Waters Amendment Requiring a USPTO Implementation Study

This amendment offered by Congresswoman Maxine Waters (D-Calif.) was accepted by Republicans and included in the final bill H.R. 1249, the America Invents Act, that passed the Committee today. In introducing her amendment, the Congresswomand delivered the following remarks:

I have an amendment at the desk.

Mr. Chairman, I want to thank you in advance for your support of my amendment – an noncontroversial and important measure that I believe will supply Congress with the critical research and analysis it needs to ensure that H.R. 1249 is achieving its intended policy objectives. Considering the scope of reforms the America Invents Act will make to our patent system, I believe my amendment is well-warranted and appropriate.

The Waters Amendment to H.R. 1249 would require the United States Patent and Trademark Office (USPTO) to conduct a study on the manner in which H.R. 1249 is being implemented by the USPTO, and on other aspects of the patent policies and practices of the Federal government with respect to patent rights, innovation in the United States, competitiveness of the United States markets, access by small businesses to capital for investment, and other such issues the USPTO Director deems appropriate. This amendment would require the USPTO to complete the implementation study 4 years after H.R. 1249 is enacted.

According to a 2011 report on patent reform completed by the Congressional Research Service:

"When analyzing the validity of competing views [on patent reform], it is important to note the lack of rigorous analytical methods available for studying the effect of the patent law upon the U.S. economy as a whole. The relationship between patent rights remains poorly understood. As a result, current economic and policy tools do not allow us to calibrate the patent system precisely in order to produce an optimal level of investment in innovation. Thus, each of the arguments for and against our nation's patent system remains open to challenge by those who are not persuaded by their internal logic." (1)

Accordingly, it is reasonable for H.R. 1249 – a bill that will enact sweeping reforms – to include an implementation study to determine if the policies are in fact achieving overarching congressional objectives: promoting innovation, spurring investment, job creation, and enhancing U.S. competitiveness. My amendment will promote good public policy and government oversight in ensuring that Congress fully understands the relationships between our patent system, innovation policy, and the U.S. economy.

From the onset, I have supported reforms that would strengthen the Patent Office; strengthen and protect U.S. patent rights; and create a legal and administrative framework that is fair and does not unnecessarily advantage one group of stakeholders over the other. In our hearings, we have had the opportunity to hear from some of the larger voices that have shaped the patent reform debate. However, I have been most anxious to hear from the smaller startup firms and the challenges they encounter in competing with larger more established corporations who have an arsenal of patent attorneys and advisors. Our patent system must facilitate competition and innovation from a diverse community of creative and imaginative individuals who will help to fuel the nation's economic recovery.

To those ends, I agree with Judge Paul Michel (Me-shell) who testified before the IP Subcommittee's hearing on February 10, 2011. In that hearing, Judge Michel (me-shell) advised the Subcommittee to hear from the CEOs of start-up technology companies and from leaders in the venture capital industry. In his view, these are the stakeholders whose perspectives have been drowned out. I also believe that these stakeholders can help us chart a course forward and further understand the interactions between; patents and job creation, patents and risk capital investments in R&D (research and development), in building new production facilities, and in hiring new workers. And of course, this is the principle priority that both parties and the President have undertaken to address this Congress – jobs, jobs, jobs.

In completing its final quadrennial report as required under the 1980 Bayh-Dole Act, the Government Accountability Office reported in 2009 that technological innovation is widely viewed as responsible for much of the economic growth and increased standard of living within modern societies. Effective patent and innovation policies promote the commercialization of new ideas and encourages the additional, and often substantial, investment of time and money needed to transform the technological innovations into goods, services, and processes available in the marketplace.

Therefore Mr. Chairman, I urge my colleagues to support the Waters USPTO Study Amendment, so that we can have an informed analysis on the extent to which the America Invents Act is strengthening the nation's economy and job market, four years after the bill is implemented.

Thank you Mr. Chairman, and I yield back the balance of my time.

(1) Wendy H. Schacht and John R. Thomas, Patent Reform in the 112th Congress: Innovation Issues, April 7, 2011 (R41638)