is to engage in dealings in it, conduct that

necessarily involves awareness of the nature of the subject

of the trafficking. * * * The phrase `or otherwise traffic

in' modifies and gives meaning to the words `offer' and

`provide.' In consequence, the anti-trafficking provision of

the DMCA is implicated where one presents, holds out or makes

a circumvention technology or device available, knowing its

nature, for the purpose of allowing others to acquire it.

Reimerdes construed the phrase ``offer to the public, provide, or otherwise traffic in any technology.'' Williamson v. Southern Regional Council, Inc., 223 Ga. 179, 184, 154 S.E.2d 21, 25 (Ga. 1967), noted that:

The words `carrying on propaganda' in this statute must be

construed in connection with the words following it, `or

otherwise attempting to influence legislation.' The use of

the word `otherwise' indicates that `carrying on propaganda'

relates to `attempting to influence legislation.'

Williamson construed the phrase ``carrying on propaganda, or otherwise attempting to influence legislation.''

In other words, the Judiciary Committee's design in adding the 2007 amendment to section 102(a)(1), as expressed in the relevant committee report, is consistent with the unanimous judicial construction of the same turn of phrase. It appears that every court that has considered this question agrees with the committee's understanding of the meaning of this language.

Moreover, the fact that the clause ``or otherwise available to the public'' is set off from its preceding clauses by a comma confirms that it applies to both ``public use'' and ``on sale.'' Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1336, Fed. Cir. 2008, notes that ``when a modifier is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents.'' Thus new section 102(a)(1) imposes a public-availability standard on the definition of all prior art enumerated by the bill--an understanding on which the remainder of the bill is predicated.

Whether an invention has been made available to the public is the same inquiry that is undertaken under existing law to determine whether a document has become publicly accessible, but is conducted in a more generalized manner to account for disclosures of information that are not in the form of documents.

A document is publicly accessible if it has been

disseminated or otherwise made available to the extent that

persons interested and ordinarily skilled in the subject

matter or art, exercising reasonable diligence, can locate it

and recognize and comprehend therefrom the essentials of the

claimed invention without need of further research or

experimentation.

That is a quotation from Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319, 1333, Fed. Cir. 2009. That decision also states that ``[i]n general, accessibility goes to the issue of whether interested members of the relevant public could obtain the information if they wanted to.'' See also In re Lister, 583 F.3d 1307, Fed. Cir. 2009.

Another important aspect of public availability or accessibility is the doctrine of inherency. ``Under the doctrine of inherency, if an element is not expressly disclosed in a prior art reference, the reference will still be deemed to anticipate a subsequent claim if the missing element is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill,'' a point noted in Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1380, Fed. Cir. 2002. This doctrine applies to products sold to the public as well as published references. Thus once a product is sold on the market, any invention that is inherent to the product becomes publicly available prior art and cannot be patented.

The present bill's elimination of the patent forfeiture doctrines in favor of a general public availability standard also limits and reconciles the various purposes that previously have been ascribed to section 102's definition of prior art. Current 102(b), which imposes the forfeiture doctrines, has been described as being ``primarily concerned

with the policy that encourages an inventor to enter the patent system promptly,'' a quotation from Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1370, Fed. Cir. 1998. And the ``overriding concern of the on-sale bar'' has been described as ``an inventor's attempt to commercialize his invention beyond the statutory term,'' as stated in Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 1323, Fed. Cir. 2002.

By adopting the first-to-file system, however, the present bill already provides ample incentive for an inventor to enter the patent system promptly. There is no need to also require forfeiture of patents simply because the inventor has made some use of the invention that has not made the invention available to the public. And the current on-sale bar imposes penalties not demanded by any legitimate public interest. There is no reason to fear ``commercialization'' that merely consists of a secret sale or offer for sale but that does not operate to disclose the invention to the public.

The current forfeiture doctrines have become traps for unwary inventors and impose extreme results to no real purpose. In Beachcombers International, Inc. v. Wildewood Creative Products, Inc., 31 F.3d 1154, 1159-60, Fed. Cir. 1994, for example, an improved kaleidoscope was held to be ``in public use'' within the meaning of current section 102(b) because the inventor had demonstrated the device to several guests at a party in her own home. And in JumpSport, Inc. v. Jumpking, Inc., 2006 WL 2034498, Fed. Cir. July 21, 2006, the court of appeals affirmed the forfeiture of a patent for a trampoline enclosure on the ground that the enclosure had been in ``public use'' because neighbors had been allowed to use it in the inventor's back yard. Obviously, neither of these uses made the inventions accessible to persons interested and skilled in the subject matter. The only effect of rulings like these is to create heavy discovery costs in every patent case, and to punish small inventors who are unaware of the pitfalls of the current definition of prior art.

The present bill's new section 102(a) precludes extreme results such as these and eliminates the use of the definition of prior art to pursue varied goals such as encouraging prompt filing or limiting commercialization. Instead, the new definition of prior art will serve only one purpose: ``to prevent the withdrawal by an inventor of that which was already in the possession of the public,'' as noted in Bruckelmyer v. Ground Heaters, Inc., 335 F.3d 1374, 1378, Fed. Cir. 2006. The new definition is ``grounded on the principle that once an invention is in the public domain, it is no longer patentable by anyone,'' as stated in SRI International, Inc. v. Internet Security Systems, Inc., 511 F.3d 1186, 1194, Fed. Cir. 2008.

The present definition thus abrogates the rule announced in Egbert v. Lippman, 104 U.S. 333, 336 (1881), one of the more unusual patent cases to come before the Supreme Court. That case held that:

whether the use of an invention is public or private does not

necessarily depend upon the number of persons to whom its use

is known. If an inventor, having made his device, gives or

sells it to another, to be used by the donee or vendee,

without limitation or restriction, or injunction of secrecy,

and it is so used, such use is public, even though the use

and knowledge of the use may be confined to one person.

Egbert v. Lippman is another case whose result can fairly be characterized as extreme. The invention there was an improved corset spring. The evidence showed only that the inventor had given the improved corset spring to one lady friend, who gave it to no other, and who used it in a corset, which of course was worn under her dress. The U.S. Supreme Court deemed this to be a ``public use'' of the invention within the meaning of section 102(b).

Justice Miller dissented. He began by noting that the word ``public'' in section 102(b) is ``an important member of the sentence.'' Justice Miller went on to conclude:

A private use with consent, which could lead to no copy or

reproduction of the machine, which taught the nature of the

invention to no one but the party to whom such consent was

given, which left the public at large as ignorant of this as

it was before the author's discovery, was no abandonment to

the public, and did not defeat his claim for a patent. If the

little steep spring inserted in a single pair of corsets, and

used by only one woman, covered by her outer-clothing, and in

a position always withheld from public observation, is a

public use of that piece of steel, I am at a loss to know the

line between a private and a public use.

In this bill's revisions to section 102, vindication has finally come to Justice Miller, albeit 130 years late.

I emphasize these points about the bill's imposition of a general public availability standard and its elimination of secret prior art because they are no small matter. A contrary construction of section 102(a)(1), which allowed private and non-disclosing uses and sales to constitute invalidating prior art, would be fairly disastrous for the U.S. patent system. First, the bill's new post-grant review, in which any validity challenge can be raised, would be utterly unmanageable if the validity of all patents subject to review under the new system continued to depend on discovery-intensive searches for secret offers for sale and non-disclosing uses by third parties. Only patents issued under the new prior-art rules can be efficiently reviewed under chapter 32.

Second, a general public-availability standard is a necessary accompaniment to this bill's elimination of geographic restrictions on the definition of prior art. As unwieldy as the current rules may be, at least those rules allow only those secret sales and private third- party uses that occur in the United States to constitute prior art. Under the new regime, however, sales and uses occurring overseas will also constitute prior art. A sale or use that discloses an invention to the public is relatively hard to falsify. If the invention truly was made available to the public by sale or use, independent validation of that sale or use should be readily available. By contrast, the existence of a secret offer for sale, or a nondisclosing third-party use, largely will turn on the affidavits or statements of the parties to such an occurrence. Unfortunately, some foreign countries continue to have weak business ethics and few scruples about bending the rules to favor domestic interests over foreign competitors. A system that allowed foreign interests to invalidate a U.S. patent simply by securing statements from individuals that a secret offer for sale or non-disclosing third-party use of the invention had occurred in a foreign country would place U.S. inventors at grave risk of having their inventions stolen through fraud. That is not a risk that Congress is willing to accept.

In section 2(c), the present bill, for clarity's sake, changes the previous bills' recodification of section 103 of title 35 by replacing the word ``though'' with ``, notwithstanding that''. The modified text reflects more conventional English usage. Also, in both the present bill and earlier versions, former subsection (b) of section 103 has been dropped, since it has already been subsumed in caselaw. And subsection (c), the CREATE Act, has been moved to subsection (d) of section 102.

In section 2(e) of the present bill, an effective date is added to the repeal of statutory invention registrations. SIRs are needed only so long as interferences exist. The bill repeals the authority to initiate interferences 18 months after the date of enactment. The added effective-date language also repeals SIRs 18 months after enactment, making clear that preexisting SIRs will remain effective for purposes of pending interferences, which may continue under this bill.

Section 2(e)(2) of the bill strikes the citation to section 115 from section 111(b)(8)'s enumeration of application requirements that do not apply to provisionals. This conforming change is made because, in section 3 of the bill, section 115 itself has been amended so that it only applies to nonprovisionals. In other words, there is no longer any need for section 111(b)(8) to except out the oath requirement because that requirement no longer extends to provisionals. There is no need for an exception to a requirement that does not apply.

Sections 2(h) and (i) of the present bill make a number of changes to the previous bills' treatment of remedies for derivation. These changes are made largely at the Patent Office's suggestion. In particular, the new section 135 proceeding is simplified, the Office is given authority to implement the proceeding through regulations, the Office is permitted to stay a derivation proceeding pending an ex parte

reexamintion, IPR, or PGR for the earlier-filed patent, and the Office is permitted but not required to institute a proceeding if the Office finds substantial evidence of derivation. In lieu of a section 135 proceeding, parties will be allowed to challenge a derived patent through a civil action under a revised section 291.

New section 2(k) of the bill eliminates the qui tam remedy for false marking, while allowing a party that has suffered a competitive injury as a result of such marking to seek compensatory damages. Section 292 of title 35 prohibits false patent marking and imposes a penalty of $500 for each such offense. Under current law, subsection (b) allows ``any person'' to sue for the penalty, and requires only that one half of the proceeds of the suit shall go to the United States. Current subsection (b) is, in effect, a qui tam remedy for false marking, but without any of the protections and government oversight that normally accompany qui tam actions.

The changes made by section 2(k) of the bill would allow the United States to continue to seek the $500-per-article fine, and would allow competitors to recover in relation to actual injuries that they have suffered as a result of false marking, but would eliminate litigation initiated by unrelated, private third parties.

In recent years, patent attorneys have begun to target manufacturers of high-volume consumer products with section 292(b) actions. Since the fine of up to $500 is assessed for each article that is falsely marked, such litigants have an incentive to target products that are sold in high volume. Though one might assume that section 292 is targeted at parties that assert fictitious patents in order to deter competitors, such a scenario is almost wholly unknown to false-marking litigation. False-marking suits are almost always based on allegations that a valid patent that did cover the product has expired, but the manufacturer continued to sell products stamped with the patent, or allegations that an existing patent used to mark products is invalid or unenforceable, or that an existing and valid patent's claims should not be construed to cover the product in question.

Indeed, a recent survey of such suits found that a large majority involved valid patents that covered the products in question but had simply expired. For many products, it is difficult and expensive to change a mold or other means by which a product is marked as patented, and marked products continue to circulate in commerce for some time after the patent expires. It is doubtful that the Congress that originally enacted this section anticipated that it would force manufacturers to immediately remove marked products from commerce once the patent expired, given that the expense to manufacturers of doing so will generally greatly outweigh any conceivable harm of allowing such products to continue to circulate in commerce.

Indeed, it is not entirely clear how consumers would suffer any tangible harm from false marking that is distinct from that suffered when competitors are deterred from entering a market. Patent marking's primary purpose is to inform competitors, not consumers, that a product is patented. I doubt that consumers would take any interest, for example, in whether a disposable plastic cup is subject to a patent, to take one case recently decided by the courts. Even less clear is how the consumer would be harmed by such marking, absent a deterrence of competition. Current section 292(b) creates an incentive to litigate over false marking that is far out of proportion to the extent of any harm actually suffered or the culpability of a manufacturer's conduct.

To the extent that false patent marking deters competition, the bill's revised section 292(b) allows those competitors to sue for relief. This remedy should be more than adequate to deter false marking that harms competition. And to the extent that false marking somehow harms the public in a manner distinct from any injury to competitors and competition, revised section 292(a) would allow the United States to seek relief on behalf of the public. The Justice Department can be expected to be more judicious in its use of this remedy than is a private qui tam litigant seeking recovery that will benefit him personally. These revisions to section 292 should restore some equilibrium to this field of litigation.

Finally, because the Federal Circuit's recent decision in Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295, Fed Cir. 2009, appears to have created a surge in false-marking qui tam litigation, the changes made by paragraph (1) of section 2(k) of the bill are made fully retroactive by paragraph (2). Because the courts have had difficulty properly construing effective-date language in recent years, paragraph (2) employs the language of section 7(b) of Public Law 109-366, the Military Commissions Act of 2006, which recently was given an authoritative construction in Boumediene v. Bush, 476 F.3d 981, 987, D.C. Cir. 2007. As that court noted when construing effective-date language identical to that of section 2(k)(2):

Section 7(b) could not be clearer. It states that ``the

amendment made by subsection (a)''--which repeals habeas

jurisdiction--applies to ``all cases, without exception''

relating to any aspect of detention. It is almost as if the

proponents of these words were slamming their fists on the

table shouting ``When we say `all,' we mean all--without

exception!''

It is anticipated that courts will find the same clarity in the language of section 2(k)(2), and will apply the revised section 292(b) to cases pending at any level of appeal or review.

Section 2(l) of the present bill modifies the statute of limitations for initiating a proceeding to exclude an attorney from practice before the Office. Under this provision, a section 32 proceeding must be initiated either within 10 years of when the underlying misconduct occurred, or within 1 year of when the misconduct is reported to that section of PTO charged with conducting section 32 proceedings, whichever is earlier.

It is not entirely clear how the time limitation applies under present law. A recent D.C. Circuit case, 3M v. Browner, 17 F.3d 1461 D.C. Cir. 1994, effectively makes the 5-year statute of limitations that generally applies to enforcement of civil penalties, at 28 U.S.C. Sec. 2462, run from the date when a violation occurred, rather than from the date when the enforcement agency first learned of the violation or reasonably could have learned of it. A recent Federal Circuit case, Sheinbein v. Dudas, 465 F.3d 493, 496, Fed. Cir. 2006, applies the section 2462 5-year limitation to section 32 proceedings, and applies 3M v. Browner's general rule, as described by Sheinbein, that ``[a] claim normally accrues when the factual and legal prerequisites for filing suit are in place.'' However, another court case, S.E.C. v. Koenig, 557 F.3d 736, 739, 7th Cir. 2009, has recently held that when a fraud has occurred, section 2462 only runs from when the fraud ``could have been discovered by a person exercising reasonable diligence.''

Although the Federal Circuit appears to be inclined to follow 3M v. Browner, it is not entirely clear that it would reject Koenig's exception for cases of fraud, Koenig having been decided subsequently to Sheinbein. In any event, neither rule would be entirely satisfactory for section 32 proceedings. On the one hand, a strict five-year statute of limitations that runs from when the misconduct occurred, rather than from when it reasonably could have been discovered, would appear to preclude a section 32 proceeding for a significant number of cases of serious misconduct, since prosecution misconduct often is not discovered until a patent is enforced. On the other hand, a fraud exception that effectively tolls the statute of limitations until the fraud reasonably could have been discovered would be both overinclusive and underinclusive. Such tolling could allow a section 32 proceeding to be commenced more than two decades after the attorney's misconduct occurred. This is well beyond the time period during which individuals can reasonably be expected to maintain an accurate recollection of events and motivations. And yet, a fraud exception would also be underinclusive, since there is a substantial range of misconduct that PTO should want to sanction that does not rise to the level of fraud, which requires reliance on the perpetrator's misrepresentations.

Section 2(1) of the bill adopts neither 3M v. Browner nor Koenig's approach, but instead imposes an outward limit of 10 years from the occurrence of the misconduct for the initiation of a section 32 proceeding. A 10-year limit

would appear to allow a proceeding for the vast bulk of misconduct that is discovered, while also staying within the limits of what attorneys can reasonably be expected to remember.

Paragraph (2) of section 2(l) requires the Office to report to Congress every two years on incidents of misconduct that it becomes aware of and would have investigated but for the 10 year limit. By providing a description of the character and apparent seriousness of such incidents, these reports will alert a future Congress if there is a need to revisit the 10-year limit. If the number and seriousness of such incidents is substantial enough, it may outweigh the interest in repose with regard to such matters.

Section 2(m) of the present bill requires the Small Business Administration to report to Congress on the expected impact of the first-to-file system on small businesses. On the one hand, some parties have suggested that the first-to-file system will be relatively burdensome for small businesses because it will require patent applicants to file their applications earlier, and will require that more applications be filed for a complex invention. On the other hand, others have suggested that the first-to-file system will be far simpler and cleaner to administer, that the ability to file provisional applications mitigates the burden of filing earlier, and that by inducing American patent applicants to file earlier, the first-to-file system is more likely to result in American patents that are valid and have priority elsewhere in the industrialized world.

Under current law, even if an American small business or independent inventor is legally sophisticated enough to maintain the type of third- party validation that will preserve his priority under the first-to- invent system, if that American inventor relies on first-to-invent rules to delay filing his application, he runs a serious risk that someone in another country will file an application for the same invention before the American does. Because the rest of the world uses the first-to-file system, even if the American inventor can prove that he was the first to have possession of the invention, the foreign filer would obtain the patent rights to the invention everywhere outside of the United States. In today's world, patent rights in Europe and Asia are valuable and important and cannot be ignored.

Section 2(n) of the bill requires the Director to report on the desirability of authorizing prior-user rights, particularly in light of the adoption of a first-to-file system.

In section 2(o) of the bill, the time for implementing the first-to- file system has been moved to 18 months, so that Congress might have an opportunity to act on the conclusions or recommendations of the reports required by subsections (m) and (n) before first-to-file rules are implemented.

Subsection (o) generally adopts the Office's preferred approach to transitioning to the first-to-file system. Under this approach, if an application contains or contained a claim to an invention with an effective-filing date that is 18 months after the date of enactment of the Act, the entire application is subject to the first-to-file regime. As a practical matter, this allows applicants to flip their applications forward into the first-to-file system, but prevents them from flipping backward into the first-to-invent universe once they are already subject to first-to-file rules.

New section 100(i)(2) of title 35 ensures that reissues of first-to- invent patents will remain subject to first-to-invent rules. Also, continuations of first-to-invent applications that do not introduce new matter will remain subject to first-to-invent rules. This last rule is important because if a continuation filed 18 months after the enactment of the Act were automatically subject to first-to-file rules, even if it introduced no new matter, the Office likely would see a flood of continuation filings on the eve of the first-to-file effective date. Under subsection (o), an applicant who wants to add to his disclosure after this section's 18-month effective date can choose to pull the whole invention into the first-to-file universe by including the new disclosure in a continuation of his pending first-to-invent application, or he can choose to keep the pending application in the first-to-file world by filing the new disclosure as a separate invention.

Paragraph (2) of subsection (o) provides a remedy in situations in which interfering patents are issued, one of which remains subject to first-to-invent rules, and the other of which was filed earlier but has a later date of conception and has transitioned into the first-to-file system. Paragraph (2) subjects the latter patent to the first-to-invent rule, and allows the other patent owner and even third parties to seek invalidation of that later-conceived interfering patent on that basis.

In section 3(a) of the present bill, the language of section 115 of title 35, the inventor's oath requirement, has been tidied up from that appearing in earlier versions of the bill. A grammatical error is corrected, an unnecessary parenthetical is struck, and stylistic changes are made.

In the new section 115(g), a paragraph (2) has been added that allows the Director to require an applicant claiming the benefit of an earlier-filed application to include copies of previous inventor's oaths used in those applications. The Office cannot begin examining an application until it knows who those inventors are, since their identity determines which prior art counts as prior art against the claimed invention. However, a later-filed application is not currently required to name inventors. Such information is included in an application data sheet, but such data sheets are not always filed--the requirement is not statutory. Moreover, a later-filed application often will cite to multiple prior applications under section 120, each of which may list several inventors. Thus unless the Office can require the applicant to identify which oath or other statement applies to the later-filed application, the Office may not be able to figure out who the inventor is for that later application.

In new section 115(h)(2), the present bill replaces the word ``under'' with ``meeting the requirements of'' in order to conform to the formulation used later in the same sentence.

In section 3(a)(3) of the bill, the changes to section 111(a) are modified to reflect that either an oath or declaration may be submitted.

In section 3(b), the present bill adds a new paragraph (2) that modifies section 251 to allow an assignee who applied for a patent to also seek broadening reissue of the patent within two years of its issue. Notwithstanding the language of the fourth paragraph of current section 251, the Office currently does allow assignees to seek broadening reissue, so long as the inventor does not oppose the reissue. The Office views such unopposed applications for reissue as effectively being made ``in the name'' of the inventor. Expanding an assignee's right to seek broadening reissue is consistent with the bill's changes to sections 115 and 118, which expand assignees' rights by allowing assignees to apply for a patent against the inventor's wishes. If an assignee exercises his right to apply for a patent against the inventor's wishes, there is no reason not to allow the same assignee to also seek a broadening reissue within the section 251 time limits.

Turning to the issue of damages, at the end of the 110th Congress, I introduced a patent reform bill, S. 3600, that proposed restrictions on the use of some of the factors that are used to calculate a reasonable royalty. Discussions with patent-damages experts had persuaded me that several of the metrics that are employed by litigants are unsound, unduly manipulable and subjective, and prone to producing excessive awards. The most significant of the restrictions that I proposed in S. 3600 were limits on the use of supposedly comparable licenses for other patents to value the patent in suit, and limits on the use of standardized measures such as the so-called rule of thumb. These proposals are discussed in my statement accompanying the introduction of S. 3600, at 154 Congressional Record S9982, S9984-85, daily ed. September 27, 2008. I argued at the time that the only way to ensure that courts and juries would stop using these metrics ``is for Congress to tell the courts to disallow them.''

It appears that I underestimated the courts' ability and willingness to address these problems on their own. And I certainly did not anticipate the speed with which they might do so. Three recent decisions from the Federal Circuit

have sharply restricted the use of licenses for supposedly comparable patents to value the patent in suit. Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1328, Fed. Cir. 2009, makes clear that mere ``kinship'' in a field of technology is not enough to allow use of evidence of licenses for other patents. Lucent bars the use of other- patent licenses where there is no showing of the significance of such other patented inventions to their licensed products, or no showing of how ``valuable or essential'' those other licensed inventions are. In a similar vein, ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 870, 872, Fed. Cir. 2010, condemns the use of ``unrelated'' licenses for other patents as a measure of value and makes clear that a supposedly comparable license must have ``an economic or other link to the technology in question.'' And Wordtech Systems, Inc. v. Integrated Network Solutions, Inc., 609 F.3d 1308, 1320, Fed. Cir. 2010, recently reiterated that ``comparisons of past patent licenses to the infringement must account for the technological and economic differences between them.''

And just two months ago, I was particularly pleased to see the Federal Circuit announce, in Uniloc USA, Inc. v. Microsoft Corp.,____ F.3d____, 2011 WL 9738, Fed. Cir. 2011, that the ``court now holds as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation.'' The court ruled that testimony based on the rule of thumb is inadmissible under the Daubert standard.

The rule of thumb is a particularly arbitrary and inaccurate measure of patent value. I am glad to see that it will no longer be used.

The Lucent case that I quoted earlier also struck down a damages award that was based on the entire market value of the infringing product. The court did so because there was no substantial evidence that the patented invention was the basis for consumer demand for the product. See Lucent, 580 F.3d at 1337-38. This holding addresses one of the principal complaints that I have heard about patent-damages calculations. And it effects a reform that Congress itself cannot enact. Existing law already required that the invention be the basis for consumer demand before damages can be assessed on the whole product, and the law already required parties to support their contentions with legally sufficient evidence. Congress can change the underlying law, but it cannot make the courts enforce it. The Lucent case did so.

The limits that I had proposed in S. 3600 on the use of metrics such as the rule of thumb, and that bill's restrictions on the use of licenses for comparable patents to value the patent in suit, are rendered superfluous by these intervening judicial decisions. The present bill appropriately leaves patent-damages law to common law development in the courts.

The present bill also makes no changes to the standard for awards of treble damages. As noted in the Minority Report to the committee report for the 2009 bill, Senate Report 111-18 at pages 58-60, that bill's grounds for allowing awards of treble damages were exceedingly narrow, and its safe harbors were overly broad. That bill would have created immunity from willfulness damages even for an infringer who was fully aware of a patent and had no real doubts as to its validity. It also created immunity, in some cases, even for infringers who had engaged in wanton conduct such as deliberate copying.

Awards of enhanced damages play an important role in the U.S. patent system. It is not uncommon that a manufacturer will find itself in a situation where it feels great pressure to copy a competitor's patented invention. In a typical scenario, the sales staff report that they are losing sales because the competitor's product has a particular feature. The manufacturer's engineers discover that the feature is protected by a valid patent, and they find that they are unable to produce the same feature without infringing the patent. The company then has two choices. It can choose to continue to try to reproduce or substitute for the patented feature, and as it does so, continue to lose market share, and in some cases, lose convoyed sales of associated products or services. Or it can choose to infringe the competitor's patent.

Treble damages are authorized in order to deter manufacturers from choosing the second option. Absent the threat of treble damages, many manufacturers would find that their most financially reasonable option is simply to infringe patents. Lost-profits damages are often hard to prove or unavailable. The patent owner is always entitled to a reasonable royalty, but under that standard, the infringer often can keep even some of the profits produced by his infringing behavior. Without treble damages, many companies would find it economically rational to infringe valid patents. Section 284's authorization of treble damages is designed to persuade these companies that their best economic option is to respect valid patents.

If patents were routinely ignored and infringed, the patent system would cease to be of use to many companies and other entities that do some of our nation's most important research and development. These companies are profitable because people respect their patents and voluntarily pay a license. They would not be viable enterprises if they always had to sue in order to get paid for others' use of their patented inventions.

By dropping the 2009 bill's restrictions on treble-damages awards, the present bill preserves these awards' role as a meaningful deterrent to reckless or wanton conduct. Ultimately, we want a treble-damages standard that creates an environment where the most economically reasonable option for a party confronted by a strong patent is to take a license--and where no one thinks that he can get away with copying.

Section 4(c) of the present bill adds a new section 298 to title 35. This section bars courts and juries from drawing an adverse inference from an accused infringer's failure to obtain opinion of counsel as to infringement or his failure to waive privilege and disclose such an opinion. The provision is designed to protect attorney-client privilege and to reduce pressure on accused infringers to obtain opinions of counsel for litigation purposes. It reflects a policy choice that the probative value of this type of evidence is outweighed by the harm that coercing a waiver of attorney-client privilege inflicts on the attorney-client relationship. Permitting adverse inferences from a failure to procure an opinion or waive privilege undermines frank communication between clients and counsel. It also feeds the cottage industry of providing such opinions--an industry that is founded on an unhealthy relationship between clients and counsel and which amounts to a deadweight loss to the patent system. Some lawyers develop a lucrative business of producing these opinions, and inevitably become aware that continued requests for their services are contingent on their opinions' always coming out the same way--that the patent is invalid or not infringed. Section 298 reflects legislative skepticism of the probative value of such opinions.

Section 298 applies to findings of both willfulness and intent to induce infringement--and thus legislatively abrogates Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, Fed. Cir. 2008. That case held, at page 699, that:

Because opinion-of-counsel evidence, along with other

factors, may reflect whether the accused infringer `knew or

should have known' that its actions would cause another to

directly infringe, we hold that such evidence remains

relevant to the second prong of the intent analysis.

Moreover, we disagree with Qualcomm's argument and further

hold that the failure to procure such an opinion may be

probative of intent in this context.

Section 5 of the bill has been substantially reorganized and modified since the 2009 bill. In general, the changes to this part of the bill aim to make inter partes and post-grant review into systems that the Patent Office is confident that it will be able to administer. The changes also impose procedural limits on post-grant administrative proceedings that will prevent abuse of these proceedings for purposes of harassment or delay.

Accused infringers, however, also will benefit from some of the changes made by the present bill. The bill eliminates current law's requirement, at section 317(b) of title 35, that an inter partes reexamination be terminated if litigation results in a final judgment. It also removes the bar on challenging pre-1999 patents in inter partes proceedings. All patents can now be challenged in inter partes review.

In addition, the bill creates a new post-grant review in which a patent

can be challenged on any validity ground during the first nine months after its issue. Challengers who use this proceeding will be estopped in litigation from raising only those issues that were raised and decided in the post-grant review, rather than all issues that could have been raised, the standard employed in inter partes reexamination.

The present bill also softens the could-have-raised estoppel that is applied by inter partes review against subsequent civil litigation by adding the modifier ``reasonably.'' It is possible that courts would have read this limitation into current law's estoppel. Current law, however, is also amenable to the interpretation that litigants are estopped from raising any issue that it would have been physically possible to raise in the inter partes reexamination, even if only a scorched-earth search around the world would have uncovered the prior art in question. Adding the modifier ``reasonably'' ensures that could- have-raised estoppel extends only to that prior art which a skilled searcher conducting a diligent search reasonably could have been expected to discover.

Section 5(a) of the 2009 version of the bill, which would amend section 301, has been modified and moved to section 5(g) of the bill. This provision allows written statements of the patent owner regarding claim scope that have been filed in court or in the Office to be made a part of the official file of the patent, and allows those statements to be considered in reexaminations and inter partes and post-grant reviews for purposes of claim construction. This information should help the Office understand and construe the key claims of a patent. It should also allow the Office to identify inconsistent statements made about claim scope--for example, cases where a patent owner successfully advocated a claim scope in district court that is broader than the ``broadest reasonable construction'' that he now urges in an inter partes review.

The present bill preserves the agreement reached in the 2009 Judiciary Committee mark up to maintain the current scope of inter partes proceedings: only patents and printed publications may be used to challenge a patent in an inter partes review.

One important structural change made by the present bill is that inter partes reexamination is converted into an adjudicative proceeding in which the petitioner, rather than the Office, bears the burden of showing unpatentability. Section 5(c) of the previous bill eliminated language in section 314(a) that expressly required inter partes reexamination to be run as an examinational rather than adjudicative proceeding, but failed to make conforming changes eliminating provisions in section 314(b) that effectively would have required inter partes reexamination to still be run as an examinational proceeding. In the present bill, section 316(a)(4) gives the Office discretion in prescribing regulations governing the new proceeding. The Office has made clear that it will use this discretion to convert inter partes into an adjudicative proceeding. This change also is effectively compelled by new section 316(e), which assigns to the petitioner the burden of proving a proposition of unpatentability by a preponderance of the evidence. Because of these changes, the name of the proceeding is changed from ``inter partes reexamination'' to ``inter partes review.''

The present bill also makes changes to the petition requirements that appear in new sections 312(a)(5) and 322(a)(5). These sections have been modified to require petitioners to provide to the patent owner the same identification of any real parties in interest or privies that is provided to the Office. The Office anticipates that patent owners will take the initiative in determining whether a petitioner is the real party in interest or privy of a party that is barred from instituting a proceeding with respect to the patent.

Language that previously appeared as the last sentences of what are now sections 312(c) and 322(c), and which stated that failure to file a motion to seal will result in pleadings' being placed in the record, has been struck. At best this sentence was redundant, and at worst it created an ambiguity as to whether material accompanying the pleadings also would be made public absent a motion to seal.

Many of the procedural limits added to inter partes and post-grant review by the present bill are borrowed from S. 3600, the bill that I introduced in the 110th Congress. My comments accompanying the introduction of that bill, at 154 Congressional Record S9982-S9993, daily ed. Sept. 27, 2008, are relevant to those provisions of the present bill that are carried over from S. 3600, particularly to the extent that the comments disclose understandings reached with the Patent Office, conscious use of terms of art, or the reasoning behind various provisions. Relevant passages include page S9987's discussion of the use of the adjudicative or oppositional model of post-grant review and estoppel against parties in privity, and page S9988's discussion of what is now section 324(b)'s additional threshold for instituting a post-grant review, the expectation that the Director will identify the issues that satisfied the threshold for instituting an inter partes or post-grant review, the meaning of ``properly filed'' when used in the joinder provisions in sections 315(c) and 325(c), the authorization to consolidate proceedings in sections 315(d) and 325(d), and the standards for discovery in sections 316(a)(6) and 326(a)(5). Also relevant is page S9991's discussion of the excesses and effects of inequitable-conduct litigation, which informs this bill's provisions relating to that doctrine.

Among the most important protections for patent owners added by the present bill are its elevated thresholds for instituting inter partes and post-grant reviews. The present bill dispenses with the test of ``substantial new question of patentability,'' a standard that currently allows 95% of all requests to be granted. It instead imposes thresholds that require petitioners to present information that creates serious doubts about the patent's validity. Under section 314(a), inter partes review will employ a reasonable-likelihood-of-success threshold, and under section 324(a), post-grant review will use a more-likely- than-not-invalidity threshold.

Satisfaction of the inter partes review threshold of ``reasonable likelihood of success'' will be assessed based on the information presented both in the petition for review and in the patent owner's response to the petition. The ``reasonable likelihood'' test is currently used in evaluating whether a party is entitled to a preliminary injunction, and effectively requires the petitioner to present a prima facie case justifying a rejection of the claims in the patent.

Post-grant review uses the ``more likely than not invalid'' test. This slightly higher threshold is used because some of the issues that can be raised in post-grant review, such as enablement and section 101 invention issues, may require development through discovery. The Office wants to ensure that petitioners raising such issues present a complete case at the outset, and are not relying on obtaining information in discovery in the post-grant review in order to satisfy their ultimate burden of showing invalidity by a preponderance of the evidence.

Subsections (a) and (b) of sections 315 and 325 impose time limits and other restrictions when inter partes and post-grant review are sought in relation to litigation. Sections 315(a) and 325(a) bar a party from seeking or maintaining such a review if he has sought a declaratory judgment that the patent is invalid. This restriction applies, of course, only if the review petitioner has filed the civil action. These two subsections (a) do not restrict the rights of an accused infringer who has been sued and is asserting invalidity in a counterclaim. That situation is governed by section 315(b), which provides that if a party has been sued for infringement and wants to seek inter partes review, he must do so within 6 months of when he was served with the infringement complaint.

Section 325(b) provides that if a patent owner sues to enforce his patent within three months after it is granted, a court cannot refuse to consider a motion for a preliminary injunction on the basis that a post-grant review has been requested or instituted. A patent owner who sues during this period is likely to be a market participant who already has an infringer intruding on his market, and who needs an injunction in order to avoid irreparable harm.

This provision strengthens and carries over to post-grant review the rule of Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, Fed. Cir. 2008.

Sections 315(c) and 325(c) allow joinder of inter partes and post- grant reviews. The Office anticipates that joinder will be allowed as of right--if an inter partes review is instituted on the basis of a petition, for example, a party that files an identical petition will be joined to that proceeding, and thus allowed to file its own briefs and make its own arguments. If a party seeking joinder also presents additional challenges to validity that satisfy the threshold for instituting a proceeding, the Office will either join that party and its new arguments to the existing proceeding, or institute a second proceeding for the patent. The Director is given discretion, however, over whether to allow joinder. This safety valve will allow the Office to avoid being overwhelmed if there happens to be a deluge of joinder petitions in a particular case.

In the second sentence of section 325(d), the present bill also authorizes the Director to reject any request for ex parte reexamination or petition for post-grant or inter partes review on the basis that the same or substantially the same prior art or arguments previously were presented to the Office. This will prevent parties from mounting attacks on patents that raise issues that are substantially the same as issues that were already before the Office with respect to the patent. The Patent Office has indicated that it currently is forced to accept many requests for ex parte and inter partes reexamination that raise challenges that are cumulative to or substantially overlap with issues previously considered by the Office with respect to the patent.

The second sentence of section 325(d) complements the protections against abuse of ex parte reexamination that are created by sections 315(e) and 325(e). The estoppels in subsection (e) will prevent inter partes and post-grant review petitioners from seeking ex parte reexamination of issues that were raised or could have been raised in the inter partes or post-grant review. The Office has generally declined to apply estoppel, however, to an issue that is raised in a request for inter partes reexamination if the request was not granted with respect to that issue. Under section 325(d), second sentence, however, the Office could nevertheless refuse a subsequent request for ex parte reexamination with respect to such an issue, even if it raises a substantial new question of patentability, because the issue previously was presented to the Office in the petition for inter partes or post-grant review.

Under paragraph (1) of sections 315(e) and 325(e), a party that uses inter partes or post-grant review is estopped from raising in a subsequent PTO proceeding any issue that he raised or reasonably could have raised in the post-grant or inter partes review. This effectively bars such a party or his real parties in interest or privies from later using inter partes review or ex parte reexamination against the same patent, since the only issues that can be raised in an inter partes review or ex parte reexamination are those that could have been raised in the earlier post-grant or inter partes review. The Office recognizes that it will need to change its regulations and require that ex parte reexamination requesters identify themselves to the Office in order for the Office to be able to enforce this new restriction.

The present bill also incorporates S. 3600's extension of the estoppels and other procedural limits in sections 315 and 325 to real parties in interest and privies of the petitioner. As discussed at 154 Congressional Record S9987, daily ed. Sept. 27, 2008, privity is an equitable rule that takes into account the ``practical situation,'' and should extend to parties to transactions and other activities relating to the property in question. Ideally, extending could-have-raised estoppel to privies will help ensure that if an inter partes review is instituted while litigation is pending, that review will completely substitute for at least the patents-and-printed-publications portion of the civil litigation. Whether equity allows extending privity estoppel to codefendants in litigation, however, will depend in large measure upon the actions of the patent owner, and whether he has made it reasonably and reliably clear which patent claims he is asserting and what they mean. If one defendant has instituted an inter partes review, but other defendants do not have an opportunity to join that review before it becomes reasonably clear which claims will be litigated and how they will be construed, it would be manifestly unfair to extend privity estoppel to the codefendants.

The Office also has the authority to address such scenarios via its authority under section 316(a)(5), which gives the Office discretion in setting a time limit for allowing joinder. The Office has made clear that it intends to use this authority to encourage early requests for joinder and to discourage late requests. The Office also has indicated that it may consider the following factors when determining whether and when to allow joinder: differences in the products or processes alleged to infringe; the breadth or unusualness of the claim scope that is alleged, particularly if alleged later in litigation; claim- construction rulings that adopt claim interpretations that are substantially different from the claim interpretation used in the first petition when that petition's interpretation was not manifestly in error; whether large numbers of patents or claims are alleged to be infringed by one or more of the defendants; consent of the patent owner; a request of the court; a request by the first petitioner for termination of the first review in view of strength of the second petition; and whether the petitioner has offered to pay the patent owner's costs.

Sections 316(a)(6) and 326(a)(5) prescribe standards for discovery. In inter partes review, discovery is limited to deposition of witnesses submitting affidavits or declarations, and as otherwise necessary in the interest of justice. In post-grant review, discovery is broader, but must be limited to evidence directly related to factual assertions advanced by either party. For commentary on these standards, which are adopted from S. 3600, see 154 Congressional Record S9988-89, daily ed. Sept. 27, 2008.

Sections 316(a)(12) and 326(a)(11) provide that inter partes and post-grant reviews must be completed within 12 months of when the proceeding is instituted, except that the Office can extend this deadline by 6 months for good cause. Currently, inter partes reexaminations usually last for 3 to 5 years. Because of procedural reforms made by the present bill to inter partes proceedings, the Patent Office is confident that it will be able to complete these proceedings within one year. Among the reforms that are expected to expedite these proceedings are the shift from an examinational to an adjudicative model, and the elevated threshold for instituting proceedings. The elevated threshold will require challengers to front load their case. Also, by requiring petitioners to tie their challenges to particular validity arguments against particular claims, the new threshold will prevent challenges from ``mushrooming'' after the review is instituted into additional arguments employing other prior art or attacking other claims.

Although sections 316 and 326 do not regulate when and how petitioners will be allowed to submit written filings once a review is instituted, the Office has made clear that it will allow petitioners to do so via the regulations implementing the proceedings. Sections 316 and 326 do clearly allow petitioners to obtain some discovery and to have an oral hearing. Obviously, it would make no sense to do so if petitioners were not also allowed to submit written arguments. The bill conforms to the Office's preference, however, that it be given discretion in determining the procedures for written responses and other filings, in order to avoid the formalism of current chapter 31, which adds substantially to the delays in that proceeding.

The bill also eliminates intermediate administrative appeals of inter partes proceedings to the BPAI, instead allowing parties to only appeal directly to the Federal Circuit. By reducing two levels of appeal to just one, this change will substantially accelerate the resolution of inter partes cases.

Sections 5(c)(2)(C) and 5(c)(3) of the bill provide for a transition from current inter partes reexamination to new inter partes review. To protect the Office from being overwhelmed by the

new inter partes and post-grant proceedings, sections 5(c)(2)(C) and 5(f)(2) allow the Director to place a limit on the number of post-grant and inter partes reviews that will be instituted during the first four years that the proceedings are in effect. It is understood that if the Office rejects a petition during this period because of this numerical limit, it will make clear that the rejection was made because of this limit and not on the merits of the validity challenges presented in the petition. Otherwise, even a challenger with strong invalidity arguments might be deterred from using inter partes or post-grant review by fear that his petition might be rejected because of the numerical limit, and the fact of the rejection would then be employed by the patent owner in civil litigation to suggest that the experts at the Patent Office found no merit in the challenger's arguments.

Similarly, under subsection (a)(2) of sections 316 and 326, the Office is required to implement the inter partes and post-grant review thresholds via regulations, and under subsection (b) of those sections, in prescribing regulations, the Office is required to take into account, among other things, the Office's ability ``to timely complete proceedings instituted under'' those chapters. It is expected that the Office will include in the threshold regulations a safety valve that allows the Office to decline to institute further proceedings if a high volume of pending proceedings threatens the Office's ability to timely complete all proceedings. The present bill's inclusion of this regulations consideration in subsection (b) reflects a legislative judgment that it is better that the Office turn away some petitions that otherwise satisfy the threshold for instituting an inter partes or post-grant review than it is to allow the Office to develop a backlog of instituted reviews that precludes the Office from timely completing all proceedings. Again, though, if the Office rejects a petition on the basis of this subsection (b) consideration, rather than on the basis of a failure to satisfy the substantive standards of the thresholds in section 314 or 324, it is expected that Office will make this fact clear when rejecting the petition.

Section 5(c)(3) of the present bill applies the bill's new threshold for instituting an inter partes review to requests for inter partes reexamination that are filed between the date of enactment of the bill and one year after the enactment of the bill. This is done to ensure that requesters seeking to take advantage of the lax standards of the old system do not overwhelm the Office with requests for inter partes reexamination during the year following enactment of the bill.

Finally, section 5(h)(2) of the bill addresses an issue raised by a recent publication, Charles E. Miller & Daniel P. Archibald, The Destructive Potential of the Senate Version of the Proposed Patent Reform Act of 2010: The Abolition of de novo Review in Ex parte Patent Reexaminations (circulated April 16, 2010). This article criticizes the draft managers' amendment that Senators Leahy and Sessions circulated in March 2010 on the ground that it eliminates authority for a patent owner to have relief by civil action under section 145 from an adverse decision in the BPAI on review of an ex parte reexamination. It is fairly apparent, however, that this authority was intended to be eliminated by the amendments made by section 4605 of the American Inventors Protection Act of 1999, Public Law 106-113, to sections 134 and 141 of title 35. The 2010 managers' amendment simply maintained the AIPA's changes to sections 134 and 141.

The AIPA neglected, however, to eliminate a cross reference to section 145 in section 306 of title 35, which delineates the appeals available from ex parte reexaminations. The maintenance of this cross reference in section 306 created an ambiguity as to whether the AIPA did, in fact, eliminate a patent owner's right to seek remedy in the district court under section 145 from an adverse BPAI decision on review of an ex parte reexamination. See Sigram Schindler Beteiligungsgesellschaft mbH v. Kappos, 93 USPQ2d 1752, E.D. Va. 2009, (Ellis, J.), notes that ``the fact that Sec. 306 continues to cross- reference Sec. 141 to 145 following the AIPA's enactment appears to be in tension with the AIPA amendment to Sec. 141.''

Section 5(h)(2) of the present bill eliminates this ambiguity by striking the citation to section 145 from section 306 of title 35.

Section 6 of the bill includes all provisions of the bill addressing the jurisdiction of the Patent Trial and Appeal Board and administrative and judicial appeals. In section 6(a), the recodification of section 6 of title 35 is modified so that all members of the PTAB can participate in all proceedings. Also, subsection (d) is added to the recodification of section 6 of title 35. By omitting this provision, the 2009 bill would have effectively repealed the APJ ``appointments fix'' that had been enacted in 2008.

In section 6(c) of the bill, section 141 of title 35 is modified to allow appeals of PTAB decisions in inter partes and post-grant reviews, and the section is edited and reorganized. To address the continuing need to allow appeals of pending interferences, language has been added to section 5(f)(3) of the bill that deems references to derivation proceedings in the current appeals statutes to extend to interferences commenced before the effective date of the bill's repeal of interferences, and that allows the Director to deem the PTAB to be the BPAI for purposes of pending interferences and to allow the PTAB to conduct such interferences.

In section 6(c)(2) of the bill, section 1295(a)(4)(A) of title 28 is modified to authorize appeals of reexaminations and reviews. Interestingly, current 1295(a)(4)(A) only gives the Federal Circuit jurisdiction over appeals from applications and interferences. It appears that Congress never gave the Federal Circuit jurisdiction over appeals from reexaminations when it created those proceedings. The language of subparagraph (A) is also generalized and clarified, recognizing that the details of what is appealable will be in sections 134 and 141. Also, for logical consistency, language is added to subparagraph (A) making clear that section 145 and 146 proceedings are an exception to the Federal Circuit's otherwise exclusive appellate jurisdiction over applications and interferences under that subparagraph.

In section 6(c)(3) of the bill, section 143 of title 35 is modified to allow the Director to intervene in the appeal of a decision of the PTAB in an inter partes or post-grant review or a derivation proceeding.

In the effective-date provision at the end of section 6, various existing authorities are extended so that they may continue to apply to inter partes reexaminations commenced under the old system, and the apparent gap in current section 1295(a)(4)(A)'s authorization of jurisdiction is immediately filled with respect to all inter partes and ex parte reexaminations.

In section 7, the present bill makes several PTO-recommended changes to previous bill versions' authorization to make preissuance submissions of prior art. In paragraph (1) of new section 122(e) of title 35, the word ``person'' has been replaced with ``third party,'' so that submissions may only be submitted by third parties. This addresses the Office's concern that applicants might otherwise use section 122(e) to submit prior art and thereby evade other examination disclosure requirements.

In subparagraph (A) of section 122(e)(1), the word ``given'' has been added. This has the effect of including email notices of allowances.

In clause (i) of section 122(e)(1)(B), the word ``first'' has been added. This change was sought by the Office, which prefers to limit submissions to the first publication for two reasons. First, republications overwhelmingly only narrow the claims, and in such cases anyone who would want to submit prior art could have done so at the first publication. Second, and more importantly, most republications occur only after the first office action, when there is usually rapid back-and-forth action on the application between the applicant and the Office. Allowing third parties to make prior-art submissions at this point would require the Office to wait six months after the republication in order to allow such submissions, and would otherwise greatly slow down this otherwise relatively speedy final phase of prosecution.

Also in clause (i) of section 122(e)(1)(B), the words ``by the Office'' are added to ensure that only publication by the United States Patent and Trademark Office begins the period for

making pre-issuance submissions. The Office sought this change because a foreign publication can be deemed a publication under section 122, and the Office wants to ensure that it is only required to collect third-party submissions for an application if that application is actually filed in the United States.

Section 8 of the present bill omits provisions appearing in prior bills that would have created an expanded right to an interlocutory appeal from claim-construction rulings. Even as revised in the 2009 Judiciary Committee mark up, previous section 8(b) gave the Federal Circuit insufficient discretion to turn away such appeals and posed a serious risk of overwhelming the court. The 2009 mark-up revisions allowed the Federal Circuit to reject an interlocutory appeal if it found clear error in the district court's certification that there is a sufficient evidentiary record for an interlocutory appeal and that such an appeal may advance the termination of the litigation or will likely control the outcome of the case. It would be difficult in any case, however, to reject a finding that an interlocutory appeal of claim- construction rulings may lead to the termination of the litigation. Moreover, if a district judge has certified a case for interlocutory appeal, it is very unlikely that the record that he has created would support a finding that his decision is clearly erroneous. And finally, given the disdain for patent cases felt by a substantial number of district judges, there is a serious likelihood that a large number of judges would take advantage of a new authorization from Congress to send away such cases to the Federal Circuit, with the hope that they do not return. Current law's grant of discretion to the Federal Circuit to entertain interlocutory appeals of claim-construction rulings strikes the appropriate balance.

Section 10 of the present bill authorizes supplemental examination of a patent to correct errors or omissions in proceedings before the Office. Under this new procedure, information that was not considered or was inadequately considered or was incorrect can be presented to the Office. If the Office determines that the information does not present a substantial new question of patentability or that the patent is still valid, that information cannot be used as a basis for an inequitable- conduct attack on the surviving patent in civil litigation. New section 257(c)(1) follows the usual practice of referring to inequitable- conduct attacks in terms of unenforceability, rather than invalidity, though courts have in the past used the terms interchangeably when describing the effect of fraud or inequitable conduct on a patent. J.P. Stevens & Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d 1553, 1560, Fed. Cir. 1984, notes that ``[w]hether the holding should be one of invalidity or unenforceability has had no practical significance in cases thus far presented to this court.'' The term should be considered to be used interchangeably with ``invalidity'' in this bill as well. Obviously, Congress would not create a procedure for reexamining patents that allowed them to be protected against subsequent inequitable-conduct challenges of unenforceability, only to allow the same patents to be challenged on the same basis and declared invalid on the basis of inequitable conduct.

While some critics of this proposal have suggested that it would immunize misconduct by inventors and practitioners, I would note that the Patent Office has ample authority to sanction such misconduct. Under section 32 of title 35, the Office can bar an attorney from appearing before the Office if he has engaged in misconduct in any proceeding before the Office. In section 2(l) of this bill, we have extended the statute of limitations for initiating such a proceeding. Under current regulations, the Office also sanctions misconduct by striking offending filings or reducing the weight that they are given. And the Federal Circuit has recognized that the Office also ``has inherent authority to govern procedure before the [Office],'' as noted in In re Bogese II, 303 F.3d 1362, 1368, Fed. Cir. 2002, and that inherent authority to sanction attorneys for misconduct is not restricted to Article III courts, a point noted in In re Bailey, 182 F.3d 860, 864 n.4, Fed. Cir. 1999.

Given the Office's existing tools for sanctioning misconduct, there is no need to make the courts into supervisors of attorney conduct in Office proceedings. It is doubtful that a practitioner who is discovered to have engaged in substantial misconduct in proceedings before the Office would escape adequate and effective sanction by the Office itself.

Section 11 of the bill repeals the so-called Baldwin rule, which requires judges on the Federal Circuit to live within 50 miles of Washington, D.C. Subsection (b) provides that the repeal of the Baldwin rule shall not be construed to imply that the Administrative Office of the Courts must provide court facilities or administrative support services to judges who choose to reside outside of the District of Columbia. This proviso does not affect the AOC's existing authority to provide services to judges outside of the District of Columbia. Its reference to ``court facilities'' means space within a courthouse or federal building, and the reference to ``administrative support services'' means those services that would be provided to judges within a courthouse or federal building.

In section 15 of the bill, a conforming subsection (b) has been added to ensure that the best-mode requirement cannot be used to challenge a patent's entitlement to a right of priority or to the benefit of an earlier filing date. In the new effective-date subsection, the section is made applicable to all ``proceedings'' commenced after enactment of the Act, in order to make clear that the section's changes to the law will be immediately applicable not just in litigation but also in post- grant reviews of patents under chapter 32.

At subsections (a) through (h), section 16 of the bill has been modified by reinserting language that eliminates various deceptive- intent requirements that relate to correcting the naming of the inventor or a joint inventor, obtaining a retroactive foreign filing license, seeking section 251 reissue, or enforcing remaining valid claims if a claim is invalidated. See generally Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579, 596, 7th Cir. 1971. These changes were first proposed in section 5 of the original Patent Reform Act of 2005, H.R. 2795, 109th Congress, and have been advocated by universities and their technology-transfer offices. For reasons that are not entirely clear, subsequent bills maintained this section and its addition of substructure and titles to the affected code sections, but struck the substantive part of the section--i.e., its elimination of the deceptive-intent requirements.

Eliminating the various deceptive-intent requirements moves the U.S. patent system away from the 19th century model that focused on the patent owner's subjective intent, and towards a more objective- evidence-based system that will be much cheaper to litigate and more efficient to administer.

Section 16(i) of the present bill corrects several errors and typos throughout title 35 that are noted in the reviser's notes to the U.S. Code.

Section 16(j) strikes unnecessary references to ``of this title'' that are sprinkled throughout title 35. The 1952 Act included such unnecessary references, but more recent additions to the code have not, and the current bill's changes omit such references. Because the unnecessary references greatly outnumber the necessary references, the provision is written to strike all references but then except out the necessary references.

The present bill's new section 17 enacts the so-called Holmes Group fix, H.R. 2955, 109th Congress, which was reported out of the House Judiciary Committee in 2006. The committee report accompanying that bill, House Report 109-407, explains the bill's reasons for abrogating Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002), and more fully precluding state court jurisdiction over patent legal claims.

Section 17 makes two modifications to the reported version of H.R. 2955. The first modification, at subsection (c), limits the bill's expansion of Federal Circuit jurisdiction to only compulsory counterclaims asserting patent rights, rather than the original bill's expansion of jurisdiction to include any counterclaim asserting patent rights. Compulsory counterclaims are defined at Rule 13(a) and basically consist of counterclaims that arise out of the same transaction or occurrence and that do not require the joinder of parties over whom the court would lack

jurisdiction. A compulsory counterclaim must be raised as a counterclaim in the case in question, and cannot be asserted in a later case. Without this modification, it is possible that a defendant could raise unrelated and unnecessary patent counterclaims simply in order to manipulate appellate jurisdiction. With the modification, a defendant with a permissive patent counterclaim who wanted to preserve Federal Circuit appellate review of that counterclaim could simply wait to assert it in a separate action.

The second modification, in subsection (d), corrects an error in H.R. 2955 that would have required remand of patent and other intellectual- property counterclaims after their removal. H.R. 2955's proposed removal statute, at section 1454(c)(1) of title 28, required a remand to the state court of all claims that are not within the original or supplemental jurisdiction of the district court. Since the bill no longer amends section 1338 to give district courts original jurisdiction over patent counterclaims, however--and since, pursuant to Holmes Group itself, patent counterclaims are not within the district courts' original jurisdiction--then under paragraph (1), district courts would be required to remand the patent counterclaims. Courts would probably strain to avoid reading the paragraph this way, since doing so defeats the only apparent purpose of the section, and the amendments to section 1338 strip the state courts of jurisdiction over patent counterclaims. But that is exactly what H.R. 2955's proposed 1454(c)(1) ordered the court to do. In the modified text of section 17(d) of this bill, the court is instructed to not remand those claims that were a basis for removal in the first place--that is, the intellectual-property counterclaims.

Section 18 of the bill creates an administrative mechanism for reviewing the validity of business-method patents. In 1998, the U.S. Court of Appeals for the Federal Circuit, in its decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), substantially expanded the patentability of business-method inventions in the United States, holding that any invention can be patented so long as it produces a ``useful, concrete, and tangible result'' and meets other requirements of title 35. In recent years, federal judicial decisions, culminating in the U.S.

Mr. President, I rise today to recognize and thank the patent lawyers and Senate staff who have played a critical role in the drafting and enactment of the present bill.

Among the Senate staff who have played a role with regard to this bill are Chip Roy, Holt Lackey, and Zina Bash of Senator Cornyn's staff, David Barlow and Rob Porter of Senator Lee's staff, Walt Kuhn of Senator Graham's staff, and Danielle Cutrona and Bradley Hayes of Senator Sessions's staff. Special mention is merited for Matt Sandgren of Senator Hatch's staff, who fought tenaciously for the bill's supplemental examination provision, and who worked hard to defeat the amendment to strip the bill of its adoption of the first-to-file system, and Sarah Beth Groshart of Senator Coburn's staff, who helped draft the Coburn amendment, which will create a revolving fund for the PTO and put an end to fee diversion. Past staff who played an important role include Jennifer Duck of Senator Feinstein's staff, and Ryan Triplette, who managed the bill for Senator Hatch while he was chairman and for Senator Specter while he was the lead Republican on the committee. Miss Duck and Miss Triplette negotiated the managers' amendment that was adopted during the bill's 2009 committee mark up, and which represented a major breakthrough on this bill, resolving the contentious issues of damages and venue. In the House of Representatives, key staff include Blaine Merritt and Vishal Amin of Chairman Lamar Smith's staff, and Christal Sheppard of Mr. Conyers's staff. Bob Schiff of Senator Feingold's staff worked with my staff to develop minority views for the bill's 2009 committee report--I believe that this is the only time that Senator Feingold and I ever submitted a minority report together. I should also acknowledge Tim Molino of Senator Klobuchar's staff, Rebecca Kelly of Senator Schumer's staff, Caroline Holland of Senator Kohl's staff, and Galen Roehl, who worked in past Congresses for Senator Brownback, and who currently staffs Senator Toomey. Much of S. 3600 was drafted in Senator Brownback's conference room. Let me also recognize the work of Rob Grant of Senate Legislative Counsel, who has drafted literally hundreds of versions of and amendments to this bill. And finally, I must acknowledge Rita Lari, who managed this bill for Senator Grassley on the Senate floor this past week, and the indispensable Aaron Cooper, who has managed the bill for the chairman since the beginning of 2009.

Among those outside the Senate, I recognize and thank Hayden Gregory of the American Bar Association, Laurie Self and Rod McKelvie of Covington & Burling, and Hans Sauer, Mike Schiffer, Bruce Burton, Matt Rainey, David Korn, Carl Horton, Steve Miller, Doug Norman, and Stan Fendley. The Wisconsin Alumni Research Foundation has played an important role, particularly with regard to the bill's enhanced grace period. I thank Carl Gulbrandsen, Howard Bremmer, Andy Cohn, and Mike Remington. I thank Todd Dickinson and Vince Garlock of AIPLA, and Jim Crowne, who was willing to come to the Senate to double check the draft enrolled bill. I should also mention Herb Wamsley of Intellectual Property Owners, as well as Dana Colarulli, who has worn two hats during the course of his work on this bill, first with IPO, and subsequently as the head of legislative affairs at the PTO. Key participants at the PTO have also included Mike Fleming, John Love, Jim Toupin, and Rob Clarke. And of course I must mention the current Director, David Kappos, without whose effort and dedication the passage of the present bill would not have been possible.

Finally, allow me to acknowledge the key members of the 21st Century Coalition for Patent Reform, who have devoted countless hours to this bill, and stuck with it through thick and thin. They have also formed an important ``kitchen cabinet'' that has been indispensable to the committee's drafting of this bill and to the resolution of difficult technical questions. I thus acknowledge and thank Phil Johnson, Gary Griswold, Bob Armitage, and Mike Kirk for their key role in the creation of the America Invents Act.

I yield the floor. I suggest the absence of a quorum.

Mr. President, I rise on behalf of myself and Senator Boxer to introduce legislation to establish a National Heritage Area in the California Sacramento-San Joaquin Delta. This legislation will create the first Heritage Area in California.

I am pleased that I have had the opportunity to work with Senator Boxer, Representative John Garamendi, and the County Supervisors from the 5 Delta Counties to prepare this legislation and support their efforts to fully partner with the State, the Federal agencies, and other local governments to improve and care for the Delta.

This bill will establish the Sacramento-San Joaquin Delta as a National Heritage Area.

The Delta Protection Commission, created by California law and responsible to the citizens of the Delta and California, will manage the Heritage Area. It will ensure an open and public process, working with all levels of federal, state, and local government, tribes, local stakeholders, and private property owners as it develops and implements the management plan for the Heritage Area. The goal is to conserve and protect the Delta, its communities, its resources, and its history.

It is also important to understand what this legislation will not do. It will not affect water rights. It will not affect water contracts. It will not affect private property.

Nothing in this bill gives any governmental agency any more regulatory power than it already has, nor does it take away regulatory from agencies that have it.

In short, this bill does not affect water rights or water contracts, nor does is impose any additional responsibilities on local government or residents. Instead, it authorizes Federal assistance to a local process already required by State law that will elevate the Delta, providing a means to conserve and protect its valued communities, resources, and history.

The Sacramento-San Joaquin Delta is the largest estuary on the West Coast. It is the most extensive inland delta in the world, and a unique national treasure.

Today, it is a labyrinth of sloughs, wetlands, and deepwater channels that connect the waters of the high Sierra mountain streams to the Pacific Ocean through the San Francisco Bay. Its approximately 60 islands are protected by 1,100 miles of levees, and are home to 3,500,000 residents, including 2,500 family farmers. The Delta and its farmers produce some of the highest quality specialty crops in the United States.

The Delta offers recreational opportunities to the two million Californians who visit the Delta each year for boating, fishing, hunting, visiting historic sites, and viewing wildlife. It provides habitat for more than 750 species of plants and wildlife. These include sand hill cranes that migrate to the Delta wetland from places as far away as Siberia. The Delta also provides habitat for 55 species of fish, including Chinook salmon--some as large as 60 pounds--that return each year to travel through the Delta to spawn in the tributaries.

These same waterways also channel fresh water to the Federal and State-owned pumps in the South Delta that provide water to 23 million Californians and 3 million acres of irrigated agricultural land elsewhere in the state.

Before the Delta was reclaimed for farmland in the 19th Century, the Delta flooded regularly with snow melt each spring, and provided the rich environment that, by 1492, supported the largest settlement of Native Americans in North America.

The Delta was the gateway to the gold fields in 1849, after which Chinese workers built hundreds of miles of levees throughout the waterways of the Delta to make its rich peat soils available for farming and to control flooding.

Japanese, Italians, German, Portuguese, Dutch, Greeks, South Asians, and other immigrants began the farming legacy, and developed technologies specifically adapted to the unique environment, including the Caterpillar Tractor, which later contributed to agriculture and transportation internationally.

Delta communities created a river culture befitting their dependence on water transport, a culture which has attracted the attention of authors from Mark Twain and Jack London to Joan Didion.

The Delta is in crisis due to many factors, including invasive species, urban and agricultural run-off, wastewater discharges, channelization, dredging, water export operations, and other stressors.

Many of the islands of the Delta are between 10 and 20 feet below sea level, and the levee system is presently inadequate to provide reliable flood protection for historic communities, significant habitats, agricultural enterprises, water resources, transportation and other infrastructure.

Existing levees have not been engineered to withstand earthquakes. Should levees fail for any reason, a rush of seawater into the interior of the Delta could damage the already fragile ecosystem, contaminate drinking water for many Californians, flood agricultural land, inundate towns, and damage roads, power lines, and water project infrastructure.

The State of California has been working for decades on a resolution to the water supply and ecosystem crisis in the State, and has a long history of partnerships with Federal agencies, working together to resolve challenges to the Delta's historic communities, ecosystem and the water it supplies so many Californians.

The Delta Protection Commission, established under state law, has been tasked by the California State Legislature with providing a forum for Delta residents to engage in decisions regarding actions to recognize and enhance the unique cultural, recreational, agricultural resources, infrastructure and legacy communities of the Delta and to serve as the facilitating agency for the implementation of a National Heritage Area in the Delta.

This legislation will complement the broadly supported State Water Legislation of 2009, which called for a Heritage designation for the Delta.

This legislation authorizes the creation of the Delta Heritage Area and federal assistance to the Delta Protection Commission in implementing the Area. This legislation is just a small part of the commitment the Federal government must make to the Delta. I look forward to continuing to work with my colleagues at every level of

government to restore and sustain the ecosystem in the Delta, to provide for reliable water supply in the State of California, to recover the native species of the Delta, protect communities in the Delta from flood risk, ensure economic sustainability in the Delta, improve water quality in the Delta, and; sustain the unique cultural, historical, recreational, agricultural and economic values of the Delta.

The National Heritage Area designation for the Sacramento-San Joaquin Delta will help local governments develop and implement a plan for a sustainable future by providing Federal recognition, technical assistance and small amounts of funding to a community-based process already underway.

Through the Delta Heritage Area, local communities and citizens will partner with Federal, State and local governments to collaboratively work to promote conservation, community revitalization, and economic development projects.

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

Mr. President, today I am introducing the ``Ban Poisonous Additives Act of 2011,'' a bill that would ban the chemical Bisphenol A, known as BPA, from all children's feeding products. I thank my cosponsors Senators Schumer, Kerry, Sanders, and Franken for their support.

I vowed in the last Congress not to give up, and this is why I am introducing a bill that bans the use of BPA in baby bottles, sippy cups, infant formula, and baby food containers: the products used to provide food and beverages to the most vulnerable.

I have a deep, abiding concern regarding the presence of toxins and chemicals in the daily lives of Americans. BPA is an endocrine disruptor, which means that it interferes with the way hormones work in the body.

The evidence against BPA is mounting, especially its harmful effects on babies and children who are still developing.

I believe we have an obligation to safeguard babies and children from unnecessary exposure to this chemical that is linked to so many health problems.

Over 200 scientific studies show that even at low doses, BPA is linked to serious health problems including: Cancer, Diabetes, Heart Disease, Early puberty, Behavioral problems, Obesity.

This chemical is so widespread it has been found in 93 percent of Americans.

Babies and children are particularly at risk to the exposure of BPA because when they are developing, any small change can cause dramatic consequences.

It may not surprise you that the chemical industry continues to insist that BPA is not harmful. According to at least one study, there is reason to be skeptical about research coming from chemical companies.

In 2006, the journal Environmental Research published an article comparing the results of government funded studies on BPA to BPA studies funded by industry.

The difference is glaring.

Ninety-two percent of the government funded studies found that exposure to BPA caused health problems.

Overwhelmingly, government studies found harm. None of the industry funded studies identified health problems as a result of BPA exposure. Not one.

Clearly, serious questions are raised about the validity of the chemical industry's studies. The results also illustrate why our nation's regulatory agencies should not and cannot solely rely on chemical companies to conduct research on their own products.

The fact that so many adverse health effects are linked to this chemical, the fact that this chemical is so present in our bodies, and the fact that babies are more at risk from its harmful effects leads me to believe that there is no good reason to expose our children to BPA.

This is why we are introducing legislation that protects all babies across the country, no matter which state they happen to live.

This bill will ensure that parents no longer have to wonder whether products they buy for their babies and children will harm them now or later in life.

This bill: Bans the use of BPA in baby bottles and sippy cups within 6 months; Bans the use of BPA in baby food within 1 year; Bans the use of BPA in infant formula within 18 months; Requires that the FDA issue a revised safety assessment on BPA by December 1, 2012; and Includes a savings clause to allow states to enact their own legislation.

This bill makes sense. It's a reasonable step forward to protecting our children's health.

Major manufacturers are already phasing out BPA from their food and beverage products for children.

Food and beverage products for children all have safe, alternative, BPA-free packaging available right now.

Major baby food and formula manufacturers offer BPA-free alternatives including: Nestle's GOOD START, Similac powdered infant formula, Enfamil powdered infant formula, Nestle liquid formula, and Similac liquid formula.

At least 14 manufacturers of baby bottles either offer some BPA-free alternatives or have completely banned its use. They are: Avent, Born Free, Disney First Years, Dr. Brown's, Evenflo, Gerber, Green to Grow, Klean Kanteen, Medala, Munchkin, Nuby Sippy Cups, Playtex, Think Baby, and Weil Baby.

Many major retailers have taken action and sell BPA-free baby bottles and cups: CVS, Kmart, Kroger, Rite Aid, Safeway, Sears, Toys ``R'' Us and Babies ``R'' Us, Wal-Mart, Wegmans, and Whole Foods.

Eight states have already enacted laws banning BPA from children's products: Connecticut, Maryland, Massachusetts, Minnesota, New York, Vermont, Washington, and Wisconsin.

Other countries have already moved forward to restrict this chemical. Canada declared BPA a toxic substance, and banned it from all baby bottles and sippy cups. Denmark and France have national bans on BPA in certain children's products.

The European Commission banned BPA from baby bottles, protecting consumers in the European Union.

Clearly, the problem has been recognized and steps are being taken by countries, states, companies, and retailers to remove this harmful chemical.

Let me briefly explain what BPA is.

BPA is a synthetic estrogen. As I stated previously, it is a hormone disruptor and interferes with how hormones work in the body. This chemical is used in thousands of consumer products to harden plastics, line tin cans, and make CDs. It is even used to coat airline tickets, grocery store receipts, and to make dental sealants.

It is one of the most pervasive chemicals in modern life. And, as with so many other chemicals in consumer products, BPA has been added to our products without us knowing whether it was safe or not.

Alternatives exist because there is growing concern about the harmful effects of BPA. The chemical industry continues to try to quiet criticism by reassuring consumers that BPA is safe.

I don't buy it.

As I previously stated, over 200 scientific studies show that exposure to BPA, particularly during prenatal development and early infancy, are linked to a wide range of adverse health effects in later life.

Because of their smaller size and stage of development, babies and children are particularly at risk from the harmful health effects of

Mr. President, in passing the Patient Protection and Affordable Care Act, PPACA, on March 23, 2010, the 111th Congress made great strides towards protecting consumers from egregious health insurance company practices. However, despite the passage of this historic legislation, the urgent need to protect Americans from unfair health insurance rate increases remains.

Health insurance premiums have been spiraling upwards nationally at out-of-control rates--10, 20, 30 percent every year--all while big national insurance companies enjoy increasing profits.

Without further legislative action, health insurance companies will continue to do what they have done for far too long: put their profits ahead of people.

Over the past decade, family health insurance premiums have more than doubled, growing a shocking 130 percent, while workers' hourly earnings rose by only 38 percent, and inflation rose just 29 percent.

From 2000-2008, individuals in the employer-sponsored market saw premiums increase an average of 90 percent.

The cost of health insurance continues to outpace income and inflation for other goods and services, and these rapidly escalating costs strain businesses, families, and individuals.

In 2009, 57 percent of people attempting to purchase insurance in the individual market found it difficult or impossible to afford coverage.

All the while, in the third quarter of 2010, the six-largest investor-owned health insurance companies (Aetna, Coventry Health, United Health, Humana, WellPoint, and Cigna) saw a 22 percent increase in combined net income, putting them on pace to break their own profit record.

The problem is that the health reform law did not go far enough to control these unfair premium increases, it leaves a loophole.

Simply stated, there is no federal authority to do anything about these rate increases, even if they are unfair.

We need to close this loophole.

This is why today I am introducing, with Senators Boxer and Inouye, the Health Insurance Rate Review Act of 2011. Representative Schakowsky is introducing companion legislation in the House of Representatives.

This legislation creates a federal fallback rate review process, and grants regulatory authority to block or modify rate increases that are excessive, unjustified, or unfairly discriminatory.

This legislation is a simple, common-sense solution: for States where the insurance commissioner does not have or

use authority to block unfair rate increases, the Secretary of Health and Human Services can do so.

On March 4, 2010, I introduced similar legislation to what I am introducing today. I worked with the Administration and the Finance Committee in putting it together, and with Representative Schakowsky.

President Obama included it in his health reform proposal, but unfortunately, it did not meet the criteria for reconciliation.

The time has come now to take action.

This legislation is necessary in order to protect consumers from the egregious abuses of insurance companies, especially before the majority of the consumer protections included in health reform are fully in place in 2014.

It is disturbing that year after year, health insurance premiums spiral out control, all while insurance companies enjoy increasing profits.

Insurance premiums make up a higher percentage of household income than ever before, meaning that more and more families have to choose between health care and daily living expenses, saving for retirement, and education.

This is unacceptable, and more must be done to protect consumers.

Everyone by now is familiar with the increases that Anthem/Blue Cross, a subsidiary of WellPoint, was set to impose--as much as 39 percent--for 800,000 Californians.

It turns out that Anthem Blue Cross used flawed data to calculate health insurance premium increases to hundreds of thousands of policyholders in California, resulting in increases that were larger than necessary.

According to an independent analysis, the 25 percent average increase proposed by Anthem should have only been 15.2 percent.

What is most disturbing is that Anthem's case is not an aberration. Far from it.

This is not a problem unique to California. In the spring of 2010, health insurance companies pursued rate hikes in a number of States: as much as 60 percent in Illinois; 72 percent in Georgia; 50 percent in New Jersey; and 40 percent in Virginia, to name a few.

The White House reports that premium rates have been rising across the Nation, with substantial geographic variation.

For employer-sponsored family coverage, premiums increased 88 percent in Michigan over the past decade compared to a 145 percent increase in Alaska.

A report by the Center for American Progress Action Fund found that this summer, WellPoint pursued double digit increases in the individual market for 10 other States: Colorado, Connecticut, Georgia, Indiana, Maine, Nevada, New Hampshire, New York, Virginia, and Wisconsin.

The reporting requirements in the health reform law will improve the information available, but right now, comprehensive data on the premium increases insurers are imposing does not exist.

In 2009, despite the worst economic downturn since the Great Depression, the five largest for-profit health insurance companies, WellPoint Inc., United Health Group Inc., Aetna Inc., Humana Inc., and Cigna Corp., set a full-year profit record. These companies saw a 56 percent increase in profits from 2008 to 2009, from $7.7 billion to $12.1 billion.

Furthermore, when many Americans were experiencing double-digit premium increases in 2009, high unemployment, and an average wage growth of only 2 percent, insurance CEOs gave themselves a 167 percent raise.

CEO pay for the 10 largest for-profit health insurance companies was $228.1 million in 2009, up from $85.5 million in 2008.

This doesn't even include the tens of millions more dollars in exercised stock options, and means that these CEOs raked in nearly $1 billion in total compensation.

In the first three months of 2010, the five largest for-profit health insurance companies, WellPoint Inc., United Health Group Inc., Aetna Inc., Humana Inc., and Cigna Corp., recorded a combined net income of $3.2 billion--a 31 percent jump over the same period in 2009.

Meanwhile, large insurance companies now insure 2.8 million fewer Americans than they did on December 31, 2008. An estimated 59.1 million Americans were uninsured in the first quarter of 2010.

The California HealthCare Foundation reported that 6.8 million California residents lack health coverage.

That is 20 percent of the State's residents who are not able to afford health insurance.

All the while, insurance companies have been reducing the amount they spend on actual health care. As profits and CEO pay increased, the amount of money insurers spent on medical care went down.

The top six insurers drove down the portion of premiums spent on medical care. For example, the share of premium dollars that CIGNA spent on medical care decreased 6.4 percent in the second quarter of 2010 compared to the prior year, and Humana's decreased 7.4 percent.

Now, because of legislation in the health reform law, insurance companies have to spend 80-85 percent of premiums on medical care and quality improvement services, not on profits.

This will go a long way to keeping insurance company greed in check, but we need to go farther.

Clearly without additional legislative requirements, health insurance companies are not going to change.

The Department of Health and Human Services recently published proposed rules defining the rate review process. These regulations are a first step towards protecting consumers and keeping insurers in check.

But they fall short of creating a strong rate review system, and rely too heavily on the notion that public disclosure of rates will cause insurance companies to change their behavior.

The regulations do not grant explicit regulatory authority--either State or Federal--to deny, modify, or block rate increases that are excessive, unjustified, or unfairly discriminatory.

The health reform law requires insurance companies to provide justification for unreasonable premium increases to the Secretary of Health and Human Services and post them on their Web sites.

The regulations subject rate increases of 10 percent or greater to additional scrutiny and review, but the State-specific thresholds in 2012 could sanction increases higher than 10 percent.

Transparency and increased scrutiny are steps forward, but there is still this loophole where there is no authority to block or modify even excessive, unjustified, and unfairly discriminatory increases.

This is why I am again introducing my rate review legislation, which will grant this authority.

I believe there needs to be a Federal fallback in States that lack the legal authority, capacity, or resources to conduct strong rate review.

This legislation gives the Secretary of Health and Human Services the authority to block premium or other rate increases that are excessive, unjustified, or unfairly discriminatory.

In some States, insurance commissioners already have that authority, and that is fine. The bill doesn't touch them.

In Maine, for example, the State superintendent of insurance was able to block Anthem's proposed 18.5-percent increase last year. She approved only a 10.9-percent increase.

In at least 17 States, including my own--California--companies are not required to receive prior approval for rate increases before they take effect.

In these States, the Secretary would review potentially excessive, unjustified, or unfairly discriminatory rate increases and take corrective action. This could include blocking an increase, providing rebates to consumers, or adjusting an increase.

Under this proposal, the Secretary would work with the National Association of Insurance Commissioners to implement the rate review process. States already doing this work will continue to do so unabated and unfettered. The legislation would not affect them.

However, for the consumers in the other 17 States with no authority, such as California, protection from unfair rate hikes would be provided.

Given the variation in State rate review authority and process, I think this proposal strikes the right balance.

There is no need for involvement in States with insurance commissioners that are able to protect consumers. So the legislation I am introducing simply

provides Federal protection for consumers who are currently at the mercy of large health insurance companies whose top priority is their bottom line.

This legislation is particularly important given a recent report by the Kaiser Family Foundation showing that many States lack the capacity and resources to conduct adequate rate review, regardless of the State's statutory authority to review rates.

I strongly believe that we need to take action on this. The health reform law made great strides towards holding companies and shareholders accountable for providing health care at a reasonable rate.

However, there is this loophole.

So this bill becomes very necessary. Premiums are increasing every day, and people in many States have no recourse, and no way to know if a particular increase is unfair.

There needs to be a Federal fallback in States that lack the legal authority, capacity, or resources to conduct strong rate review. In States where the Insurance Commissioner is not equipped to review, modify, and block unreasonable rates, my legislation would grant the Secretary of Health and Human Services the authority to do so.

I urge my colleagues to join me in supporting this legislation, the Health Insurance Rate Review Act of 2011, which will close this loophole.

I look forward to working with my colleagues on this important issue.

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

Mr. President, I rise today to introduce the California Desert Protection Act of 2011.

This bill is an effort to plan for the competing uses--such as conservation, off-highway vehicle recreation, development, and military training--that are now being proposed for the desert. These uses of our public lands can coexist through comprehensive planning, but in the absence of such planning, it's quite possible that none will thrive.

During the previous Congress I introduced similar legislation to help preserve pristine desert lands that were donated to the Federal Government for permanent conservation a decade ago, but that more recently have come under threat of development because of a flawed bureaucratic process that failed to protect them.

Over the last year the bill was endorsed by more than 100 organizations and agencies, and it had a hearing in the Energy and Natural Resources Committee.

I am grateful to Senator Bingaman and his staff for working with me to prepare the bill for further action in the Energy and Natural Resources Committee. I believe we can revise the bill to address further the needs of renewable energy developers, the Department of Defense, off-road recreation enthusiasts, local government and others, and I look forward to continuing that effort in the new Congress.

I strongly believe that conservation, renewable energy development and recreation can and must co-exist in the California Desert--and this legislation strikes a carefully conceived balance between these sometimes competing concerns.

The key provisions of this bill would designate two new national monuments--the Mojave Trails and the Sand

to Snow National Monuments; add adjacent lands to the Joshua Tree and Death Valley National Parks and the Mojave National Preserve; designate 5 new BLM wilderness areas and protect 4 important waterways--including the Amargosa River and Deep Creek--as Wild and Scenic Rivers; and enhance recreational opportunities in the desert and ensure that the training needs of the military are met.

This bill is the product of painstaking discussions with key stakeholders including environmental groups, local and State government, off-highway recreation enthusiasts, hunters, cattle ranchers, mining interests, the Department of Defense, wind and solar energy companies, California's public utility companies, and many others. I am grateful for all of their efforts.

The previous version of my bill proposed specific improvements to the Department of the Interior's rules governing the development of renewable energy on public lands. I'm pleased that the Department has instituted a number of new policies over the last year which have greatly improved the process. Consequently, the current bill focuses primarily on conservation, recreation and other important uses of the California desert.

However, I intend to work with my colleagues from the West on separate legislation to further expedite the development of wind and solar energy in California and the West.

The California Desert Protection Act, which was enacted in 1994, was a sweeping piece of legislation aimed at conserving some of the most beautiful and ecologically significant lands in my home State.

The law created Death Valley National Park, Joshua Tree National Park and the Mojave National Preserve, as well as 69 desert wilderness areas managed by the Bureau of Land Management, BLM.

Collectively, it protected more than 7 million acres of desert lands, making it the largest land conservation bill in the lower 48 States in U.S. history.

To this day, it remains one of my proudest accomplishments since joining this body.

Much has changed since the passage of the California Desert Protection Act. Many of the impediments that prevented conservation of other pristine desert lands in the area no longer exist.

For example the Department of Defense concerns with designating some wilderness areas near Fort Irwin have been resolved; many mining areas inside national parks and potential wilderness have closed; grazing allotments on both BLM and National Park Service land have been retired by willing sellers; hundreds of thousands of acres of privately owned land have been donated to or acquired by the Federal Government.

Yet even as these issues were resolved, new challenges have emerged. There are now competing demands over how best to manage hundreds of thousands of acres of public lands in the desert.

Some believe the lands should be used for large-scale solar and wind facilities and transmission lines. Others would like to conserve critical habitat for threatened and endangered species.

Some would like more acreage available for grazing or for off-road recreation.

Finally, some would like to see additional lands made available for military training and base expansion.

Two years ago, I learned that BLM had accepted applications to build vast solar and wind energy projects on former railroad lands previously owned by the Catellus Corporation. These lands had been donated to the Federal Government or acquired with taxpayer funds with the explicit goal of conservation.

Approximately $45 million of private donations--including a $5 million land discount from Catellus Corporation--and $18 million in Federal Land and Water Conservation grants was spent to purchase these lands, with the intent of conserving them in perpetuity.

As the sponsor of the legislative provisions that helped secure the deal to acquire the roughly 600,000 acres of former private land, I found the BLM's actions unacceptable.

We have an obligation to honor our commitment to conserve these lands--and I believe we can still accomplish that goal while also fulfilling California's commitment to develop a clean energy portfolio.

I believe the development of these new cleaner energy sources is vital to addressing climate change, yet we must be careful about selecting where these facilities are located.

I plan to work with senators from Western States to improve the renewable energy permitting process to allow quicker development of renewable energy projects on private and disturbed public land. This effort likely requires separate legislation and improved regulation.

I applaud the Department of the Interior's efforts over the last year to address this problem, especially Interior's proposed designation of 24 solar energy zones encompassing 677,000 acres of public land in 6 Western States. By designating these zones in appropriate areas and streamlining the permitting process for projects proposed there, the Department has helped ensure that sensitive areas of the desert can be preserved.

As BLM finalizes the creation of these Zones and its new Solar Energy Program, I will push BLM to create a development zone in the West Mojave, conduct sufficient study of zones to ensure projects in these locations can be permitted quickly, and establish the program's rules as expeditiously as possible.

I will continue to suggest ways that the U.S. Fish and Wildlife Service can improve permitting on private lands, the Defense Department can welcome development on its bases, and the Forest Service can utilize its own lands. These matters may require legislation.

There is enough land in California's desert to protect the most precious areas of the Mojave and aggressively develop renewable resources where permitting will be rapid. California must develop 15,000 to 20,000 megawatts of renewable power to meet its climate goals by 2020, and the current permitting process will need to vastly improve for the state to meet this goal.

First, this bill will ensure that hundreds of thousands of acres of land donated to the federal government for conservation will be protected by creating the Mojave Trails National Monument. This new monument would cover approximately 941,000 acres of federal land, which includes approximately 266,000 acres of the former Catellus-owned railroad lands along historic Route 66. I visited the area and was amazed by the beauty of the massive valleys, pristine dry lakes, and rugged mountains.

In addition to its iconic sweeping desert vistas and majestic mountain ranges, this area of the Eastern Mojave also contains critical wildlife corridors linking Joshua Tree National Park and the Mojave National Preserve. It also encompasses hundreds of thousands of acres designated as areas of critical environmental concern, critical habitat for the threatened desert tortoise, and ancient lava bed flows and craters. It is surrounded by more than a dozen BLM wilderness areas.

The BLM would be given the authority to both conserve the monument lands, and also to maintain existing recreational uses, including hunting, vehicular travel on open roads and trails, camping, horseback riding and rockhounding.

The bill also creates an advisory committee to help develop and oversee the implementation of the monument management plan. It would be comprised of representatives from local, state and federal government, conservation and recreation groups, and local Native American tribes.

Before I go on to the other conservation provisions in the bill, I would like to address one important issue--and that is what should be done about some of the proposed renewable energy development projects proposed for lands included in this monument.

Although it is true that the monument will prevent further consideration of some applications to develop solar and wind energy projects on former Catellus lands or adjoining lands in the monument, it is important to note that of the proposals in question, not a single one has been granted a permit, nor is a single one under review at the California Energy Commission or under formal NEPA, National Environmental Policy Act, review at BLM.

To ensure that creation of the monument does not unnecessarily harm the

firms that worked in good faith and invested substantial time and resources to produce renewable energy in California, the legislation will offer these companies an opportunity to relocate their projects to federal renewable energy zones currently being developed by the Department of the Interior.

Additionally, the monument would not prevent the construction or expansion of necessary transmission lines critical to linking renewable energy generation facilities with the electricity grid.

Second, the bill would establish the ``Sand to Snow National Monument,'' encompassing 134,000 acres of land from the desert floor in the Coachella Valley up to the top of Mount San Gorgonio, the highest peak in Southern California.

The boundaries of this second, smaller new monument would include two Areas of Critical Environmental Concern: Big Morongo Canyon and Whitewater Canyon, the BLM and U.S. Forest Service San Gorgonio Wilderness, the Wildlands Conservancy's Pipe's Canyon and Mission Creek Preserves, and additional public and private conservation lands, including two wildlife movement corridor areas connecting the Peninsular Ranges with the Transverse Ranges.

This area is truly remarkable, and would arguably be the most environmentally diverse national monument in the country. It serves as the intersection of three converging ecological systems--the Mojave Desert, the Colorado Desert, and the San Bernardino mountains--and is one of the most important wildlife corridors in Southern California.

This monument designation would protect 23.6 miles of the Pacific Crest Trail and the habitat for approximately 240 species of migrating and breeding birds, the second highest density of nesting birds in the United States. It also serves as a home and a crucial migration corridor for animals traveling between Joshua Tree National Park, the oasis at Big Morongo, and the higher elevations of the San Bernardino Mountains.

I'd like to make one additional point, and that is that despite its ecological significance, this area is not particularly well-known-- largely because it is managed by a number of distinct entities, including the BLM, Forest Service, National Park Service and private preserves and conservation agencies. So, the monument designation would help to attract more attention to one of California's natural gems.

Third, the bill establishes new wilderness areas and allows more appropriate use of lands currently designated as Wilderness Study Areas.

The 1994 California Desert Protection Act extended wilderness protection to many areas in the desert, yet several areas near Fort Irwin were designated as wilderness study areas in order to allow the base to expand.

Now that Fort Irwin's expansion is complete, it is time to consider these areas for permanent wilderness designation.

The bill protects approximately 250,000 acres of BLM land as wilderness in five areas. These areas contain some of the most pristine and rugged landscapes in the California desert.

Beyond Fort Irwin, the bill also expands wilderness areas in Death Valley National Park, 90,000 acres, and the San Bernardino National Forest, 4,300 acres, inside the Sand to Snow National Monument created by this bill.

The bill also releases 126,000 acres of land from their existing wilderness study area designation in response to requests from local government and recreation users. This will allow the land to be made available for other purposes, including recreational off-highway vehicle use on designated routes.

Fourth, this bill would create the Vinagre Wash Special Management Area.

The agreed-upon designation for this area in Imperial County, near the Colorado River, was reached after careful discussion with key stakeholders.

Although the land possesses some wilderness characteristics, there are also competing interests. The Navy Seals currently use some of this area for occasional training. Additionally, many local residents enjoy touring the rolling hills in the area by jeep.

Through the combined efforts of conservation groups, local residents and county government, and the Department of Defense, a compromise conservation designation was developed.

For the land known as the Vinagre Wash, the bill will create a ``special management area'' covering 76,000 acres, including 12,000 acres of former railroad lands donated to the federal government.

Of these, 49,000 acres are designated as potential wilderness and only become permanent wilderness if and when the Department of Defense determines these lands are no longer needed for Navy Seal training.

This designation will permit the area to continue to be accessed by vehicles and be used for camping, hiking, mountain biking, sightseeing, and off-highway vehicle use on designated routes and protect tribal cultural assets in the area.

Fifth, the bill adds to or designates four new Wild and Scenic Rivers, totaling 76 miles in length. These designations will ensure the rivers remain clean and free-flowing and that their immediate environments are preserved. These beautiful waterways are Deep Creek and the Whitewater River in and near the San Bernardino National Forest, as well as the Amargosa River and Surprise Canyon Creek near Death Valley National Park.

Sixth, the bill adds approximately 74,000 acres of adjacent lands to the three National Parks established by the 1994 California Desert Protection Act: 41,000 acres in Death Valley National Park. This includes former mining areas where the claims have been retired and a narrow strip of BLM land between National Park and Defense Department boundaries that has made BLM management difficult; almost 30,000 acres in the Mojave National Preserve. This land was not included in the original Monument because of the former Viceroy gold mine. However, the mining operations ceased several years ago and the reclamation process is nearly complete. Additionally, a 2007 analysis by the Interior Department recommended that this area would be suitable to add to the Preserve; 2,900 acres in Joshua Tree National Park. This includes multiple small parcels of BLM land identified for disposal on its periphery. Transferring this land to the Park Service would help protect Joshua Tree by preserving these undeveloped areas that border residential communities.

Seventh, the bill designates new lands as Off-Highway Vehicle Recreation Areas.

One of the key goals I have strived for in this bill is to find balance to ensure that the many different needs and uses in the desert are accommodated with the least possible conflict. Some of the most frequent visitors to the desert are the off-highway recreation enthusiasts.

In California alone, there are over 1 million registered off-highway vehicles, many of which can be found exploring thousands of miles of desert trails or BLM designated open areas.

However, in order to meet military training needs, the Marine Corps is studying the potential expansion of Marine Corps Air Ground Combat Center at Twentynine Palms into Johnson Valley, the largest OHV area in the country. I strongly support providing our troops with the best possible training, but if the Marines need to expand the base into Johnson Valley, this could have potentially resulted in the loss of tens of thousands of acres of OHV recreation lands.

In 2009 I met with Major General Eugene Payne, Assistant Deputy Commandant for Installations and Logistics, and Brigadier General Melvin Spiese, Commanding General, Training and Education Command, to discuss this issue, and I am very grateful for their efforts to consider base expansion options that would preserve much of Johnson Valley for recreation.

As the result of those meetings, the Marine Corps has committed to studying an alternative that would allow for a portion of Johnson Valley to be used exclusively for military training, another portion to be used exclusively for continued OHV recreation and a third area for joint use. While the environmental review process must first be completed, I am hopeful that this option will prevail for the benefit of the Marines and recreational users of Johnson Valley.

The lesson learned from Johnson Valley is that, despite the vast size of the California desert, there are relatively

few areas dedicated to OHV recreation, and even those areas face increasing competition from other types of uses. These areas are important not only to the hundreds of thousands visitors who enjoy them, but also to the local economy that depends on their tourist dollars. Additionally, by protecting these areas, we also protect conservation areas by providing appropriate places for OHV recreation.

This bill will designate five existing OHV areas in the Mojave desert as permanent OHV areas, providing off-highway groups some certainty that these uses will be protected as much as conservation areas. Collectively, these areas could be as much as 314,000 acres, depending on what, if any, of Johnson Valley is ultimately needed by the Marines.

This section of the bill also requires the Secretary of the Inerior to conduct a study to determine which, if any, lands adjacent to these recreation areas would be suitable for addition. This will help make up for some of the lost acres in Johnson Valley should the Marines decide to expand there.

Finally, this bill includes other key provisions that address various challenges and opportunities in the California desert, including state land exchanges. There are currently about 370,000 acres of state lands spread across the California desert in isolated 640 acre parcels. Because many of these acres are inside national parks, wilderness, the proposed monuments or conservation areas, they are largely unusable. The bill seeks to remedy that problem by requiring the Department of the Interior to develop and implement a plan with the state to complete the exchange of these lands for other BLM or GSA owned property in the next ten years. These land exchanges will help consolidate the state lands into larger, more usable areas that could potentially provide the state with viable sites for renewable energy development, off-highway vehicle recreation or other commercial purposes.

Military activities. The bill ensures the right of the Department of Defense to conduct low-level overflights over wilderness, national parks and national monuments.

Climate change and wildlife corridors. The bill requires the Department of the Interior to study the impact of climate change on California desert species migration, incorporate the study's results and recommendations into land use management plans, and consider the study's findings when making decisions granting rights of way for projects on public lands.

Tribal uses and interests. The bill requires the Secretary to ensure access for tribal cultural activities within national parks, monuments, wilderness and other areas designated within the bill. It also requires the Secretary to develop a cultural resources management plan to protect a sacred tribal trail along the Colorado River between southern Nevada and the California-Baja border.

Prohibited uses of donated and acquired lands. In order to ensure that donated and acquired Catellus lands outside the Mojave Trails National Monument are maintained for conservation, the bill prohibits their use for development, mining, off-highway vehicle use, except designated routes, grazing, military training and other surface disturbing activities. The Secretary of the Interior is authorized to make limited exceptions in cases where it is deemed in the public interest, but comparable lands would have to be purchased and donated to the federal government as mitigation for lost acreage.

All of these provisions, when taken together, would serve to complement the lasting conservation established by the California Desert Protection Act--while ensuring that other important local uses are maintained in appropriate areas.

Though I have lived in or near San Francisco for most of my life, over the years I have come to truly appreciate California's sweeping desert landscapes.

I remember my first visits to the desert years ago. It was treated like a waste dump. It was full of abandoned cars. Old appliances littered the landscape.

But we have worked very hard to clean it up.

We have worked to make sure that the vast vistas and pristine desert habitat are respected by humanity, and that we give to our children a healthier, more beautiful desert than we inherited.

But if we are to remain successful in the long run, we must not only protect the desert land itself, we must also protect the broader environment from the ravages of climate change, and we must offer economic opportunity to those who live in these areas.

That is the purpose of this legislation. There are many places in the California desert where development and employment are essential and appropriate.

But there are also places that future generations will thank us for setting aside.

I have worked painstakingly with stakeholders to ensure that this legislation balances sometimes competing needs.

This bill, if enacted, will have a positive and enduring impact on the landscape of the Southern California desert by conserving pristine areas while meeting the needs of all desert stakeholders.

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

Mr. President, today I am introducing the FISA Sunsets Extension Act of 2011 to extend the three expiring provisions of the Foreign Intelligence Surveillance Act--the authority to conduct, subject to court order, so-called ``roving wiretaps,'' ``lone wolf'' surveillance, and collection of business records. This legislation will extend these three authorities, otherwise set to expire on February 28, to December 31, 2013.

The bill will also change the expiration date of the intelligence collection authorities provided in the FISA Amendments Act of 2008 so they, too, last until the end of 2013.

I firmly believe that the United States Government needs these authorities to help prevent against future terrorist attacks against our nation and to collect vital intelligence insights into the capabilities and intentions of our adversaries. We remain a nation under threat and need to remain vigilant in our defense.

Let me briefly describe the three expiring provisions.

First, court-ordered roving authority is directed against foreign intelligence targets who attempt to thwart FISA surveillance by such actions as rapidly changing cell phones. In a September 2009 letter, the Department of Justice reported to Congress that this authority ``has proven an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders.''

Second, lone wolf authority allows for court-ordered collection against non-U.S. persons who engage in international terrorism but for whom an association with a specific international terrorist group has not yet been identified. In the last Congress, when the Department of Justice advised that it had not yet been necessary for the Government to use this authority, the Department stated that it could foresee circumstances in which a terrorist target had not actually contacted a terrorist group or was known to have severed his association from a terrorist group.

From the events of the last several years, we have all become aware that we may be attacked by a lone, unaffiliated terrorist--or one whose links to

terrorist groups are only clear after an individual is apprehended.

Third, the collection of business records pursuant to court orders. This provision allows the Government to require the production of ``tangible things'' in order to obtain foreign intelligence information as part of an investigation. In the September 2009 letter, the Department of Justice urged reauthorization of that authority because ``[t]he absence of such authority could force the FBI to sacrifice key intelligence opportunities.''

I cannot elaborate into the use of these authorities in this unclassified context. I can say, however, that as the Chairman of the Senate Select Committee on Intelligence and as one who reviews the intelligence on the threats we face, we remain a nation under attack. Providing the authorities to collect intelligence to identify and prevent terrorist attacks on the homeland remains necessary.

It is also important to allow Congress, in the future, to conduct a complete review of FISA provisions. By synchronizing the dates when different pieces of the law expire, Congress can consider changes to FISA at once, prior to the end of 2013.

In closing, l would like to assure all Members of the Senate and the American public that extending these sunsets does not shield them from oversight. There is a system of review and oversight in place that consists of the FISA Court, Inspectors General in the Department of Justice and in the intelligence community, regular oversight reviews by the National Security Division at the Department of Justice, a new Director of Compliance at the National Security Agency, and reporting to the Senate and House Intelligence and Judiciary Committees. As Chairman of the Senate Select Committee and as a member of the Judiciary Committee, I can assure colleagues that the Senate has placed, and will continue to place, oversight of the Government's surveillance authorities as a major priority.

I urge my colleagues to support this legislation.

Mr. President, I am pleased to introduce the Coral Reef Conservation Amendments Act, which I also introduced in the 111th Congress. This critical bill reauthorizes and strengthens the Coral Reef Conservation Act of 2000, a program that I was pleased to originally sponsor in the 106th Congress establishing the Coral Reef Conservation Program at the National Oceanic and Atmospheric Administration, NOAA.

Coral reefs are among the oldest and most economically and biologically important ecosystems in the world. They provide habitat for more than one million diverse aquatic species, a natural barrier for protection from coastal storms and erosion, and are a potential source of treatment for many of the world's diseases. From a commerce perspective, reef-supported tourism is a $30 billion industry worldwide, and the commercial value of United States fisheries from coral reefs is more than $100 million.

However, our coral reef ecosystems face many threats including pollution, climate change and coral bleaching, and overfishing to name a few. Coral reefs cover only one-tenth of one percent of the ocean floor, yet provide habitat for more than twenty-five percent of all marine species.

The original Coral Reef Conservation Act of 2000 recognized the need to preserve, sustain and restore the condition of these valuable coral reef ecosystems. The Coral Reef Conservation Amendments Act of 2011 would strengthen NOAA's ability to comprehensively address threats to coral reefs and empower the agency with tools to ensure that damage to our coral reef ecosystems is prevented or effectively mitigated. It also establishes consistent practices for maintaining data, products, and information, and promotes the widespread availability and dissemination of that environmental information.

Finally, the bill allows the Secretary to further develop partnerships with foreign governments and international organizations-- partnerships that are critical not only to the understanding of our coral reef ecosystems, but also to their protection and restoration.

Thank you and I would urge you to support this important legislation to continue supporting NOAA's leadership role in coral reef conservation.

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

Mr. President, today I rise to recognize the need for inclusion of pharmacists in the National Health Services Corps, NHSC, student loan repayment program. It is imperative that our Nation focus its efforts on increased access to affordable, high quality healthcare for our Nation's underserved communities. Today's pharmacist graduates with a professional doctorate degree. My home State of Hawaii is home to our only school of pharmacy program located at the University of Hawaii at Hilo and this year will mark the school's very first graduating class. Pharmacists are vital to our intent of increasing access to patient-centered, team-based healthcare for all individuals. They collaborate with providers across the continuum of care to improve medication-use related outcomes, provides access to prevention and wellness screening that, among others, can reduce tobacco use and increase immunization rates all of which support provider effectiveness and organizational efficiencies. The integration of the pharmacist across the continuum of care helps increase access to primary and preventive care and allows for better management of chronic disease. Pharmacists support prescribers by focusing on the management of medications preventing adverse events that lead to avoidable emergency room visits and hospital admissions. This collaborative effort among healthcare providers helps improve clinical and economic outcomes and increases patient satisfaction with their care.

The current approach of recruiting and retaining primary care practitioners may limit access to robust patient-centered, team-based care by patients in underserved communities. Today over 88 percent of pharmacy students borrow over $107,000 to help them pay for their education. The incorporation of comprehensive pharmacy services in these particular communities is a primary objective of the Health Resources and Services Administration patient-safety and clinical pharmacy services collaborative. Making pharmacists eligible to participate in NHSC loan repayment program will ensure that the reorganization of our healthcare system envisioned in legislation, federal action, and community-based models all benefit from patient- centered, team-based models of care that integrate comprehensive pharmacy services.

I urge you to consider the benefits of including pharmacists in the NHSC student loan repayment program.

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

I am pleased to introduce my Commercial Seafood Consumer Protection Act, Seafood Safety Act. The Seafood Safety Act will strengthen the partnership between the Secretary of Commerce, the Secretary of Health and Human Services, HHS, the Secretary of the Department of Homeland Security, DHS, the Federal Trade Commission, FTC, and other appropriate Federal agencies, to coordinate Federal activities for ensuring that commercially distributed seafood in the United States meets the food quality and safety requirements of Federal law. The bill provides for no new jurisdiction and does not alter any existing jurisdiction given to FDA or any other agency. The bill does not include any authorization of appropriations, but seeks only to strengthen existing partnerships and share information.

The bill remains largely unchanged since I first introduced it in the 110th Congress, but this version, like the one I introduced in the 111th, incorporates the FTC as an additional partner since they have broad existing authority for consumer and interstate commerce fraud issues.

Specifically, the bill requires the Secretaries of Commerce, HHS, DHS, and the FTC to enter into agreements as necessary to strengthen cooperation on seafood safety, seafood labeling, and seafood fraud. Those agreements must address seafood testing and inspection; data standardization for seafood names; data coordination for the exportation, transportation, sale, harvest, or trade of seafood; seafood labeling compliance assurance; and information-sharing for observed non-compliance. The bill also increases the number of laboratories certified to inspection standards of the FDA and allows the Secretary of Commerce to increase the number and capacity of NOAA laboratories responsible for seafood safety testing. It allows for an increase in the percentage of seafood import shipments tested and inspected to improve detection of violations. Finally, the bill allows the Secretary of HHS to refuse entry of seafood imports from countries with known violations, and also allows the Secretary to permit individual seafood shipments from recognized and properly certified exporters.

For the safety of the American people, I remain committed to the Seafood Safety Act and look forward to continuing to work to ensure its passage.

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

Mr. President, I am pleased to introduce the International Fisheries Stewardship and Enforcement Act, which I also introduced in the 111th. This bill would harmonize the enforcement provisions of the U.S. statutes for implementing international fisheries agreements to strengthen international fisheries enforcement.

Specifically it would grant the National Oceanic and Atmospheric Administration, NOAA, and the U.S. Coast Guard authority to implement international fisheries laws, expand their authorities in carrying out investigations and enforcement activities, and establish interference with investigations as a prohibited act. It would also amend the enforcement provisions of statutes for implementing international fisheries agreements to conform to the Magnuson-Stevens Fishery Conservation and Management Act, while increasing both civil and criminal penalties for violating international fisheries laws.

The bill also authorizes the Secretary of Commerce to maintain and make public a list of vessels engaged in illegal, unregulated, and unreported, IUU, fishing and authorize appropriate action against listed vessels, which will hopefully allow for strong strides in our fight against illegal activity.

Finally, by creating an International Cooperation and Assistance Program that will provide assistance for international capacity building efforts, training, outreach, and education, it is my hope that we are able to more-successfully combat IUU fishing and promote international marine conservation.

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

There be no objection, the text of the bill was ordered to be printed

Mr. President, foreign registered ships now carry 97 percent of the imports and exports moving in United States international trade. These foreign vessels are held to lower standards than United States registered ships, and are virtually untaxed. Their costs of operation are, therefore, lower than United States ship operating costs, which explains their 97 percent market share.

Seven years ago, in order to help level the playing field for United States-flag ships that compete in international trade, Congress enacted, under the American Jobs Creation Act of 2004, Public Law 108- 357, Subchapter R, a ``tonnage tax'' that is based on the tonnage of a vessel, rather than taxing international income at a 35 percent corporate income tax rate. However, during the House and Senate conference, language was included, which states that a United States vessel cannot use the tonnage tax on international income if that vessel also operates in United States domestic commerce for more than 30 days per year.

This 30-day limitation dramatically limits the availability of the tonnage tax for those United States ships that operate in both domestic and international trade and, accordingly, severely hinders their competitiveness in foreign commerce. It is important to recognize that ships operating in United States domestic trade already have significant cost disadvantages. Specifically, they are built in higher priced United States shipyards; do not receive Maritime Security Payments, even when operated in international trade; and are owned by United States-based American corporations. The inability of these domestic operators to use the tonnage tax for their international service is a further, unnecessary burden on their competitive position in foreign commerce.

When windows of opportunity present themselves in international trade, American tax policy and maritime policy should facilitate the participation of these American-built ships. Instead, the 30-day limit makes them ineligible to use the tonnage tax, and further handicaps American vessels when competing for international cargo. Denying the tonnage tax to coastwise qualified ships further stymies the operation of American built ships in international commerce, and further exacerbates America's 97 percent reliance on foreign ships to carry its international cargo.

These concerns were of sufficient importance that in December 2006 Congress repealed the 30-day limit on domestic trading--but only for approximately 50 ships operating in the Great Lakes. These ships primarily operate in domestic trade on the Great Lakes, but also carry cargo between the United States and Canada in international trade, Section 415 of P.L. 109-432, the Tax Relief and Health Care Act of 2006.

The identifiable universe of remaining ships other than the Great Lakes

ships that operate in domestic trade, but that may also operate temporarily in international trade, totals 13 United States flag vessels. These 13 ships normally operate in domestic trades that involve Washington, Oregon, California, Hawaii, Alaska, Florida, Mississippi, and Louisiana. In the interest of providing tax equity to the United States corporations that own and operate these 13 vessels, my bill would repeal the tonnage tax 30-day limit on domestic operations and enable these vessels to utilize the tonnage tax on their international income so they receive the same treatment as other United States flag international operations. I stress that, under my bill, these ships will continue to pay the normal 35 percent United States corporate tax rate on their domestic income.

Repeal of the tonnage tax's 30-day limit on domestic operations is a necessary step toward providing tax equity between United States flag and foreign flag vessels. I strongly urge the tax writing committees of the U.S. Congress to give this legislation their expedited consideration and approval.

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

Mr. President, the legislation I am reintroducing today will extend to qualified teaching hospital support organizations the existing debt-financed safe harbor rule. Congress enacted that rule to support the public service activities of tax-exempt schools, universities, pension funds, and consortia of such institutions. Our teaching hospitals require similar support.

As a result, for-profit hospitals are moving from older areas to affluent locations where residents can afford to pay for treatment. These private hospitals typically have no mandate for community service. In contrast, non-profit hospitals must fulfill a community service requirement. They must stretch their resources to provide increased charitable care, update their facilities, and maintain skilled staffing resulting in closures of non-profit hospitals due to this financial strain.

The problem is particularly severe for teaching hospitals. Non-profit hospitals provide nearly all the postgraduate medical education in the United States. Post-graduate medical instruction is by nature not profitable. Instruction in the treatment of mental disorders and trauma is especially costly.

Despite their financial problem, the Nation's non-profit hospitals strive to deliver a very high level of service. A study in the December 2006 issue of Archives of International Medicine had surveyed hospital's quality of care in four areas of treatment. It found that non-profit hospitals consistently outperformed for-profit hospitals. The study also found that teaching hospitals had a higher level of performance in treatment and diagnosis, and that investments in technology and staffing leads to better care. In addition, it recommended that alternative payments and sources of payments be considered to finance these improvements.

The success and financial constraints of non-profit teaching hospitals is evident in work of the Queen's Health Systems in my State. This 151-year-old organization maintains the largest, private, nonprofit hospital in Hawaii. The Queen's Health Systems serve as the primary clinical teaching facility for the University of Hawaii's medical residency program in medicine, general surgery, orthopedic surgery, pathology, psychiatry, and is a clinical teaching facility for obstetrics-gynecology. It conducts educational and training programs for nurses and allied health personnel. The Queen's Health Systems operate the only trauma unit as well as the chief behavioral health program in the State. It maintains clinics throughout Hawaii, health programs, for Native Hawaiians, and a small hospital in the rural, economically depressed island of Molokai. Furthermore, the Queen's Health Systems annually provides millions of dollars in uncompensated health services. To help pay for these community benefits, the Queen's Health Systems, as other nonprofit teaching hospitals, relies significantly on income from its endowment.

In the past, the Congress has allowed tax-exempt schools, colleges, universities, and pension funds to invest their endowment in real estate so as to better meet their financial needs. Under the tax code, these organizations can incur debt for real estate investments without triggering the tax on unrelated business activities.

If the Queen's Health Systems were part of a university, it could borrow without incurring an unrelated business income tax. Not being part of a university, however, a teaching hospital and its support organization run into the tax code's debt financing prohibition. Non- profit teaching hospitals have the same if not more pressing needs as that of universities, schools, and pension trusts. The same safe harbor rule should be extended to teaching hospitals.

My bill would allow the support organizations for qualified teaching hospitals to engage in limited borrowing to enhance their endowment income. The proposal for teaching hospitals is actually more restricted than current law for schools, universities and pension trusts. Under safeguards developed by the Joint Committee on Taxation staff, a support organization for a teaching hospital cannot buy and develop land on a commercial basis. The proposal is tied directly to the organization endowment. The staff's revenue estimates show that the provision with its general application will help a number of teaching hospitals.

The U.S. Senate has several times before acted favorably on this proposal. The Senate adopted a similar provision in H.R. 1836, the Economic Growth and Tax Relief Act of 2001. The House conferees on that bill, however, objected that the provision was unrelated to the bill's focus on individual tax relief and the conference deleted the provision from the final legislation. Subsequently, the Finance Committee included the provision in H.R. 7, the CARE Act of 2002, and in S. 476, the CARE Act of 2003, which the Senate passed. In a previous Congress' S. 6, the

Marriage, Opportunity, Relief, and Empowerment Act of 2005, which the Senate leadership introduced, also included the proposal.

As the Senate Finance Committee's hearings show, substantial health needs would go unmet if not for our charitable hospitals. It is time for the Congress to assist the Nation's teaching hospitals in their charitable, educational service.

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

Mr. President, nearly 16 years ago I stood before you to introduce a bill ``to provide an opportunity for the Pottawatomi Nation in Canada to have the merits of their claims against the United States determined by the United States Court of Federal Claims.''

That bill was introduced as Senate Resolution 223, which referred the Pottawatomi's claim to the Chief Judge of the U.S. Court of Federal Claims and required the Chief Judge to report back to the Senate and provide sufficient findings of fact and conclusions of law to enable the Congress to determine whether the claim of the Pottawatomi Nation in Canada is legal or equitable in nature, and the amount of damages, if any, which may be legally or equitably due from the United States.

Over a decade ago, the Chief Judge of the Court of Federal Claims reported back that the Pottawatomi Nation in Canada has a legitimate and credible legal claim. Thereafter, by settlement stipulation, the United States has taken the position that it would be ``fair, just and equitable'' to settle the claims of the

ottawatomi Nation in Canada for the sum of $1,830,000. This settlement amount was reached by the parties after seven years of extensive, fact-intensive litigation. Independently, the court concluded that the settlement amount is ``not a gratuity'' and that the ``settlement was predicated on a credible legal claim.'' Pottawatomi Nation in Canada, et al. v. United States, Cong. Ref. 94-1037X at 28, Ct. Fed. Cl., September 15, 2000, Report of Hearing Officer.

The bill I introduce today is to authorize the appropriation of those funds that the United States has concluded would be ``fair, just and equitable'' to satisfy this legal claim. If enacted, this bill will finally achieve a measure of justice for a tribal nation that has for far too long been denied.

For the information of our colleagues, this is the historical background that informs the underlying legal claim of the Canadian Pottawatomi.

The members of the Pottawatomi Nation in Canada are one of the descendant groups--successors-in-interest--of the historical Pottawatomi Nation and their claim originates in the latter part of the 18th century. The historical Pottawatomi Nation was aboriginal to the United States. They occupied and possessed a vast expanse in what is now the States of Ohio, Michigan, Indiana, Illinois, and Wisconsin. From 1795 to 1833, the United States annexed most of the traditional land of the Pottawatomi Nation through a series of treaties of cession--many of these cessions were made under extreme duress and the threat of military action. In exchange, the Pottawatomi were repeatedly made promises that the remainder of their lands would be secure and, in addition, that the United States would pay certain annuities to the Pottawatomi.

In 1829, the United States formally adopted a Federal the policy of removal; an effort to remove all Indian tribes from their traditional lands east of the Mississippi River to the west. As part of that effort, the government increasingly pressured the Pottawatomi to cede the remainder of their traditional lands, some five million acres in and around the city of Chicago, and remove their nation west. For years, the Pottawatomi steadfastly refused to cede the remainder of their tribal territory. Then in 1833, the United States, pressed by settlers seeking more land, sent a Treaty Commission to the Pottawatomi with orders to extract a cession of the remaining lands. The Treaty Commissioners spent 2 weeks using extraordinarily coercive tactics-- including threats of war--in an attempt to get the Pottawatomi to agree to cede their territory. Finally, those Pottawatomi who were present relented and on September 26, 1933, they ceded their remaining tribal estate through what would be known as the Treaty of Chicago. Seventy- seven members of the Pottawatomi Nation signed the Treaty of Chicago. Members of the ``Wisconsin Band'' were not present and did not assent to the cession.

In exchange for their land, the Treaty of Chicago provided that the United States would give to the Pottawatomi 5 million acres of comparable land in what is now Missouri. The Pottawatomi were familiar with the Missouri land, aware that it was similar to their homeland. However, the Senate refused to ratify that negotiated agreement and unilaterally switched the land to five million acres in Iowa. The Treaty Commissioners were sent back to acquire Pottawatomi assent to the Iowa land. All but seven of the original 77 signatories refused to accept the change even with promises that if they were dissatisfied ``justice would be done.''

Nevertheless, the Treaty of Chicago was ratified as amended by the Senate in 1834. Subsequently, the Pottawatomi sent a delegation to evaluate the land in Iowa. The delegation reported back that the land was ``not fit for snakes to live on.''

While some Pottawatomi moved westward, many of the Pottawatomi, particularly the Wisconsin Band, whose leaders never agreed to the Treaty, refused to do so. By 1836, the United States began to forcefully remove Pottawatomi who remained in the east with devastating consequences. As is true with many other American Indian tribes, the forced removal westward came at great human cost. Many of the Pottawatomi were forcefully removed

by mercenaries who were paid on a per capita basis government contract. Over one-half of the Indians removed by these means died en route. Those who reached Iowa were almost immediately removed further to inhospitable parts of Kansas against their will and without their consent.

After learning of these conditions, many of the Pottawatomi, including most of the Wisconsin Band, vigorously resisted forced removal. To avoid Federal troops and mercenaries, much of the Wisconsin Band ultimately found it necessary to flee to Canada. They were often pursued to the border by government troops, government-paid mercenaries or both. Official files of the Canadian and United States governments disclose that many Pottawatomi were forced to leave their homes without their horses or any of their possessions other than the clothes on their backs.

By the late 1830s, the government refused payment of annuities to any Pottawatomi groups that had not removed west. In the 1860s, members of the Wisconsin Band--those still in their traditional territory and those forced to flee to Canada--petitioned Congress for the payment of their treaty annuities promised under the Treaty of Chicago and all other cession treaties. By the Act of June 25, 1864, 13 Stat. 172, Congress declared that the Wisconsin Band did not forfeit their annuities by not removing and directed that the share of the Pottawatomi Indians who had refused to relocate to the west should be retained for their use in the United States Treasury. H.R. Rep. No. 470, 64th Cong., p. 5, as quoted on page 3 of memo dated October 7, 1949. Nevertheless, much of the money was never paid to the Wisconsin Band.

In 1903, the Wisconsin Band--most of whom now resided in three areas, the States of Michigan and Wisconsin and the Province of Ontario-- petitioned the Senate once again to pay them their fair portion of annuities as required by the law and treaties, Sen. Doc. No. 185, 57th Cong., 2d Sess. By the act of June 21, 1906, 34 Stat. 380, Congress directed the Secretary of the Interior to investigate claims made by the Wisconsin Band and establish a roll of the Wisconsin Band Pottawatomi that still remained in the east. In addition, Congress ordered the Secretary to determine ``the [Wisconsin Bands] proportionate shares of the annuities, trust funds, and other moneys paid to or expended for the tribe to which they belong in which the claimant Indians have not shared, [and] the amount of such monies retained in the Treasury of the United States to the credit of the clamant Indians as directed the provision of the Act of June 25, 1864.''

In order to carry out the 1906 Act, the Secretary of Interior directed Dr. W.M. Wooster to conduct an enumeration of Wisconsin Band Pottawatomi in both the United States and Canada. Dr. Wooster documented 2,007 Wisconsin Pottawatomi: 457 in Wisconsin and Michigan and 1,550 in Canada. He also concluded that the proportionate share of annuities for the Pottawatomi in Wisconsin and Michigan was $477,339 and that the proportionate share of annuities due the Pottawatomi Nation in Canada was $1,517,226. Congress thereafter enacted a series of appropriation Acts from June 30, 1913 to May 29, 1928 to satisfy most of the money owed to those Wisconsin Band Pottawatomi residing in the United States. However, the Wisconsin Band Pottawatomi who resided in Canada were never paid their share of the tribal funds.

Since that time, the Pottawatomi Nation in Canada has diligently and continuously sought to enforce their treaty rights, although until this Congressional reference, they had never been provided their day in court. In 1910, the United States and Great Britain entered into an agreement for the purpose of dealing with claims between both countries, including claims of Indian tribes within their respective jurisdictions, by creating the Pecuniary Claims Tribunal. From 1910 to 1938, the Pottawatomi Nation in Canada diligently sought to have their claim heard in this international forum. Overlooked for more pressing international matters of the period, including the intervention of World War I, the Pottawatomi then came to the U.S. Congress for redress of their claim.

In 1946, the Congress waived its sovereign immunity and established the Indian Claims Commission for the purpose of granting tribes their long-delayed day in court. The Indian Claims Commission Act, ICCA, granted the Commission jurisdiction over claims such as the type involved here. In 1948, the Wisconsin Band Pottawatomi from both sides of the border brought suit together in the Indian Claims Commission for recovery of damages. Hannahville Indian Community v. U.S., No. 28 (Ind. Cl. Comm. Filed May 4, 1948). Unfortunately, the Indian Claims Commission dismissed Pottawatomi Nation in Canada's part of the claim ruling that the Commission had no jurisdiction to consider claims of Indians living outside territorial limits of the United States. Hannahville Indian Community v. U.S., 115 Ct. Cl. 823, 1950. The claim of the Wisconsin Band residing in the United States that was filed in the Indian Claims Commission was finally decided in favor of the Wisconsin Band by the U.S. Claims Court in 1983. Hannahville Indian Community v. United States, 4 Ct. Cl. 445, 1983. The Court of Claims concluded that the Wisconsin Band was owed a member's proportionate share of unpaid annuities from 1838 through 1907 due under various treaties, including the Treaty of Chicago and entered judgment for the American Wisconsin Band Pottawatomi for any monies not paid. Still the Pottawatomi Nation in Canada was excluded because of the jurisdictional limits of the ICCA.

Undaunted, the Pottawatomi Nation in Canada came to the Senate, and after careful consideration, we finally gave them their long-awaited day in court through the Congressional reference process. The court has now reported back to us that their claim is meritorious and that the payment that this bill would make constitutes a ``fair, just and equitable'' resolution to this claim.

The Pottawatomi Nation in Canada has sought justice for over 150 years. They have done all that we asked in order to establish their claim. Now it is time for us to finally live up to the promise our government made so many years ago. It will not correct all the wrongs of the past, but it is a demonstration that this government is willing to admit when it has left an unfulfilled obligation, and that the United States is willing to do what we can to see that justice, so long delayed, is not now denied.

Finally, I would just note that the claim of the Pottawatomi Nation in Canada is supported through specific resolutions by the National Congress of American Indians, the oldest, largest and most- representative tribal organization here in the United States, the Assembly of First Nations, which includes all recognized tribal entities in Canada, and each and every of the Pottawatomi tribal groups that remain in the United States today.

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

Mr. President, I rise to introduce a bill that would establish a Native American Economic Advisory Council. This Council's primary duties would be to consult, coordinate, and make recommendations to Federal agencies for the purpose of improving the substandard economic conditions that exist in our Native communities.

Currently, there is no Council, and despite the Federal Government's ``trust'' relationship with Native American tribes, Native Americans themselves continue to rank lowest in quality of life standings. As a nation we need to preserve our Native communities as they are rich with cultural significance and living history.

Native communities are considered ``emerging economies'' that have stalled because of the current economic situation. This bill is an attempt to keep these communities moving by educating, empowering, and encouraging our future Native American leaders to create sustainable economic growth programs in their own communities.

In Hawaii, the cost of living ranges from 30 percent to 60 percent higher than the national average. We have to start planning for economic stability in the future and this bill provides an opportunity to do so. I look forward to working with my colleagues on reinvesting in our Nation's future.

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

Mr. President, I rise to introduce a bill that would provide authority for the establishment of branch banking facilities on Indian reservations so that the Federally-chartered Native American Bank could enable access to financial services to Indian tribes and their citizens.

Many years ago, as part of my service as Chairman of the Senate Indian Affairs Committee, I met with tribal leaders to discuss the challenges of economic development in Indian country. At that time, I suggested that they might give consideration to a means by which tribal governments could pool their resources and thereby provide the capital that other tribal governments could employ on a short-term loan basis to undertake reservation-based projects that held the potential of stimulating economic growth in their tribal communities.

The tribal leaders with whom I met were very interested in this idea, and in the ensuing years, went forward and established the Native American Bank--which is headquartered in Denver--but continues to manage its first affiliated bank on the Blackfeet Indian Reservation in Montana.

As my colleagues know, there are few financial institutions located either on or near Indian reservations, and sadly, there is evidence that some financial institutions have found it apparently necessary to either charge very high rates that they associate with the risk of doing business in Indian country, or to deny financial assistance altogether.

The Native American Bank has stepped into that latter void and has been providing meaningful financial services to tribal governments and their citizens for a number of years.

This bill contains amendments to the McFadden Act that have been carefully sculpted to address only this narrow expansion of capacity on the part of financial institutions serving Indian country.

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

Mr. President, I am reintroducing legislation today that would direct the Secretary of the Army to determine whether certain nationals of the Philippine Islands performed military service on behalf of the United States during World War II.

Our Filipino veterans fought side by side with Americans and sacrificed their lives on behalf of the United States. This legislation would confirm the validity of their claims and further allow qualified individuals the opportunity to apply for military and veterans benefits that, I believe, they are entitled to. As this population becomes older, it is important for our Nation to extend its firm commitment to the Filipino veterans and their families who participated in making us the great Nation that we are today.

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

Mr. President, I rise today in support of the Commission on Wartime Relocation and Internment of Latin Americans of Japanese Descent Act.

The story of U.S. citizens taken from their homes on the west coast and confined in camps is a story that was made known after a fact- finding study by a Commission that Congress authorized in 1980. That study was followed by a formal apology by President Reagan and a bill for reparations. Far less known, and indeed, I myself did not initially know, is the story of Latin Americans of Japanese descent taken from their homes in Latin America, stripped of their passports, brought to the U.S., and interned in American camps.

This is a story about the U.S. government's act of reaching its arm across international borders, into a community that did not pose an immediate threat to our Nation, in order to use them, devoid of passports or any other proof of citizenship, for exchange with Americans with Japan. Between the years 1941 and 1945, our Government, with the help of Latin American officials, arbitrarily arrested persons of Japanese descent from streets, homes, and workplaces. Approximately 2,300 undocumented persons were brought to camp sites in the U.S., where they were held under armed watch, and then held in reserve for prisoner exchange. Those used in an exchange were sent to Japan, a foreign country that many had never set foot on since their ancestors' immigration to Latin America.

Despite their involuntary arrival, Latin American internees of Japanese descent were considered by the Immigration and Naturalization Service as illegal entrants. By the end of the war, some Japanese Latin Americans had been sent to Japan. Those who were not used in a prisoner exchange were cast out into a new and English-speaking country, and subject to deportation proceedings. Some returned to Latin America. Others remained in the U.S., because their country of origin in Latin America refused their re-entry, because they were unable to present a passport.

When I first learned of the wartime experiences of Japanese Latin Americans, it seemed unbelievable, but indeed, it happened. It is a part of our national history, and it is a part of the living histories of the many families whose lives are forever tied to internment camps in our country.

The outline of this story was sketched out in a book published by the Commission on Wartime Relocation and Internment of Civilians formed in 1980. This Commission had set out to learn about Japanese Americans. Towards the close of their investigations, the Commissioners stumbled upon this extraordinary effort by the U.S. Government to relocate, intern, and deport Japanese persons formerly living in Latin America. Because this finding surfaced late in its study, the Commission was unable to fully uncover the facts, but found them significant enough to include in its published study, urging a deeper investigation.

I rise today to introduce the Commission on Wartime Relocation and Internment of Latin Americans of Japanese Descent Act, which would establish a fact-finding Commission to extend the study of the 1980 Commission. This Commission's task would be to determine facts surrounding the U.S. government's actions in regards to Japanese Latin Americans subject to a program of relocation, internment, and deportation. I believe that examining this extraordinary program would give finality to, and complete the account of Federal actions to detain and intern civilians of Japanese ancestry.

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

Mr. President, I rise to introduce a bill to reauthorize Title VIII of the Native American Housing Assistance and Self- Determination Act. Title VIII provides authority for the appropriation of funds for the construction of low-income housing for Native Hawaiians and further provides authority for access to loan guarantees associated with the construction of housing to serve Native Hawaiians.

Three studies have documented the acute housing needs of Native Hawaiians--which include the highest rates of overcrowding and homelessness in the State of Hawaii. Those same studies indicate that inadequate housing rates for Native Hawaiians are amongst the highest in the Nation.

The reauthorization of Title VIII will support the continuation of efforts to assure that the native people of Hawaii may one day have access to housing opportunities that are comparable to those now enjoyed by other Americans.

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

Mr. President, today I am reintroducing a bill which is of great importance to a group of patriotic Americans. This legislation is designed to end space-available travel privileges on military aircraft to those who have been totally disabled in the service of our country.

Currently, retired members of the Armed Services are permitted to travel on a space-available basis on non-scheduled military flights within the continental United States, and on scheduled overseas flights operated by the Military Airlift Command. My bill would provide the same benefits for veterans with 100 percent service-connected disabilities.

We owe these heroic men and women who have given so much to our country a debt of gratitude. Of course, we can never repay them for the sacrifices they have made on behalf of our Nation, but we can surely try to make their lives more pleasant and fulfilling. One way in which we can help is to extend military travel privileges to these distinguished American veterans. I have received numerous letters from all over the country attesting to the importance attached to this issue by veterans. Therefore, I ask that my colleagues show their concern and join me in saying ``thank you'' by supporting this legislation.

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

Mr. President, today I am reintroducing legislation to enable those former prisoners of war who have been separated honorably from their respective services and who have been rated as having a 30 percent service-connected disability to have the use of both the military commissary and post exchange privileges. While I realize it is impossible to adequately compensate one who has endured long periods of incarceration at the hands of our Nation's enemies, I do feel this gesture is both meaningful and important to those concerned because it serves as a reminder that our nation has not forgotten their sacrifices.

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

Mr. President, in our effort to accommodate many Americans by making Memorial Day the last Monday in May, we have lost sight of the significance of this day to our nation. My bill would restore Memorial Day to May 30 and authorize our flag to fly at half mast on that day. In addition, this legislation would authorize the President to issue a proclamation designating Memorial Day and Veterans Day as days for prayer and ceremonies. This legislation would help restore the recognition our veterans deserve for the sacrifices they have made on behalf of our Nation.

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

Mr. Chairman, I rise today to introduce the Preserve Access to Affordable Generics Act. This bipartisan legislation will dramatically reduce prescription drug costs by preventing one of the most egregious, anti-consumer tactics ever devised to keep generic drugs off the market.

This amendment would combat ``pay-for-delay'' agreements between brand name and generic drug companies which delay entry of low-cost generic competition. These pay-for-delay agreements are estimated by the FTC to cost consumers $3.5 billion each year, and are estimated by the CBO estimates to cost the federal government more than $2.8 billion over the next decade in higher drug reimbursement payments.

In 2008, $235 billion were spent on prescription drugs in the United States. Generic drugs play a crucial role in containing rising prescription drug costs, by offering consumers therapeutically identical alternatives to brand-name drugs, at a significantly reduced cost. Studies have shown that generic competition to brand name drugs can reduce drug prices by as much as 80 percent. However, in recent years generic entry has frequently been blocked by anti-competitive, anti-consumer agreements between brand-name and generic drug manufacturers that limit, delay, or otherwise prevent competition from generic drugs.

In pay-for-delay agreements, a brand-name drug manufacturer settles patent litigation by paying off a generic competitor with large amounts of cash, or other valuable consideration to stay off the market until expiration--or a time close to expiration--of the brand-name patent. For example, in 2006, the CEO of Cephalon, which makes the sleep disorder pill Provigil, praised the deals his company made with four generic drug-makers to keep generic versions of Provigil off the market until 2012. ``We were able to get six more years of patent protection,'' he said. ``That's $4 billion in sales that no one expected.'' Unfortunately, that $4 billion came from the pockets of American consumers.

At their core, pay-for-delay agreements permit brand-name drug companies to pay off competitors not to compete. The brand name drug company wins because it reaps the profits from eliminating competition. The generic drug company wins because they get paid millions of dollars to do nothing more than drop their patent challenge. But consumers and the American taxpayer loses, to the tune of billions of dollars in higher drug costs every year.

Agreements between competitors, like these, are the most nefarious type of antitrust violation. Unfortunately, when the FTC has challenged ``pay-for-delay'' agreements, courts have favored big industry interests over consumers. Courts have wrongly concluded that this type of basic antitrust violation is immune from antitrust law because it involves the settlement of a patent challenge. In other words, it is permissible for competitors to collude to when it involves a patented drug and in order to keep lower cost drugs out of consumers' medicine cabinets. These misguided court rulings are what make passage of our legislation so vital.

For years, we have seen the use of anticompetitive agreements increase. From 2000 to 2004, there were twenty settlements of drug patent litigation, but we saw no pay-for-delay agreements because drug companies assumed they violated antitrust law. But, these settlements became all too prevalent following three courts of appeals decisions in 2005 which effectively found them to be per se legal and prevented the FTC from taking action on behalf of consumers against these settlements.

In the 2 years following these 2005 court decisions, 28 out of 61 patent settlements had provisions in which the brand name drug company made payments to the generic manufacturer in exchange for the generic manufacturer agreeing to delay entry of generic competition. Clearly, pay-for-delay agreements are not necessary to settle a case because during that same time, 33 cases settled without delaying entry to consumers in exchange for a payment.

Last fall, the FTC released a report which found a record 19 pay-for- delay settlements in fiscal year 2009, the highest ever recorded in a single year. This report convincingly demonstrates the danger these deals pose to consumers. Each of these deals will lead to higher drug costs for millions of consumers. Each of these deals cost the Federal Government large sums in taxpayer money in higher drug reimbursement costs. Each of these deals deprive consumers of needed drug competition. The time for action to stop these anti-consumer, anticompetitive back room deals is now.

Our legislation passed the Judiciary Committee last Congress with a strong bipartisan majority. The Judiciary Committee made several changes to the legislation as it is was introduced in the 111th Congress, and the legislation I am introducing today includes all of these changes. I believe the current version of this legislation represents a well balanced approach to this problem. Under my bill, these settlement agreements will be presumed to be illegal. However, the FTC will need to pursue legal action prior to these agreements being found illegal, and the drug companies will have an opportunity to convince the Judge why these agreement are not in fact anticompetitive. If found illegal, the FTC will have the authority to assess civil penalties up to three times the profits gained by the drug companies.

I believe this measure strikes the right balance. By presuming these agreements to be illegal, and armed with strong civil penalties, this bill will deter drug companies from entering into anti-competitive and anti-consumer ``pay-for-delay'' settlements in the first place. By giving the drug companies a hearing before a neutral tribunal, the drug companies will have their day in court to go forward with those agreements which truly do not harm competition.

The evidence is clear. These ``pay-for-delay'' agreements between brand name and generic drug companies deny consumers the benefits of generic drug competition and costs consumers and the Federal Government billions of dollars. My legislation will give the FTC strong remedies to prevent these agreements when it concludes they harm competition. Millions and millions of Americans that struggle to pay their prescription drug costs and who need low priced generic alternatives are awaiting action on this amendment. I urge my colleagues support for the Preserve Access to Affordable Generics Act.

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

Mr. President, I rise today to introduce legislation essential to restoring competition to the nation's crucial freight railroad sector. Freight railroads are essential to shipping a myriad of vital goods, everything from coal used to generate electricity to grain used for basic foodstuffs. But for decades the freight railroads have been insulated from the normal rules of competition followed by almost all other parts of our economy by an outmoded and unwarranted antitrust exemption. So today I am introducing, along with my colleagues, the Railroad Antitrust Enforcement Act of 2011. This bipartisan legislation will eliminate the obsolete antitrust exemptions that protect freight railroads from competition. This legislation is identical to the legislation that was reported out of the Judiciary Committee in the last Congress by a unanimous 15-0 vote.

Our legislation will eliminate unwarranted and outmoded antitrust exemptions that protect freight railroads from competition and result in higher prices to millions of consumers every day. Consolidation in the railroad industry in recent years has resulted in only four Class I railroads providing nearly 90 percent of the Nation's freight rail transportation, as measured by revenue. The harmful result of this industry concentration for railroad shippers is well documented. A 2006 General Accounting Office Report found that shippers in many geographic areas ``may be paying excessive rates due to a lack of competition in these markets.'' These unjustified cost increases cause consumers to suffer higher electricity bills because a utility must pay for the high cost of transporting coal, result in higher prices for goods produced by manufacturers who rely on railroads to transport raw materials, and reduce earnings for American farmers who ship their products by rail and raise food prices paid by consumers.

A recent staff report, issued September 15, 2010, of the Committee on Commerce, Science, and Transportation also makes clear how railroads have benefited from the unique combination of deregulation and large- scale antitrust immunity, to the detriment of rail shippers and consumers. This Report--titled ``The Current State of the Class I Freight Rail Industry''--stated that ``[t]he four Class I railroads that today dominate the U.S. rail shipping market are achieving returns on revenue and operating ratios that rank them among the most profitable businesses in the U.S. economy.'' The four largest railroads nearly doubled their collective profit margins in the last decade to 13 percent ranking the railroad industry the fifth most profitable industry as ranking by Fortune magazine.

Increased concentration and lack of antitrust scrutiny have had clear price effects--according to the Commerce Committee Report, since 2004, ``Class I railroads have been raising prices by an average of 5 percent a year above inflation.'' The recent Commerce Committee Report concluded that ``Class I freight railroads have regained the pricing power they lacked in the 1980s, and are now some of the most highly profitable businesses in the U.S. economy.'' Given the industry's concentration and pricing power, the case for full fledged application of the antitrust laws is plain.

The ill-effects of railroad industry consolidation are exemplified in the case of ``captive shippers''--industries served by only one railroad. Over the past several years, these captive shippers have faced spiking rail rates. They are the victims of monopolistic practices and price gouging by the single railroad that serves them, price increases which they are forced to pass along into the price of their products, and ultimately, to consumers. And in many cases, the ordinary protections of antitrust law are unavailable to these captive shippers--instead, the railroads are protected by a series of outmoded exemptions from the normal rules of antitrust law to which all other industries must abide.

These unwarranted antitrust exemptions have put the American consumer at risk, and in Wisconsin, victims of a lack of railroad competition abound. From Dairyland Power Cooperative in La Crosse to Wolf River Lumber in New London, companies in my state are feeling the crunch of years of railroad consolidation. To help offset a 93 percent increase in shipping rates in 2006, Dairyland Power Cooperative had to raise electricity rates by 20 percent. The reliability, efficiency, and affordability of freight rail have all declined, and Wisconsin consumers feel the pinch.

And similar stories exist across the country. We held a hearing at the Antitrust Subcommittee in the 110th Congress which detailed numerous instances of anti-competitive conduct by the dominant freight railroads and at which railroad shippers testified as to the need to repeal the outmoded and unwarranted antitrust exemptions which left them without remedies. Dozens of organizations, unions and trade groups affected by monopolistic railroad conduct endorsed the Railroad Antitrust Enforcement Act in the last Congress. Supporters of the legislation include 20 state Attorneys General, the National Association of Regulatory Utility Commissioners, NARUC, the Consumers Federation of America, Consumers Union, the American Farm Bureau Federation, American Chemistry Council, the American Corn Growers Association, the American Forest and Paper Association, the American Public Power Association, and the American Bar Association Antitrust Section.

The current antitrust exemptions protect a wide range of railroad industry conduct from scrutiny by governmental antitrust enforcers. Railroad mergers and acquisitions are exempt from antitrust law and are reviewed solely by the Surface Transportation Board. Railroads that engage in collective ratemaking are also exempt from antitrust law. Railroads subject to the regulation of the Surface Transportation Board are also exempt from private antitrust lawsuits seeking the termination of anti-competitive practices via injunctive relief. Our bill will eliminate these exemptions.

No good reason exists for them. While railroad legislation in recent decades--including most notably the Staggers Rail Act of 1980-- deregulated much railroad rate setting from the oversight of the Surface Transportation Board, these obsolete antitrust exemptions remained in place, insulating a consolidating industry from obeying the rules of fair competition. And there is no reason to treat railroads any differently from dozens of other regulated industries in our economy that are fully subject to antitrust law--whether the telecommunications sector regulated by the FCC, or the aviation industry regulation by the Department of Transportation, just name just two examples.

Our bill will bring railroad mergers and acquisitions under the purview of

the Clayton Act, allowing the federal government, state attorneys general and private parties to file suit to enjoin anti-competitive mergers and acquisitions. It will restore the review of these mergers to the agencies where they belong--the Justice Department's Antitrust Division and the Federal Trade Commission. It will eliminate the exemption that prevents FTC's scrutiny of railroad common carriers. It will eliminate the antitrust exemption for railroad collective ratemaking. It will allow state attorneys general and other private parties to sue railroads for treble damages and injunctive relief for violations of the antitrust laws, including collusion that leads to excessive and unreasonable rates. This legislation will force railroads to play by the rules of free competition like all other businesses.

Significantly, our bill will not affect in way the jurisdiction of the Surface Transportation Board to regulate freight railroads. It will in no way limit or alter the authority of the STB; the STB will continue to exercise full jurisdiction over the railroad industry.

In sum, by clearing out this thicket of outmoded antitrust exemptions, railroads will be subject to the same laws as the rest of the economy. Government antitrust enforcers will finally have the tools to prevent anti-competitive transactions and practices by railroads. Likewise, private parties will be able to utilize the antitrust laws to deter anti-competitive conduct and to seek redress for their injuries.

It is time to put an end to the abusive practices of the Nation's freight railroads. On the Antitrust Subcommittee, we have seen that in industry after industry, vigorous application of our Nation's antitrust laws is the best way to eliminate barriers to competition, to end monopolistic behavior, to keep prices low and quality of service high. The railroad industry is no different. All those who rely on railroads to ship their products--whether it is an electric utility for its coal, a farmer to ship grain, or a factory to acquire its raw materials or ship out its finished product--deserve the full application of the antitrust laws to end the anti-competitive abuses all too prevalent in this industry today. I urge my colleagues support the Railroad Antitrust Enforcement Act of 2011.

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

Mr. President, I rise today to introduce legislation essential to consumers receiving the best prices on every product from electronics to clothing to groceries. My bill, the Discount Pricing Consumer Protection Act, will restore the nearly century old rule that it is illegal under antitrust law for a manufacturer to set a minimum price below which a retailer cannot sell the manufacturer's product, a practice known as ``resale price maintenance'' or ``vertical price fixing.'' This bill wil ensure that consumers can obtain discount prices at the very time they need them the most.

In June 2007, overturning a 96-year-old precedent, a narrow 5-4 Supreme Court majority in the Leegin case turned the Sherman Act on its head to overturn this basic rule of the marketplace which has served consumers well for nearly a century. My bill--identical to legislation I introduced in the last two Congresses--will correct this misinterpretation of antitrust law and restore the per se ban on vertical price fixing. My bill has been endorsed by the National Association of Attorneys General, 38 state attorneys general, as well as numerous antitrust experts, including former FTC Chairman Pitofsky and former FTC Commissioner Harbour, and the leading consumer groups, including Consumers Union, the Consumers Federation of America, and the American Antitrust Institute. This legislation passed the Judiciary Committee last year.

The reasons for this legislation are compelling. Allowing manufacturers to set minimum retail prices will threaten the very existence of discounting and discount stores, and lead to higher prices for consumers. For nearly a century the rule against vertical price fixing permitted discounters to sell goods at the most competitive price. Many credit this rule with the rise of today's low price, discount retail giants--stores like Target, Best Buy, Walmart, and the internet sites Amazon and EBay, which offer consumers a wide array of highly desired products at discount prices.

Ample evidence exists of the pernicious effect of allowing vertical price fixing. For nearly 40 years until 1975 when Congress passed the Consumer Goods Pricing Act, Federal law permitted States to enact so- called ``fair trade'' laws legalizing vertical price fixing. Studies the Department of Justice conducted in the late 1960s indicated that prices were between 18-27 percent higher in the States that allowed vertical price fixing than the States that had not passed such ``fair trade'' laws, costing consumers at least $2.1 billion per year at that time.

Given the tremendous economic growth in the intervening decades, the likely harm to consumers if vertical price fixing were permitted is even greater today. In his dissenting opinion in the Leegin case, Justice Breyer estimated that if only 10 percent of manufacturers engaged in vertical price fixing, the volume of commerce affected today would be $300 billion, translating into retail bills that would average $750 to $1,000 higher for the average family of four every year.

The experience of the last three years since the Leegin decision has begun to confirm our fears regarding the dangers from permitting vertical price fixing. The Wall Street Journal has reported that more than 5,000 companies have implemented minimum pricing policies. A new business--known as ``internet monitors''--has materialized for companies that scour the Internet in search of retailers selling products at a bargain. When such bargain sellers are detected, the manufacturer is alerted so that they can demand the seller

end its discounting. There have been many reports of everything from consumer electronics and video games to baby products and toys, rental cars and bicycles being subject to minimum retail pricing policies.

Defenders of the Leegin decision argue that today's giant retailers such as Wal-Mart, Best Buy or Target can ``take care of themselves'' and have sufficient market power to fight manufacturer efforts to impose retail prices. Whatever the merits of that argument, I am particularly worried about the effect of this new rule permitting minimum vertical price fixing on the next generation of discount retailers. If new discount retailers can be prevented from selling products at a discount at the behest of an established retailer worried about the competition, we will imperil an essential element of retail competition so beneficial to consumers.

In overturning the per se ban on vertical price fixing, the Supreme Court in Leegin announced this practice should instead be evaluated under what is known as the ``rule of reason.'' Under the rule of reason, a business practice is illegal only if it imposes an ``unreasonable'' restraint on competition. The burden is on the party challenging the practice to prove in court that the anti-competitive effects of the practice outweigh its justifications. In the words of the Supreme Court, the party challenging the practice must establish the restraint's ``history, nature and effect.'' Whether the businesses involved possess market power ``is a further, significant consideration'' under the rule of reason.

In short, establishing that any specific example of vertical price fixing violates the rule of reason is an onerous and difficult burden for a plaintiff in an antitrust case. Parties complaining about vertical price fixing are likely to be small discount stores or consumers with limited resources to engage in lengthy and complicated antitrust litigation. These plaintiffs are unlikely to possess the facts and complicated economic evidence necessary to make the extensive showing necessary to prove a case under the ``rule of reason.'' In the words of former FTC Commissioner Pamela Jones Harbour, applying the rule of reason to vertical price fixing ``is a virtual euphemism for per se legality.''

Our Antitrust Subcommittee conducted two extensive hearings into the Leegin decision and the likely effects of abolishing the ban on vertical price fixing in the last two Congresses. Both former FTC Chairman Robert Pitofsky and former FTC Commissioner Harbour strongly endorsed restoring the ban on vertical price fixing. Marcy Syms, CEO of the Syms discount clothing stores, and a senior executive of the Burlington Coat Factory discount chain testified as well, both citing the likely dangers to the ability of discounters such as Syms to survive after abolition of the rule against vertical price fixing. Ms. Syms also stated that ``it would be very unlikely for her to bring an antitrust suit'' challenging vertical price fixing under the rule of reason because her company ``would not have the resources, knowledge or a strong enough position in the market place to make such action prudent.'' Our examination of this issue has produced compelling evidence for the continued necessity of a ban on vertical price fixing to protect discounting and low prices for consumers.

The Discount Pricing Consumer Protection Act will accomplish this goal. My legislation is quite simple and direct. It would simply add one sentence to Section 1 of the Sherman Act--the basic provision addressing combinations in restraint of trade--a statement that any agreement with a retailer, wholesaler or distributor setting a price below which a product or service cannot be sold violates the law. No balancing or protracted legal proceedings will be necessary. Should a manufacturer enter into such an agreement it will unquestionably violate antitrust law. The uncertainty and legal impediments to antitrust enforcement of vertical price fixing will be replaced by simple and clear legal rule--a legal rule that will promote low prices and discount competition to the benefit of consumers every day.

In the last few decades, millions of consumers have benefited from an explosion of retail competition from new large discounters in virtually every product, from clothing to electronics to groceries, in both ``big box'' stores and on the Internet. Our legislation will correct the Supreme Court's abrupt change to antitrust law, and will ensure that today's vibrant competitive retail marketplace and the savings gained by American consumers from discounting will not be jeopardized by the abolition of the ban on vertical price fixing. 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, today I am reintroducing the Fast Track to College Act, a bill to support the expansion of dual enrollment programs and Early College High Schools. Such programs allow young people to earn up to two years of college credit while also earning their high school diploma.

I believe the key to our country's economic recovery is a strong investment in our young people. By investing in education, we ensure that today's students are well prepared to compete in a global economy.

Far too many of our students are falling behind in school, and as students struggle with their studies or drop out of school altogether, their futures and the health of our workforce are at risk. Young people who drop out of high school are at increased risk for negative outcomes such as unemployment and incarceration, as well as reliance on public assistance for healthcare, housing, and other basic needs--outcomes that have high costs for their communities and our economy. Conversely, adults who earn bachelor's degrees earn on average two-thirds more than high school graduates and $1 million more than high school dropouts over their working lives.

Studies show many youth drop out because they don't see a practical reason to complete high school or go on to get a college degree. Maybe they don't think they can get into college, don't think they can afford to go, or just don't see the point in going. Dual enrollment programs and Early College High Schools address these issues by showing students that they can succeed in college courses while saving time and money. They don't drop out because they can see that they are on track to a degree--and ultimately a job. By earning college credit, and possibly even an Associate's Degree, students are better prepared after high school to continue their education or pursue career training.

That is why I ask my colleagues to support this bill, which provides competitive grant funding for Early College High Schools and other dual enrollment programs that allow low-income students to earn college credit and a high school diploma at the same time. These programs put students on the fast track to college and increase the odds that they will not only graduate, but also go on to continue their education and secure higher-paying jobs.

This bill authorizes $140,000,000 for competitive 6-year grants to schools, with priority given to schools that serve low-income students. The funding will help defray the costs of implementing new programs, strengthening existing programs, and providing students and teachers with the resources they need to succeed in early college high schools and other dual enrollment programs. The bill also includes $10 million for states to provide support for these programs, as well as an evaluation component so we can measure the program's effectiveness.

I am proud to sponsor this legislation, with the support of Senator Brown of Ohio, because I believe this investment in our schools will help solve the dropout crisis and secure America's future by ensuring that all young people can compete in today's global economy. Further, I believe that all children, regardless of income or other factors, deserve equal opportunities to fulfill their potential, and it is both morally and fiscally responsible for this Congress to invest in high- quality educational programs that help our youth reach their potential.

I urge my colleagues to support this important legislation.

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

Mr. President, I rise today to introduce three bills that I believe will be important for our small businesses, especially our smaller manufacturers. In each of these bills, there is an emphasis on keeping our research and development and manufacturing here in the United States, rewarding our innovative American businesses with predictable credits and equitable treatment, and creating good paying jobs.

The first bill, S. 155, is designed to incentivize keeping jobs in the United States by increasing the existing Research & Development tax credit for companies that produce most of their goods domestically. The Domestic Jobs Innovation Bonus Act would create a bonus R&D Credit that increases incrementally to reward a higher percentage of domestic production. To earn the bonus credit, a company would need to make at least half of their products domestically--and for doing so would receive an additional 2 percentage points on top of the existing R&D credit. The credit would max out at a 10 percentage point increase for companies with 90 percent to 100 percent of their receipts from domestic production. For example, a company with 100 percent domestic production that would normally receive a 20 percent R&D tax credit would receive a 30 percent credit under this proposal.

To be clear, this isn't a tax credit that will benefit every company that has a presence in the United States. It

may not benefit many large, multi-national corporations, but those companies will still have access to the existing R&D Credit, which I support as well.

It is my hope that a credit like this could convince a company that is deciding whether to manufacture and research here or abroad, to choose America.

I am introducing a second bill, S. 156, with Senators Corker and Alexander that would establish a uniform energy efficiency descriptor for all water heaters and improve the testing methods by which that descriptor is determined. Currently, water heaters are lumped into two categories under two federal statutes, based on arbitrary gallon capacity and energy input ratings. ``Smaller'' water heaters are covered by the National Appliance Energy Conservation Act, NAECA, and must be rated using an energy factor or EF rating. ``Larger'' water heaters are within the scope of the Energy Policy Act, EPACT, and must be rated using a thermal efficiency or TE rating. Not only do the testing methods differ, but a manufacturer is forbidden to place an EF rating on a TE-sized unit, and vice-versa.

This legislation would direct the Department of Energy to work with industry stakeholders to develop a uniform energy efficiency descriptor that applies to all sizes of water heaters. It also would develop a test method to accurately determine that descriptor for all types of water heaters. It is my hope that the water heating manufacturing community can develop and implement the new test method and descriptor that will eliminate confusion and enable consumers and business owners to make informed purchasing decisions on water heaters. In today's tough economy, energy bills continue to stretch family budgets. Families can save money and conserve energy if they have accurate information about how much energy home appliances consume.

The difference between EF and TE ratings was based on the assumption that smaller units were exclusively for residential uses while larger units were exclusively for commercial purposes. Due to advances in manufacturing technology, the assumptions underlying the earlier dividing line are no longer accurate. In fact, both larger and smaller units made by leading U.S. manufacturers are used in residences without regard to which Federal law applies. Yet, Federal legislation continues to be written by taking this distinction into account.

In particular, these American companies are affected by the current disparate energy standards because it can disadvantage some of their products. Establishing one standard will help breakdown a patchwork of incentives and efficiency designations at both the state and federal level. For example, water heaters rated with a TE rating are not eligible for the ENERGY STAR label, and accordingly, not eligible for many state appliance rebate programs that link their incentives to an ENERGY STAR designation. This bill will make it so all products are competing on a level playing field for all incentives.

In addition to the energy savings that this bill will provide, it is also about the jobs potential for companies making these cutting-edge products. A globally-recognized cluster of water technology companies is emerging in the City of Milwaukee and surrounding counties. An important part of this effort is innovative water heater technologies. Incentivizing these products through predictable and equitable standards is vital to these companies.

The third bill, S. 157, would extend the Section 48 investment tax credit to solar light pipe technology. This is a promising new technology that could save our businesses money on their electricity bills, and reduce our overall energy usage--two goals on which we can all agree. Light pipes collect natural light, and then through the use of sensor technology, automatically dim the other lights in a building--thereby using less electricity for the same amount of light.

Despite the clear benefits of the technology, high cost has kept many businesses from using light pipes. Adding this technology to Section 48 will provide that boost that these businesses need to justify the expense.

I became aware of this technology because one of the companies that makes it is based in Manitowoc, Wisconsin. This company, Orion Energy Systems, employs about 250 people, and has been growing even during this tough economic time. In addition to light pipes, Orion makes energy efficient lighting systems, and partners with wind and solar power companies to significantly reduce the energy costs for many of our largest and most distinguished companies. Orion technology has been deployed at more than 6,000 facilities, and has worked with 126 of the Fortune 500 companies. Since 2001, Orion customers have saved more than $1 billion in electricity costs by displacing nearly 600 megawatts.

This credit will help Orion and companies like it create thousands of jobs through the production of the technology as well as installing it.

I urge my colleagues to support all of these bills, and I hope that they are enacted as part of an agenda that focuses on innovation, job creation, and shoring up our vital manufacturing sector.

Mr. President, the United States of America has long been the world leader in invention and innovation. That leadership has propelled our economic growth, but we cannot

remain complacent while expecting to stay on top.

A Newsweek study last year found that only 41 percent of Americans believe that the United States is staying ahead of China on innovation. A Thompson Reuters analysis has already predicted that China will outpace the United States in patent filings this year. China, in fact, has a specific plan not just to overtake the United States this year in patent applications, but to more than quadruple its patent filings over the next 5 years.

That is astonishing, until considering that China has been modernizing its patent laws and promoting innovation while the United States has failed to keep pace. It has now been nearly 60 years since Congress last acted to reform American patent law. We can no longer wait.

Today, I am reintroducing bipartisan patent reform legislation that is the culmination of three Congresses worth of bipartisan, bicameral work, including eight hearings in the Senate alone. The Patent Reform Act of 2011 is structured on legislation first introduced in the House by Chairman Smith and Mr. Berman in 2005. The legislation will accomplish three important goals, which have been at the center of the patent reform debate: improve the application process by transitioning to a first-inventor-to-file system; improve the quality of patents issued by the USPTO by introducing several quality-enhancement measures; and provide more certainty in litigation.

In many areas that were highly contentious when the patent reform debate began, the courts have stepped in to act. Their decisions reflect the concerns heard in Congress that questionable patents are too easily obtained and too difficult to challenge. The courts have moved the law in a generally positive direction, more closely aligned with the text of the statutes.

Most recently, the Federal Circuit aggressively moved to constrain run-away damage awards, which has plagued the patent system by basing awards on unreliable numbers, untethered to the reality of licensing decisions. As the court continues to move in the right direction, it is more apparent than ever that the gatekeeper compromise on damages we have worked to reach with Senator Feinstein and others is what is needed to ensure an award of a reasonable royalty is not artificially inflated or based on irrelevant factors.

The courts have addressed issues where they can, but in some areas, only Congress can take the necessary steps. The Patent Reform Act will both speed the application process and, at the same time, improve patent quality. It will provide the USPTO with the resources it needs to work through its application backlog, while also providing for greater input from third parties to improve the quality of patents issued and that remain in effect.

High quality patents are the key to our economic growth. They benefit both patent owners and users, who can be more confident in the validity of issued patents. Patents of low quality and dubious validity, by contrast, enable patent trolls and constitute a drag on innovation. Too many dubious patents also unjustly cast doubt on truly high quality patents.

The Patent Reform Act provides the tools the USPTO needs to separate the inventive wheat from the chaff. It will allow our inventors and innovators to flourish. The Department of Commerce recently issued a report indicating that these reforms will create jobs without adding to the deficit. The Obama administration supports these efforts, as do industries and stakeholders from all sectors of the patent community. Congressional action can no longer be delayed.

Innovation and economic development are not uniquely Democrat or Republican objectives, so we worked together to find the proper balance for America--for our economy, for our inventors, for our consumers.

Thomas Freidman wrote not too long ago in The New York Times that the country which ``endows its people with more tools and basic research to invent new goods and services [] is the one that will not just survive but thrive down the road. . . . We might be able to stimulate our way back to stability, but we can only invent our way back to prosperity.''

Reforming our patent system will stimulate the American economy through structural changes, rather than taxpayer dollars. I look forward to working with all Senators and our counterparts in the House, who have also made this a bipartisan priority, to ensure that this is the year we make our patent system reward inventors and provide certainty to users.

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

Mr. President, I rise today with my good friends and neighbors from New England--Senators Susan Collins and Olympia Snowe from Maine--to introduce a bill that would allow Vermont and Maine to set the appropriate truck-weight standards on the interstates in their states.

For too long, Vermont and Maine have been at a competitive disadvantage while our next-door neighbors in New York, New Hampshire, Massachusetts, and Quebec have enjoyed the economic benefits that come with higher highway truck weight limits. Due to these restrictions, the heaviest truck traffic in Vermont and Maine must travel over smaller and narrower roadways, creating significant safety concerns for pedestrians and motorists and putting pressure on our already overburdened secondary roads and bridges.

That is why Senator Collins and I included language in the 2010 transportation funding bill to implement pilot programs that allowed heavier trucks on interstates in Vermont and Maine for one year and studied the impacts of this policy change on highway safety, bridge and road durability, commerce, truck volumes, and energy use in Vermont.

During the past year I have heard from a number of Vermont truckers, business owners, and state and local officials who support extending the pilot program because of the economic and safety benefits they saw when the trucks were on the Interstates. Most importantly, many Vermonters reported a significant reduction of heavy truck traffic in our downtowns and villages.

Unfortunately, last month the leadership on the other side of the aisle

blocked consideration of an omnibus budget bill that included a provision Senator Collins and I authored to extend the Vermont and Maine truck weight pilot programs for another year. This sudden and senseless reversal of a previous commitment to support the bill led to the end of the Vermont and Maine pilot programs in December.

As a result the heaviest trucks in our states have been forced to divert back to secondary roads--and the negative economic impact of these trucks is once again being felt in downtowns and villages throughout Vermont and Maine.

I am pleased to join with Senators Collins and Snowe in introducing this bipartisan bill today. It will stop overweight trucks from having to rumble through our historic villages and downtowns, and it will better protect our citizens and our ailing transportation infrastructure.

I appreciate the support this legislation has received from the State of Vermont, the Vermont League of Cities and Towns, the Vermont Truck and Bus Association, the Vermont Petroleum Association, the Vermont Fuel Dealers Association, and many individual businesses and municipalities throughout Vermont.

Mr. President, I am proud today to introduce the Criminal Justice and Forensic Science Reform Act of 2011. This legislation is an important first step toward guaranteeing the effectiveness and scientific integrity of forensic evidence used in criminal cases, and in ensuring that Americans can have faith in their criminal justice system.

In March of 2009, the Senate Judiciary Committee began its examination of serious issues concerning forensic science, which is at the heart of our criminal justice system. The Committee has studied the problem exhaustively, and has worked with a wide array of experts and stakeholders. The legislation I introduce today is a product of this process. It seeks to strengthen our confidence in the criminal justice system, and the evidence it relies upon, by ensuring that forensic evidence and testimony is accurate, credible, and scientifically grounded.

The National Academy of Science published a report in February 2009 asserting that the field of forensic science has significant problems that urgently need to be addressed. The report suggested that basic research establishing the scientific validity of many forensic science disciplines has never been done in a comprehensive way. It suggested that the forensic sciences lack uniform and unassailable standards governing the accreditation of laboratories, the certification of forensic practitioners, and the testing and analysis of evidence.

The National Academy of Science's report was an urgent call to action. It has been hailed and widely cited since its release. It has also been criticized by many. I did not view the Academy's report as the final word on this issue, but rather as the starting point for a searching review of the state of forensic science in this country.

Last Congress, the Judiciary Committee held two hearings on the issue. Committee members and staff spent countless hours talking to prosecutors, defense attorneys, law enforcement officers, judges, forensic practitioners, academic experts, and many, many others to learn as much as we could about what is happening in the forensic sciences and what needs to be done.

As this effort has progressed, I have been disturbed to learn about still more cases in which innocent people may have been convicted, and perhaps even executed, in part due to faulty forensic evidence. It is a double tragedy when an innocent person is convicted. An innocent person suffers, and a guilty person remains free, leaving us all less safe. We must do everything we can to avoid that untenable outcome.

At the same time, through the course of this inquiry, it has become abundantly clear that the men and women who test and analyze forensic evidence do tremendous work that is vital to our criminal justice system. I remember their important contributions and hard work from my days as a prosecutor, when some of the forensic disciplines we have now did not even exist. Their work is even more important today, and we need to strengthen the field of forensics--and the justice system's confidence in it--so that their hard work can be consistently relied upon, as it should be.

It is beyond question that everyone recognizes the need for forensic evidence that is accurate and reliable. Prosecutors and law enforcement officers want evidence that can be relied upon to determine guilt and prove it beyond a reasonable doubt in a court of law. Defense attorneys want strong evidence that can be used to exclude innocent people from suspicion. Forensic science practitioners want their work to have as much certainty as possible and to be given deserved deference. All scientists and all attorneys who care about these issues want the science that is admitted as evidence in the courtroom to match the science that is proven through rigorous testing and research in the laboratory.

There is also general agreement that the forensic sciences can be improved through strong and unassailable research to test and establish the validity of the forensic disciplines, as well as the application of consistent and regular standards in the field. There is a dire need for well managed and appropriately directed funding for research, development, training, and technical assistance. It is a good investment, as it will lead to fewer trials and appeals, and will reduce crime by ensuring that those who commit serious offenses are promptly captured and convicted.

There is also broad consensus that all forensic laboratories should be required to meet rigorous accreditation standards and that forensic practitioners should be required to obtain meaningful certification.

The bill I introduce today seeks to address these widely recognized needs. It requires that all forensic science laboratories that receive Federal funding or Federal business be accredited according to rigorous standards. It requires all relevant personnel who perform forensic work for any laboratory or agency that gets Federal money to become certified in their fields, which will mean meeting basic proficiency, education, and training requirements.

The bill sets up a rigorous process to determine the most serious needs for research to establish the basic validity of the forensic disciplines, and establishes grant programs to provide for peer- reviewed scientific research to answer fundamental questions and promote innovation. It also sets up a process for this research to lead to appropriate standards and best practices in each discipline. The bill funds research into new technologies and techniques that will allow forensic testing to be done more quickly, more efficiently, and more accurately. I believe these are proposals that will be widely supported by those on all sides of this issue.

There have been of course some areas of disagreement, particularly as to who should oversee these vital reforms to the field of forensics. Some have argued that, because the purpose of forensic science is primarily to produce evidence to be used in the investigation and prosecution of criminal cases, it is vital that those regulating and evaluating forensics must have expertise in criminal justice. They have said that at the Federal level, the Department of Justice is the natural place for an office to examine and oversee the forensic sciences and have emphasized the need for forensic science practitioners to have substantial input in evaluating research and standards.

Others have argued that, for forensic science to truly engender our trust and confidence, its validity must be established by independent scientific research, and standards must be determined by scientists with no possible conflict of interest. They have argued for protections to ensure independent scientific decision making, as well as the significant involvement of Federal scientific agencies.

I find both of these arguments persuasive. I know firsthand the importance of understanding how the criminal justice system works when evaluating the needs and practices in forensic science. I also understand that it is absolutely essential that forensic science be grounded in independent scientific research in order to avoid any question of convictions being based on faulty forensic work.

This legislation attempts to address both of these concerns with a hybrid structure that ensures both criminal justice expertise and scientific independence. It establishes an Office of Forensic Science in the Office of the Deputy Attorney General within the Department of Justice. That office will have a Director who will make all final decisions about research priorities, standards, and structure and who will implement and enforce the systems set up by the legislation.

It also establishes a Forensic Science Board composed of forensic and academic scientists, prosecutors and defense attorneys, and other key stakeholders. The Board will have a careful balance, and a majority of its members will be scientists. It will recommend all research priorities and standards and other key definitions and structures before the Director of the Office of Forensic Science makes a decision. The bill will include important protections to encourage the Director to defer to the recommendations of the Board and to ensure that he or she explains to Congress and to the public, with opportunities for comment, any decision to disregard the Board's recommendations.

The bill also establishes committees of scientists to examine each individual forensic science discipline to determine research needs and standards. It includes protections to ensure that the committees' recommendations receive significant deference, and the committees will be overseen by the National Institute of Standards and Technology, NIST, a respected scientific agency. NIST will also implement grant programs for research into the forensic sciences premised on the research priorities established by the Forensic Science Board and the Office of Forensic Science. The National Science Foundation will help to ensure that the grant programs are run properly, with rigorous scientific peer review and without any bias.

This bill aims to carefully balance the competing considerations that are so important to getting a review of forensics right. It also capitalizes on existing expertise and structures, rather than calling for the creation of a costly new agency. It seeks to proceed modestly and cost effectively, with ample oversight, checks, and controls. I am committed to exploring ways to use existing resources so that this urgent work will not negatively impact the budget. Ultimately, improvements in the forensic sciences will save money, reduce the number of costly appeals, shorten investigations and trials, and help to eliminate wrongful imprisonments.

I understand that sweeping forensic reform and criminal justice reform legislation not only should, but must, be bipartisan. There is no reason for a partisan divide on this issue; fixing this problem does not advance the interests of only prosecutors or defendants, or of Democrats or Republicans, but the interests of justice. I have worked closely with interested Republican Senators on this vital issue. I will continue to work diligently with Senators on both sides of the aisle to ensure that this becomes the consensus bipartisan legislation that it ought to be. I hope many will cosponsor this legislation, and work with me to ensure its passage.

I want to thank the forensic science practitioners, experts, advocates, law enforcement personnel, judges, and so many others whose input forms the basis for this legislation. Your passion for this issue and for getting it right gives me confidence that we will work together successfully to make much needed progress.

I hope all Senators will join me in advancing this important legislation to bolster confidence in the forensic sciences and the criminal justice system.

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