WASHINGTON – Below is U.S. Senator Chris Coons’ (D-Del.) opening statement from this morning’s Senate Judiciary Committee markup of the PATENT Act. Senator Coons is the author of the bipartisan STRONG Patents Act, which is cosponsored by Senators Dick Durbin (D-Ill.), David Vitter (R-La.), Mazie Hirono (D-Hawaii), and Tom Cotton (R-Ark.).
Excerpts from Senator Coons’ remarks:
“What makes a patent worthwhile is if you can successfully defend it against infringers, whether domestic or foreign, and whether in the early stages of a startup company as you try to scale and develop and deploy and market your invention, whether you can attract and retain the investors who make it possible to grow that invention.”
“My core concern is that much of the negotiations have occurred between exactly those interests that are best represented and that most represent stable, mature, and dominant industries in different sectors. The voices from which we have heard the least are those who are most important both in the history of patents and in the history of innovation in this country.”
“In the eyes of this bill, every inventor, every startup, and every small business that relies on patent protection so they can invest and grow jobs and defend their legitimate invention against foreign or domestic infringers is also considered a ‘troll.’ There is no clear line.”
“This is largely a story about unintended consequences. Many of the sponsors have referenced the fact that just a few years ago, broad and comprehensive reforms to our intellectual property system spawned a new process that has raised new questions and issues. We should first be concerned about the likely unintended consequences of complex and controversial legislation such as this.”
“This Congress should not be choosing sides between powerful interests that rely on intellectual property without a thorough and searching examination of its likely impact on the entire system of innovation in this country.”
“Why would we legislate in haste in a way that might take away hope from a family with a loved one struggling with Alzheimer’s, living with Muscular Dystrophy, concerned about Sickle Cell Anemia, wondering when or how a device or treatment or pharmaceutical might be invented and developed that could help them relieve their suffering? Why would we focus solely on one segment and ignore a whole other?”
Senator Coons’ full remarks are below:
“As a number of the Senators who have spoken today recognize, innovation is really at the very heart of what makes America America, and patents are really one of the most important of the constitutionally created and protected property rights that our founders imagined. And it’s no surprise, because a number of our founders included the ‘curious tinkerers’ as Senator Schumer put it, who are at the very foundation America’s unique innovation system. In fact, President Lincoln was himself an inventor and patent holder, and the range and reach of small inventors who’ve gone on to be contributors in other fields is really remarkable and in some ways characteristic of what makes America special.
“But what makes a patent worthwhile is if you can successfully defend it against infringers, whether domestic or foreign, and whether in the early stages of a startup company as you try to scale and develop and deploy and market your invention, whether you can attract and retain the investors who make it possible to grow that invention.
“I thank the cosponsors and the leaders today for their diligent and disciplined bipartisan work to try and reach a balance point – one of the sponsors referred to this as a ‘high wire act’ – and I know it is difficult to reach consensus. But my core concern is that much of the negotiations have occurred between exactly those interests that are best represented and that most represent stable, mature, and dominant industries in different sectors. The voices from which we have heard the least are those who are most important both in the history of patents and in the history of innovation in this country.
“As we’ve heard from a number of Senators, there is no clear definition of what a ‘troll’ is. There are a lot of statements decrying ‘trolling’ behavior, but this bill still does not make a specific enough definition of what is a ‘patent troll.’ We’ve heard a great deal of invective about scum-sucking, bottom-feeding, invasive species and tapeworms on the body politic, and I too, have heard from very small companies, from those who are in the commercial field who are very concerned about demand letters and baseless cases and patent trolls. But in the eyes of this bill, every inventor, every startup, and every small business that relies on patent protection so they can invest and grow jobs and defend their legitimate invention against foreign or domestic infringers is also considered a ‘troll.’ There is no clear line.
“And as such I’m disappointed that this bill doesn’t make that distinction. We can pretend otherwise and avoid listening to the legitimate voices of real small inventors and those who invest in them but we will miss the most important voice in the whole discussion about invention and innovation because it’s exactly those inventors who come forward with disruptive inventions, who change whole categories, and it’s exactly those inventors who are most at risk of being closed out of our marketplace by the big, established players. And it is those inventors who are most intended to be protected by the framers of our Constitution.
“One colleague said that when he meets with and listens to startups, they have two concerns. One is access to skilled labor, to engineers, and those who can help them grow, and the other is protection from patent trolls.
“Well, I’ve met with dozens and dozens of small inventors who’ve grown their companies to be large, and he must not be listening very well, because uniformly, they have one other key concern. Capital, access to capital, support from investors.
“So as I urge you to think about the impact on small business and reflect on what the Chair of the Small Business Committee said earlier in this markup, I’d also urge you to read the letter from the National Venture Capital Association, which best represents that community of investors who are most engaged in helping the small, early-stage startups grow. They say ‘because the unintended consequences that will result from provisions in this bill will make it harder to invest in patent-reliant startups, we have no choice but to oppose the bill in its current form and hope that improvements can be made as we work through the legislative process.’ A similar letter form the Medical Device Manufacturers Association lays out the many ways in which this bill is overbroad, and makes hopefully unintended, negative impacts on our system of innovation and of patent litigation. And a similar letter from the USIJ lays out how a coalition of venture capitalists, entrepreneurs, and inventors similarly feels this bill goes too far.
“Let me also suggest that we should be listening not just to investors and inventors who might be at the center of the discussion about patents, but we should also listen to expert practitioners. We have on the record letters from the American Bar Association, which represents virtually every practicing attorney in America, from the American Intellectual Property Law Association, which represents 15,000 IP lawyers, from every place along the spectrum, and the New York IP Law Association, all three of which in their letters to this committee on this bill make clear provisions in this current bill will cause broad and unfair harm to all companies trying to enforce a valid patent against an infringing competitor.
“Whether we listen to Dr. Fogarty, the inventor of the balloon catheter cited by Senator Durbin, or we listen to the investors, who would help grow a small company, or we listen to practitioners who are at the very center of patent litigation at all places along the spectrum, there are many voices saying this bill is not done. It is still controversial. It is not yet baked. There are still likely unintended harms caused by this bill. As a result, I will try in this markup to make this bill less harmful to those who rely on the patent system to continue to lead our economy forward.
“I will offer amendments to restore balance and fairness to post grant proceedings, where we’ve seen some of the unforeseen consequences already of our most significant recent patent reform efforts.
“I will offer amendments that will minimize the harm to the small business and real job creators that our economy needs so that we can reduce the broad harm many have recognized that may lie in these litigation reform provisions. And I invite my colleagues to listen to a real debate about these amendments and to join me in making these small, modest, but necessary improvements to deal with these legitimate concerns about this bill.
“This is largely a story about unintended consequences. Many of the sponsors have referenced the fact that just a few years ago, broad and comprehensive reforms to our intellectual property system spawned a new process that has raised new questions and issues. We should first be concerned about the likely unintended consequences of complex and controversial legislation such as this.
“This Congress should not be choosing sides between powerful interests that rely on intellectual property without a thorough and searching examination of its likely impact on the entire system of innovation in this country.
“Of the letters I have urged my colleagues to take up and read and think about, I will last urge you to think through a letter from 93 different patient advocacy groups, led by the Epilepsy Association of the United States, but that represents a very wide range of citizens deeply concerned about the likely harmful impact of this bill on innovation, and biologics and pharmaceuticals and devices and treatments.
“Why would we legislate in haste in a way that might take away hope from a family with a loved one struggling with Alzheimer’s, living with Muscular Dystrophy, concerned about Sickle Cell anemia, wondering when or how a device or treatment or pharmaceutical might be invented and developed that could help them relieve their suffering? Why would we focus solely on one segment and ignore a whole other?”
“In my view, the narrow and targeted bill that the Chairman of the Small Business Committee, Senator Vitter, and I have introduced, the STRONG Patents Act, is a way to target our actions against exactly the patent trolls that other Senators have spoken about without broader, unintended negative consequences to every legitimate investor, inventor, and patent holder in our entire system. I’m grateful for the support of Senator Durbin and his advocacy on this issue, as well as Senators Hirono and Cotton and others.
“This is a difficult and important issue, and Mr. Chairman, it is my hope that we will take up, debate, and move through the many amendments that I have filed, that other Senators have filed, and that we will not move this bill for floor consideration until the different and competing issues that have been raised, by sponsors and members of the committee alike have actually been seriously and thoroughly discussed and resolved.”