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[House Report 112-111]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-111

======================================================================

 
PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 2021) TO AMEND THE CLEAN 
     AIR ACT REGARDING AIR POLLUTION FROM OUTER CONTINENTAL SHELF 
ACTIVITIES, AND PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 1249) TO 
    AMEND TITLE 35, UNITED STATES CODE, TO PROVIDE FOR PATENT REFORM

                                _______
                                

   June 21, 2011.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

               Mr. Nugent, from the Committee on Rules, 
                        submitted the following

                              R E P O R T

                       [To accompany H. Res. 316]

    The Committee on Rules, having had under consideration 
House Resolution 316, by a vote of 7 to 2, report the same to 
the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 2021, the 
Jobs and Energy Permitting Act of 2011, under a structured 
rule. The resolution provides one hour of general debate 
equally divided and controlled by the chair and ranking 
minority member of the Committee on Energy and Commerce. The 
resolution waives all points of order against consideration of 
H.R. 2021. The resolution provides that H.R. 2021 shall be 
considered as read. The resolution waives all points of order 
against provisions in H.R. 2021. The resolution makes in order 
only those amendments to H.R. 2021 printed in Part A of this 
report. Each such amendment may be offered only in the order 
printed in this report, may be offered only by a Member 
designated in this report, shall be considered as read, shall 
be debatable for the time specified in this report equally 
divided and controlled by the proponent and an opponent, shall 
not be subject to amendment, and shall not be subject to a 
demand for division of the question in the House or in the 
Committee of the Whole. All points of order against the 
amendments printed in Part A of this report are waived. The 
resolution provides one motion to recommit H.R. 2021 with or 
without instructions.
    Section 2 of the resolution provides for consideration of 
H.R. 1249, the America Invents Act under a structured rule. The 
resolution provides for 20 minutes of initial debate confined 
to the question of constitutionality of the bill equally 
divided and controlled by Representative Smith (R-TX) and 
Representative Kaptur (D-OH) or their designees. The resolution 
further provides for one hour of general debate equally divided 
and controlled by the chair and ranking minority member of the 
Committee on the Judiciary. The resolution waives all points of 
order against consideration of H.R. 1249. The resolution 
provides that the amendment in the nature of a substitute 
recommended by the Committee on the Judiciary now printed in 
the bill shall be considered as an original bill for purpose of 
amendment and provides that the amendment shall be considered 
as read. The resolution waives all points of order against the 
committee amendment in the nature of a substitute. The 
resolution makes in order only those amendments to H.R. 1249 
printed in Part B of this report. Each such amendment may be 
offered only in the order printed in this report, may be 
offered only by a Member designated, shall be considered as 
read, shall be debatable for the time specified in this report 
equally divided and controlled by the proponent and an 
opponent, shall not be subject to amendment, and shall not be 
subject to a demand for division of the question in the House 
or in the Committee of the Whole. All points of order against 
the amendments printed in Part B of this report are waived. The 
resolution provides for one motion to recommit H.R. 1249 with 
or without instructions.
    Finally, Section 3 of the resolution provides that upon 
receipt of a message from the Senate transmitting H.R. 1249 
with a Senate amendment or amendments thereto, it shall be in 
order to consider in the House a single motion offered by the 
chair of the Committee on the Judiciary or his designee that 
the House disagree to the Senate amendment or amendments and 
request or agree to a conference with the Senate thereon. All 
points of order against the motion are waived. The motion shall 
be debatable for one hour equally divided and controlled by the 
chair and ranking minority member of the Committee on the 
Judiciary.

                         EXPLANATION OF WAIVERS

    Although the resolution waives all points of order against 
consideration of H.R. 2021, the Committee is not aware of any 
points of order against its consideration. The waiver of all 
points of order is prophylactic.
    Although the resolution waives all points of order against 
provisions in H.R. 2021, the Committee is not aware of any 
points of order against provisions in the bill and therefore 
the waiver is prophylactic in nature.
    Although the resolution waives all points of order against 
the amendments to H.R. 2021 printed in Part A of this report, 
the Committee is not aware of any points of order against the 
amendments and therefore it is prophylactic in nature.
    Although the rule waives all points of order against 
consideration of H.R. 1249, the Committee is not aware of any 
points of order. The waiver is prophylactic.
    The rule waives all points of order against the committee 
amendment in the nature of a substitute. This includes a waiver 
of Clause 4 of Rule XXI, which prohibits reporting a bill or 
joint resolution carrying an appropriation from a committee not 
having jurisdiction to report an appropriation. The waiver of 
all points of order against the committee amendment in the 
nature of a substitute also includes a waiver of Clause 5 of 
Rule XXI, which prohibits a bill carrying a tax provision from 
being reported by a committee that does not have jurisdiction 
to report tax measures.
    The rule waives all points of order against the amendments 
to H.R. 1249 printed in Part B of this report. The waiver of 
all points of order against amendments in this report includes 
a waiver of clause 10 of Rule XXI (CUTGO) with respect to 
amendment #1 to be offered by the Chairman of the Committee on 
the Judiciary, Rep. Smith (R-TX). The waiver is necessary 
because the Judiciary Committee included language in the 
reported bill in violation of clause 4 of Rule XXI, which 
prohibits a committee not having jurisdiction to report 
appropriations from reporting an appropriation. While the 
manager's amendment remedies this violation of clause 4, in 
doing so, it violates clause 10 of Rule XXI because the 
amendment would have the net effect of increasing mandatory 
spending by eliminating the savings achieved in the reported 
version of the bill. However, it is important to note that the 
manager's amendment is reclassifying PTO funding as 
discretionary, which is consistent with current law and would 
not impact direct spending or the deficit when compared to the 
Congressional Budget Office's spending baseline.

                            COMMITTEE VOTES

    The results of each record vote on an amendment or motion 
to report, together with the names of those voting for and 
against, are printed below:

Rules Committee record vote No. 103

    Motion by Ms. Slaughter to report open rules for H.R. 2021 
and H.R. 1249. Defeated: 2-7.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Nay   Ms. Slaughter.....................          Yea
Mr. Bishop of Utah..............................          Nay   Mr. Hastings of Florida...........          Yea
Mr. Woodall.....................................          Nay
Mr. Nugent......................................          Nay
Mr. Scott of South Carolina.....................          Nay
Mr. Webster.....................................          Nay
Mr. Dreier, Chairman............................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 104

    Motion by Ms. Slaughter to amend the rule for H.R. 1249 to 
not include a waiver of clause 10 of Rule XXI. Defeated: 2-7.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Nay   Ms. Slaughter.....................          Yea
Mr. Bishop of Utah..............................          Nay   Mr. Hastings of Florida...........          Yea
Mr. Woodall.....................................          Nay
Mr. Nugent......................................          Nay
Mr. Scott of South Carolina.....................          Nay
Mr. Webster.....................................          Nay
Mr. Dreier, Chairman............................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 105

    Motion by Mr. Bishop of Utah to report the rule. Adopted: 
7-2.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Yea   Ms. Slaughter.....................          Nay
Mr. Bishop of Utah..............................          Yea   Mr. Hastings of Florida...........          Nay
Mr. Woodall.....................................          Yea
Mr. Nugent......................................          Yea
Mr. Scott of South Carolina.....................          Yea
Mr. Webster.....................................          Yea
Mr. Dreier, Chairman............................          Yea
----------------------------------------------------------------------------------------------------------------

             SUMMARY OF AMENDMENTS IN PART A MADE IN ORDER

    1. Speier (CA): Would strike section 2 of H.R. 2021. (10 
minutes)
    2. Hastings, Alcee (FL): Would direct emission sources from 
the Outer Continental Shelf (OCS) to title I of the Clean Air 
Act, ensuring that the vessels often responsible for the 
majority of the OCS's emission sources are not left 
unregulated. (10 minutes)
    3. Welch (VT): Would require all permit applications to 
include data on federal oil subsidies received by the company 
applying for the permit. (10 minutes)
    4. Keating (MA): Would require that all completed 
applications include data on bonuses provided to the executives 
of the applicant from the most recent quarter. (10 minutes)
    5. Rush (IL): Would allow the Administrator to provide 
additional 30-day extensions if the Administrator determines 
that such time is necessary to meet the requirements of this 
section, to provide adequate time for public participation, or 
to ensure sufficient involvement by one or more affected 
States. (10 minutes)
    6. Quigley (IL): Would strike underlying text that 
eliminates the ability of the Environmental Appeals Board (EAB) 
to remand or deny the issuance of Clean Air Act permits for 
offshore energy exploration and extraction. (10 minutes)
    7. Eshoo (CA): Would preserve access to local courts by 
striking a provision which requires permit decisions to be 
litigated in the DC Circuit in Washington D.C. (10 minutes)
    8. Capps (CA), Carney (DE), Castor (FL): Would seek to 
preserve state authority over OCS sources where states have 
been delegated authority to issue air permits for offshore 
drilling activities. (10 minutes)
    9. Hochul (NY): Would require a report that details how the 
amendments made by this Act are projected to increase oil and 
gas production and lower energy prices for consumers. (10 
minutes)
    10. Schrader (OR), DeFazio (OR), Wu (OR): Would prohibit 
any permits issued under the Clean Air Act for oil or natural 
gas drilling on the Outer Continental Shelf (OCS) off the coast 
of Oregon (10 minutes)

             SUMMARY OF AMENDMENTS IN PART B MADE IN ORDER

    1. Smith, Lamar (TX): Manager's Amendment: Would make 
technical edits and a few necessary changes to more substantive 
issues, such as prior user rights and an additional oversight 
requirement for the PTO. (10 minutes)
    2. Conyers (MI), Rohrabacher (CA): Would insert language to 
move the United States to a first to file system only upon a 
Presidential finding that other major patent authorities have 
adopted a similar one-year grace period. (10 minutes)
    3. Baldwin (WI), Sensenbrenner (WI), Kind (WI): Would 
strike Section 5, the ``prior user rights'' language, and 
conform H.R. 1249 to H.R. 1908, as passed by the U.S. House of 
Representatives on September 7, 2007, and S. 23, as passed by 
the U.S. Senate on March 8, 2011. (10 minutes)
    4. Moore, Gwen (WI): Would direct the USPTO to develop 
methods for studying the diversity of patent applicants, 
including those applicants who are minorities, women, or 
veterans. Any results of the study shall not be used for 
preferential treatment in the patent process. (10 minutes)
    5. Jackson Lee (TX): Would add a sense of Congress that it 
is important to protect the rights of small businesses and 
inventors from predatory behavior that could result in cutting 
off innovation and may provide an undue advantage to large 
financial institutions and high-tech firms. (10 minutes)
    6. Lujan (NM): Would add requirements to the satellite 
office location selection process to ensure that (1) the 
purposes, as described in the bill, of establishing satellite 
offices are achieved, (2) recruitment costs are minimized by 
considering the availability of knowledgeable personnel in the 
region, and (3) the economic impact to the region is 
considered. It would also require that the Director in the 
required report to Congress on the rationale in selecting the 
location of any satellite office include an explanation of how 
the selected location will achieve the purposes of satellite 
offices and how the required considerations were met. (10 
minutes)
    7. Peters (MI), Renacci (OH): Would mandate a USPTO-led 
study on what USPTO, SBA, and other agencies can do to help 
small businesses obtain, maintain, and enforce foreign patents. 
This study is to be conducted using existing resources. (10 
minutes)
    8. Polis (CO): Would clarify that the new legislation would 
apply only to new tax planning patents, not already filed 
patents which would disclose patent information leaving the 
applicants vulnerable. (10 minutes)
    9. Conyers (MI), Markey (MA), Neal (MA), Pompeo (KS), 
Garrett (NJ), Lance (NJ), Gallegly (CA): Would restore language 
for calculation of 60-day period for application of patent term 
extension that the managers amendment strikes. (10 minutes)
    10. Speier (CA): Would direct the PTO to prescribe a 
requirement that parties provide sufficient evidence to prove 
and rebut a claim of derivation. (10 minutes)
    11. Waters (CA): Would add a severability clause protecting 
the remainder of the bill if the Supreme Court determines that 
certain sections or provisions are unconstitutional. (10 
minutes)
    12. Sensenbrenner (WI): Would strike Section 3 of the 
legislation, which would convert the U.S. patent system from 
``first-to-invent'' to ``first-to-file.'' (10 minutes)
    13. Manzullo (IL): Would eliminate the ability of the 
Director of the U.S. Patent and Trademark Office (USPTO) to set 
fees, retaining that authority for Congress. (10 minutes)
    14. Rohrabacher (CA), Kaptur (OH): Would eliminate the 
burden of post-grant reviews and reexaminations on individual 
inventors and small businesses with 100 or fewer employees. (10 
minutes)
    15. Schock (IL), Boren (OK), Waters (CA), Sensenbrenner 
(WI), Franks (AZ), Kaptur (OH): Would strike section 18 of H.R. 
1249, the Transitional program for covered business method 
patents. (10 minutes)

         PART A--TEXT OF AMENDMENTS MADE IN ORDER TO H.R. 2021

1. An Amendment To Be Offered by Representative Speier of California or 
                 Her Designee, Debatable for 10 Minutes

  Strike section 2 (and redesignate the subsequent sections 
accordingly).
                              ----------                              

2. An Amendment To Be Offered by Representative Hastings of Florida or 
                 His Designee, Debatable for 10 Minutes

  Page 3, line 19, strike ``but shall not be subject'' and 
insert ``and shall be subject''.
                              ----------                              

3. An Amendment To Be Offered by Representative Welch of Vermont or His 
                   Designee, Debatable for 10 Minutes

  Page 4, after line 9, insert the following (and redesignate 
the subsequent paragraphs accordingly):
          ``(1) such completed application shall include data 
        on oil subsidies provided by the Federal Government to 
        the applicant;
                              ----------                              

      4. An Amendment To Be Offered by Representative Keating of 
        Massachusetts or His Designee, Debatable for 10 Minutes

  Page 4, after line 9, insert the following (and redesignate 
the subsequent paragraphs accordingly):
          ``(1) such completed application shall include data 
        on bonuses provided to the executives of the applicant 
        from the most recent quarter;
                              ----------                              

5. An Amendment To Be Offered by Representative Rush of Illinois or His 
                   Designee, Debatable for 10 Minutes

  Page 4, line 13, insert before the semicolon ``, except that 
the Administrator may provide additional 30-day extensions if 
the Administrator determines that such time is necessary to 
meet the requirements of this section, to provide adequate time 
for public participation, or to ensure sufficient involvement 
by one or more affected States''.
  Page 4, beginning at line 18, strike paragraph (3) and insert 
the following:
          ``(3) no administrative stay of the effectiveness of 
        such permit may extend beyond the deadline for final 
        agency action under paragraph (1);
                              ----------                              

6. An Amendment To Be Offered by Representative Quigley of Illinois or 
                 His Designee, Debatable for 10 Minutes

  Page 4, beginning on line 14, strike paragraph (2) and 
redesignate the subsequent paragraphs accordingly.
                              ----------                              

7. An Amendment To Be Offered by Representative Eshoo of California or 
                 Her Designee, Debatable for 10 Minutes

  Page 4, line 21, insert ``and'' after the semicolon.
  Page 4, beginning on line 22, strike paragraph (4) and 
redesignate the subsequent paragraph accordingly.
  Page 5, line 2, strike ``such''.
                              ----------                              

8. An Amendment To Be Offered by Representative Capps of California or 
                 Her Designee, Debatable for 10 Minutes

  Page 5, line 8, strike ``subsections (a), (b), and (d)'' and 
insert ``subsections (a), (b), (d), and (e)''.
  Page 5, after line 8, add the following new section:

SEC. 5. STATE AUTHORITY.

  Section 328 of the Clean Air Act (42 U.S.C. 7627) is further 
amended by adding at the end the following:
  ``(e) State Authority.--Any State with delegated authority to 
implement and enforce this section may impose any standard, 
limitation, or requirement relating to emissions of air 
pollutants from an OCS source if such standard, limitation, or 
requirement is no less stringent than the standards, 
limitations, or requirements established by the Administrator 
pursuant to this section.''.
                              ----------                              

 9. An Amendment To Be Offered by Representative Hochul of New York or 
                 Her Designee, Debatable for 10 Minutes

   Page 5, after line 8, add the following new subsection:
  (c) Reporting.--Not later than 60 days after the date of 
enactment of this Act, the Administrator of the Environmental 
Protection Agency shall submit to Congress a report that 
details how the amendments made by this Act are projected to 
increase oil and gas production and lower energy prices for 
consumers.
                              ----------                              

10. An Amendment To Be Offered by Representative Schrader of Oregon or 
                 His Designee, Debatable for 10 Minutes

  At the end of the bill, insert the following:

SEC. 5. PROHIBITION AGAINST DRILLING OFF THE COAST OF OREGON.

  No permit may be issued under the Clean Air Act (42 U.S.C. 
7401 et seq.) for an Outer Continental Shelf source (as defined 
in section 328(a)(4) of such Act (42 U.S.C. 7627(a)(4))) in 
connection with drilling for oil or natural gas off the coast 
of Oregon.
                              ----------                              

         PART B--TEXT OF AMENDMENTS MADE IN ORDER TO H.R. 1249

 1. An Amendment To Be Offered by Representative Smith of Texas or His 
                   Designee, Debatable for 10 Minutes

  Page 3, line 5, strike ``America Invents Act'' and insert 
``Leahy-Smith America Invents Act''.
  Page 4, lines 10 and 22, strike ``5(a)(1)'' and insert 
``5(a)''.
  Page 16, line 1, insert after the period the following: ``In 
appropriate circumstances, the Patent Trial and Appeal Board 
may correct the naming of the inventor in any application or 
patent at issue.''.
  Page 25, strike line 13 and all that follows through page 27, 
line 2, and redesignate the succeeding subsections accordingly.
  Page 27, line 4, strike ``registration''.
  Page 27, line 5, strike ``inventor to use'' and insert ``to 
invent''.
  Page 27, line 6, insert ``and the useful arts'' after 
``science''.
  Page 27, line 9, strike ``granted by the'' and insert 
``provided by the grant of''.
  Page 27, line 12, strike ``registration''.
  Page 27, line 13, strike ``inventor to use'' and insert ``to 
invent''.
  Page 27, lines 14 and 15, strike ``harmonize the United 
States patent registration system with the patent registration 
systems'' and insert ``improve the United States patent system 
and promote harmonization of the United States patent system 
with the patent systems''.
  Page 27, line 18, strike ``a greater sense of'' and insert 
``greater''.
  Page 36, strike line 10 and all that follows through page 40, 
line 5, and insert the following (and conform the table of 
contents) accordingly:

SEC. 5. DEFENSE TO INFRINGEMENT BASED ON PRIOR COMMERCIAL USE.

  (a) In General.--Section 273 of title 35, United States Code, 
is amended to read as follows:

``Sec. 273. Defense to infringement based on prior commercial use

  ``(a) In General.--A person shall be entitled to a defense 
under section 282(b) with respect to subject matter consisting 
of a process, or consisting of a machine, manufacture, or 
composition of matter used in a manufacturing or other 
commercial process, that would otherwise infringe a claimed 
invention being asserted against the person if--
          ``(1) such person, acting in good faith, commercially 
        used the subject matter in the United States, either in 
        connection with an internal commercial use or an actual 
        arm's length sale or other arm's length commercial 
        transfer of a useful end result of such commercial use; 
        and
          ``(2) such commercial use occurred at least 1 year 
        before the earlier of either--
                  ``(A) the effective filing date of the 
                claimed invention; or
                  ``(B) the date on which the claimed invention 
                was disclosed to the public in a manner that 
                qualified for the exception from prior art 
                under section 102(b).
  ``(b) Burden of Proof.--A person asserting a defense under 
this section shall have the burden of establishing the defense 
by clear and convincing evidence.
  ``(c) Additional Commercial Uses.--
          ``(1) Premarketing regulatory review.--Subject matter 
        for which commercial marketing or use is subject to a 
        premarketing regulatory review period during which the 
        safety or efficacy of the subject matter is 
        established, including any period specified in section 
        156(g), shall be deemed to be commercially used for 
        purposes of subsection (a)(1) during such regulatory 
        review period.
          ``(2) Nonprofit laboratory use.--A use of subject 
        matter by a nonprofit research laboratory or other 
        nonprofit entity, such as a university or hospital, for 
        which the public is the intended beneficiary, shall be 
        deemed to be a commercial use for purposes of 
        subsection (a)(1), except that a defense under this 
        section may be asserted pursuant to this paragraph only 
        for continued and noncommercial use by and in the 
        laboratory or other nonprofit entity.
  ``(d) Exhaustion of Rights.--Notwithstanding subsection 
(e)(1), the sale or other disposition of a useful end result by 
a person entitled to assert a defense under this section in 
connection with a patent with respect to that useful end result 
shall exhaust the patent owner's rights under the patent to the 
extent that such rights would have been exhausted had such sale 
or other disposition been made by the patent owner.
  ``(e) Limitations and Exceptions.--
          ``(1) Personal defense.--
                  ``(A) In general.--A defense under this 
                section may be asserted only by the person who 
                performed or directed the performance of the 
                commercial use described in subsection (a), or 
                by an entity that controls, is controlled by, 
                or is under common control with such person.
                  ``(B) Transfer of right.--Except for any 
                transfer to the patent owner, the right to 
                assert a defense under this section shall not 
                be licensed or assigned or transferred to 
                another person except as an ancillary and 
                subordinate part of a good-faith assignment or 
                transfer for other reasons of the entire 
                enterprise or line of business to which the 
                defense relates.
                  ``(C) Restriction on sites.--A defense under 
                this section, when acquired by a person as part 
                of an assignment or transfer described in 
                subparagraph (B), may only be asserted for uses 
                at sites where the subject matter that would 
                otherwise infringe a claimed invention is in 
                use before the later of the effective filing 
                date of the claimed invention or the date of 
                the assignment or transfer of such enterprise 
                or line of business.
          ``(2) Derivation.--A person may not assert a defense 
        under this section if the subject matter on which the 
        defense is based was derived from the patentee or 
        persons in privity with the patentee.
          ``(3) Not a general license.--The defense asserted by 
        a person under this section is not a general license 
        under all claims of the patent at issue, but extends 
        only to the specific subject matter for which it has 
        been established that a commercial use that qualifies 
        under this section occurred, except that the defense 
        shall also extend to variations in the quantity or 
        volume of use of the claimed subject matter, and to 
        improvements in the claimed subject matter that do not 
        infringe additional specifically claimed subject matter 
        of the patent.
          ``(4) Abandonment of use.--A person who has abandoned 
        commercial use (that qualifies under this section) of 
        subject matter may not rely on activities performed 
        before the date of such abandonment in establishing a 
        defense under this section with respect to actions 
        taken on or after the date of such abandonment.
          ``(5) University exception.--
                  ``(A) In general.--A person commercially 
                using subject matter to which subsection (a) 
                applies may not assert a defense under this 
                section if the claimed invention with respect 
                to which the defense is asserted was, at the 
                time the invention was made, owned or subject 
                to an obligation of assignment to either an 
                institution of higher education (as defined in 
                section 101(a) of the Higher Education Act of 
                1965 (20 U.S.C. 1001(a)), or a technology 
                transfer organization whose primary purpose is 
                to facilitate the commercialization of 
                technologies developed by one or more such 
                institutions of higher education.
                  ``(B) Exception.--Subparagraph (A) shall not 
                apply if any of the activities required to 
                reduce to practice the subject matter of the 
                claimed invention could not have been 
                undertaken using funds provided by the Federal 
                Government.
  ``(f) Unreasonable Assertion of Defense.--If the defense 
under this section is pleaded by a person who is found to 
infringe the patent and who subsequently fails to demonstrate a 
reasonable basis for asserting the defense, the court shall 
find the case exceptional for the purpose of awarding attorney 
fees under section 285.
  ``(g) Invalidity.--A patent shall not be deemed to be invalid 
under section 102 or 103 solely because a defense is raised or 
established under this section.''.
  (b) Conforming Amendment.--The item relating to section 273 
in the table of sections for chapter 28 of title 35, United 
States Code, is amended to read as follows:

``273. Defense to infringement based on prior commercial use.''.

  (c) Effective Date.--The amendments made by this section 
shall apply to any patent issued on or after the date of the 
enactment of this Act.
  Page 41, line 5, strike ``1 year'' and insert ``9 months''.
  Page 42, line 22, strike ``commence'' and insert ``be 
instituted''.
  Page 43, line 24, and page 44, line 1, strike ``petitioner, 
real party in interest, or privy of the petitioner'' and insert 
``petitioner or real party in interest''.
  Page 44, lines 3 and 4, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 44, lines 13 and 14, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 44, lines 16 and 17, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 52, line 10, strike ``Amended or New Claim'' and insert 
``Intervening Rights''.
  Page 54, insert the following after line 10:
          (3) Transition.--
                  (A) In general.--Chapter 31 of title 35, 
                United States Code, is amended--
                          (i) in section 312--
                                  (I) in subsection (a)--
                                          (aa) in the first 
                                        sentence, by striking 
                                        ``a substantial new 
                                        question of 
                                        patentability affecting 
                                        any claim of the patent 
                                        concerned is raised by 
                                        the request,'' and 
                                        inserting ``the 
                                        information presented 
                                        in the request shows 
                                        that there is a 
                                        reasonable likelihood 
                                        that the requester 
                                        would prevail with 
                                        respect to at least 1 
                                        of the claims 
                                        challenged in the 
                                        request,''; and
                                          (bb) in the second 
                                        sentence, by striking 
                                        ``The existence of a 
                                        substantial new 
                                        question of 
                                        patentability'' and 
                                        inserting ``A showing 
                                        that there is a 
                                        reasonable likelihood 
                                        that the requester 
                                        would prevail with 
                                        respect to at least 1 
                                        of the claims 
                                        challenged in the 
                                        request''; and
                                  (II) in subsection (c), in 
                                the second sentence, by 
                                striking ``no substantial new 
                                question of patentability has 
                                been raised,'' and inserting 
                                ``the showing required by 
                                subsection (a) has not been 
                                made,''; and
                          (ii) in section 313, by striking ``a 
                        substantial new question of 
                        patentability affecting a claim of the 
                        patent is raised'' and inserting ``it 
                        has been shown that there is a 
                        reasonable likelihood that the 
                        requester would prevail with respect to 
                        at least 1 of the claims challenged in 
                        the request''.
                  (B) Application.--The amendments made by this 
                paragraph--
                          (i) shall take effect on the date of 
                        the enactment of this Act; and
                          (ii) shall apply to requests for 
                        inter partes reexamination that are 
                        filed on or after such date of 
                        enactment, but before the effective 
                        date set forth in paragraph (2)(A) of 
                        this subsection.
                  (C) Continued applicability of prior 
                provisions.--The provisions of chapter 31 of 
                title 35, United States Code, as amended by 
                this paragraph, shall continue to apply to 
                requests for inter partes reexamination that 
                are filed before the effective date set forth 
                in paragraph (2)(A) as if subsection (a) had 
                not been enacted.
  Page 54, line 17, strike ``patent owner'' and insert ``owner 
of a patent''.
  Page 54, line 18, strike ``of a'' and insert ``of the''.
  Page 55, line 10, strike ``1 year'' and insert ``9 months''.
  Page 57, line 3, strike ``commence'' and insert ``be 
instituted''.
  Page 57, line 25, strike ``The'' and all that follows through 
``public.'' on page 58, line 1.
  Page 58, lines 11 and 12, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 58, lines 15 and 16, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 58, line 25 and page 59, line 1, strike ``petitioner, 
real party in interest, or privy of the petitioner'' and insert 
``petitioner or real party in interest''.
  Page 59, lines 3 and 4, strike ``petitioner, real party in 
interest, or privy of the petitioner'' and insert ``petitioner 
or real party in interest''.
  Page 63, line 15, strike ``and''.
  Page 63, line 23, strike the period and insert ``; and''.
  Page 63, insert the following after line 23:
          ``(12) providing the petitioner with at least 1 
        opportunity to file written comments within a time 
        period established by the Director.''.
  Page 66, line 24, strike ``Amended or New Claim'' and insert 
``Intervening Rights''.
  Page 68, line 10, strike ``to any patent that is'' and insert 
``only to patents''.
  Page 78, insert the following after line 1 and redesignate 
the succeeding subsection accordingly:
  (d) Conforming Amendments.--
          (1) Atomic energy act of 1954.--Section 152 of the 
        Atomic Energy Act of 1954 (42 U.S.C. 2182) is amended 
        in the third undesignated paragraph--
                  (A) by striking ``Board of Patent Appeals and 
                Interferences'' each place it appears and 
                inserting ``Patent Trial and Appeal Board''; 
                and
                  (B) by inserting ``and derivation'' after 
                ``established for interference''.
          (2) Title 51.--Section 20135 of title 51, United 
        States Code, is amended--
                  (A) in subsections (e) and (f), by striking 
                ``Board of Patent Appeals and Interferences'' 
                each place it appears and inserting ``Patent 
                Trial and Appeal Board''; and
                  (B) in subsection (e), by inserting ``and 
                derivation'' after ``established for 
                interference''.
  Page 86, lines 11 and 12, strike ``examination fee for the 
application'' and insert ``applicable fee''.
  Page 86, line 15, insert ``most recently'' after ``as''.
  Page 86, line 22, strike ``examination fee for the 
application'' and insert ``applicable fee''.
  Page 87, line 1, insert ``most recently'' after ``as''.
  Page 87, strike line 18 and all that follows through page 88, 
line 8, and insert the following:
  ``(d) Institutions of Higher Education.--For purposes of this 
section, a micro entity shall include an applicant who 
certifies that--
          ``(1) the applicant's employer, from which the 
        applicant obtains the majority of the applicant's 
        income, is an institution of higher education as 
        defined in section 101(a) of the Higher Education Act 
        of 1965 (20 U.S.C. 1001(a)); or
          ``(2) the applicant has assigned, granted, conveyed, 
        or is under an obligation by contract or law, to 
        assign, grant, or convey, a license or other ownership 
        interest in the particular applications to such an 
        institution of higher education.
  Page 88, line 9, strike ``(2) Director's authority.--The 
Director'' and insert ``(e) Director's Authority.--In addition 
to the limits imposed by this section, the Director''.
  Page 88, move the text of lines 9 through 21 2 ems to the 
left.
  Page 88, line 12, strike ``subsection'' and insert 
``section''.
  Page 88, line 18, strike ``paragraph'' and insert 
``subsection''.
  Page 89, line 2, strike ``a fee'' and insert ``an additional 
fee''.
  Page 89, line 17, strike ``This'' and insert ``Except as 
provided in subsection (h), this''.
  Page 89, line 22, strike ``6-year'' and insert ``7-year''.
  Page 89, add the following after line 23:
          (3) Prior regulations not affected.--The termination 
        of authority under this subsection shall not affect any 
        regulations issued under this section before the 
        effective date of such termination or any rulemaking 
        proceeding for the issuance of regulations under this 
        section that is pending on such date.
  Page 96, line 15, strike ``either'' and all that follows 
through ``patent'' on line 19 and inserting ``by Office 
personnel''.
  Page 98, strike lines 3 through 14.
  Page 102, insert the following after line 7 and redesignate 
the succeeding subsection accordingly:
  (i) Appropriation Account Transition Fees.--
          (1) Surcharge.--
                  (A) In general.--There shall be a surcharge 
                of 15 percent, rounded by standard arithmetic 
                rules, on all fees charged or authorized by 
                subsections (a), (b), and (d)(1) of section 41, 
                and section 132(b), of title 35, United States 
                Code. Any surcharge imposed under this 
                subsection is, and shall be construed to be, 
                separate from and in addition to any other 
                surcharge imposed under this Act or any other 
                provision of law.
                  (B) Deposit of amounts.--Amounts collected 
                pursuant to the surcharge imposed under 
                subparagraph (A) shall be credited to the 
                United States Patent and Trademark 
                Appropriation Account, shall remain available 
                until expended, and may be used only for the 
                purposes specified in section 42(c)(3)(A) of 
                title 35, United States Code.
          (2) Effective date and termination of surcharge.--The 
        surcharge provided for in paragraph (1)--
                  (A) shall take effect on the date that is 10 
                days after the date of the enactment of this 
                Act; and
                  (B) shall terminate, with respect to a fee to 
                which paragraph (1)(A) applies, on the 
                effective date of the setting or adjustment of 
                that fee pursuant to the exercise of the 
                authority under section 10 for the first time 
                with respect to that fee.
  Page 102, strike lines 1 through 7 and insert the following:
  (h) Prioritized Examination Fee.--
          (1) In general.--
                  (A) Fee.--
                          (i) Prioritized examination fee.--A 
                        fee of $4,800 shall be established for 
                        filing a request, pursuant to section 
                        2(b)(2)(G) of title 35, United States 
                        Code, for prioritized examination of a 
                        nonprovisional application for an 
                        original utility or plant patent.
                          (ii) Additional fees.--In addition to 
                        the prioritized examination fee under 
                        clause (i), the fees due on an 
                        application for which prioritized 
                        examination is being sought are the 
                        filing, search, and examination fees 
                        (including any applicable excess claims 
                        and application size fees), processing 
                        fee, and publication fee for that 
                        application.
                  (B) Regulations; limitations.--
                          (i) Regulations.--The Director may by 
                        regulation prescribe conditions for 
                        acceptance of a request under 
                        subparagraph (A) and a limit on the 
                        number of filings for prioritized 
                        examination that may be accepted.
                          (ii) Limitation on claims.-- Until 
                        regulations are prescribed under clause 
                        (i), no application for which 
                        prioritized examination is requested 
                        may contain or be amended to contain 
                        more than 4 independent claims or more 
                        than 30 total claims.
                          (iii) Limitation on total number of 
                        requests.--The Director may not accept 
                        in any fiscal year more than 10,000 
                        requests for prioritization until 
                        regulations are prescribed under this 
                        subparagraph setting another limit.
          (2) Reduction in fees for small entities.--The 
        Director shall reduce fees for providing prioritized 
        examination of nonprovisional applications for original 
        utility and plant patents by 50 percent for small 
        entities that qualify for reduced fees under section 
        41(h)(1) of title 35, United States Code.
          (3) Deposit of fees.--All fees paid under this 
        subsection shall be credited to the United States 
        Patent and Trademark Office Appropriation Account, 
        shall remain available until expended, and may be used 
        only for the purposes specified in section 42(c)(3)(A) 
        of title 35, United States Code.
          (4) Effective date and termination.--
                  (A) Effective date.--This subsection shall 
                take effect on the date that is 10 days after 
                the date of the enactment of this Act.
                  (B) Termination.--The fee imposed under 
                paragraph (1)(A)(i), and the reduced fee under 
                paragraph (2), shall terminate on the effective 
                date of the setting or adjustment of the fee 
                under paragraph (1)(A)(i) pursuant to the 
                exercise of the authority under section 10 for 
                the first time with respect to that fee.
  Page 102, lines 8 and 9, strike ``Except as provided in 
subsection (h),'' and insert ``Except as otherwise provided in 
this section,''.
  Page 105, strike lines 1 through 11.
  Page 105, add the following after line 25 and redesignate the 
succeeding subsection accordingly:
  ``(e) Fraud.--If the Director becomes aware, during the 
course of a supplemental examination or reexamination 
proceeding ordered under this section, that a material fraud on 
the Office may have been committed in connection with the 
patent that is the subject of the supplemental examination, 
then in addition to any other actions the Director is 
authorized to take, including the cancellation of any claims 
found to be invalid under section 307 as a result of a 
reexamination ordered under this section, the Director shall 
also refer the matter to the Attorney General for such further 
action as the Attorney General may deem appropriate. Any such 
referral shall be treated as confidential, shall not be 
included in the file of the patent, and shall not be disclosed 
to the public unless the United States charges a person with a 
criminal offense in connection with such referral.
  Page 111, strike lines 13 through 24 and insert the 
following:
  ``(c) The marking of a product, in a manner described in 
subsection (a), with matter relating to a patent that covered 
that product but has expired is not a violation of this 
section.''.
  Page 112, line 2, strike ``any case that is'' and insert 
``all cases, without exception, that are''.
  Page 113, line 13, insert ``or privy'' after ``interest''.
  Page 114, lines 15 and 16, strike ``The petitioner in a 
transitional proceeding,'' and insert the following: ``The 
petitioner in a transitional proceeding that results in a final 
written decision under section 328(a) of title 35, United 
States Code, with respect to a claim in a covered business 
method patent,''.
  Page 114, line 22, strike ``a claim in a patent'' and insert 
``the claim''.
  Page 114, lines 23-25, strike ``a transitional proceeding 
that resulted in a final decision'' and insert ``that 
transitional proceeding''.
  Page 115, line 18, strike ``10-'' and insert ``8-''.
  Page 120, strike line 17 and all that follows through the 
matter following line 10 on page 121 and redesignate succeeding 
subsections accordingly.
  Page 121, line 17, strike ``In any'' and insert ``With 
respect to any''.
  Page 121, line 22, insert ``, or have their actions 
consolidated for trial,'' after ``defendants''.
  Page 122, line 9, strike ``or trial''.
  Page 122, line 10, insert ``, or have their actions 
consolidated for trial,'' after ``defendants''.
  Page 122, line 11, strike the quotation marks and second 
period.
  Page 122, insert the following after line 11:
  ``(c) Waiver.--A party that is an accused infringer may waive 
the limitations set forth in this section with respect to that 
party.''.
  Page 126, line 13, strike ``patent,'' and all that follows 
through the first appearance of ``and'' on line 17 and insert 
``a patent,''.
  Page 128, insert the following after line 23 and redesignate 
the succeeding subsection accordingly:
  (k) Additional Technical Amendments.--Sections 155 and 155A 
of title 35, United States Code, and the items relating to 
those sections in the table of sections for chapter 14 of such 
title, are repealed.
  Page 130, strike line 3 and all that follows through page 
134, line 17, and insert the following:

SEC. 22. PATENT AND TRADEMARK OFFICE FUNDING.

  (a) In General.--Section 42(c) of title 35, United States 
Code, is amended--
          (1) by striking ``(c)'' and inserting ``(c)(1)'';
          (2) in the first sentence, by striking ``shall be 
        available'' and inserting ``shall, subject to paragraph 
        (3), be available'';
          (3) by striking the second sentence; and
          (4) by adding at the end the following:
  ``(2) There is established in the Treasury a Patent and 
Trademark Fee Reserve Fund. If fee collections by the Patent 
and Trademark Office for a fiscal year exceed the amount 
appropriated to the Office for that fiscal year, fees collected 
in excess of the appropriated amount shall be deposited in the 
Patent and Trademark Fee Reserve Fund. To the extent and in the 
amounts provided in appropriations Acts, amounts in the Fund 
shall be made available until expended only for obligation and 
expenditure by the Office in accordance with paragraph (3).
  ``(3)(A) Any fees that are collected under sections 41, 42, 
and 376, and any surcharges on such fees, may only be used for 
expenses of the Office relating to the processing of patent 
applications and for other activities, services, and materials 
relating to patents and to cover a share of the administrative 
costs of the Office relating to patents.
  ``(B) Any fees that are collected under section 31 of the 
Trademark Act of 1946, and any surcharges on such fees, may 
only be used for expenses of the Office relating to the 
processing of trademark registrations and for other activities, 
services, and materials relating to trademarks and to cover a 
share of the administrative costs of the Office relating to 
trademarks.''.
  (b) Effective Date.--The amendments made by this section 
shall take effect on October 1, 2011.
  Page 137, strike lines 1 through 7 and redesignate the 
succeeding sections (and conform the table of contents) 
accordingly.
  Page 137, lines 8 and 9, strike ``TECHNOLOGIES IMPORTANT TO 
AMERICAN COMPETITIVENESS'' and insert ``IMPORTANT 
TECHNOLOGIES'' (and conform the table of contents accordingly).
  Page 138, strike lines 1 through 21 and redesignate 
succeeding sections (and conform the table of contents) 
accordingly.
  Page 139, insert the following after line 12 and redesignate 
the succeeding sections (and conform the table of contents) 
accordingly:

SEC. 27. STUDY ON GENETIC TESTING.

  (a) In General.--The Director shall conduct a study on 
effective ways to provide independent, confirming genetic 
diagnostic test activity where gene patents and exclusive 
licensing for primary genetic diagnostic tests exist.
  (b) Items Included in Study.--The study shall include an 
examination of at least the following:
          (1) The impact that the current lack of independent 
        second opinion testing has had on the ability to 
        provide the highest level of medical care to patients 
        and recipients of genetic diagnostic testing, and on 
        inhibiting innovation to existing testing and 
        diagnoses.
          (2) The effect that providing independent second 
        opinion genetic diagnostic testing would have on the 
        existing patent and license holders of an exclusive 
        genetic test.
          (3) The impact that current exclusive licensing and 
        patents on genetic testing activity has on the practice 
        of medicine, including but not limited to: the 
        interpretation of testing results and performance of 
        testing procedures.
          (4) The role that cost and insurance coverage have on 
        access to and provision of genetic diagnostic tests.
  (c) Confirming Genetic Diagnostic Test Activity Defined.--For 
purposes of this section, the term ``confirming genetic 
diagnostic test activity'' means the performance of a genetic 
diagnostic test, by a genetic diagnostic test provider, on an 
individual solely for the purpose of providing the individual 
with an independent confirmation of results obtained from 
another test provider's prior performance of the test on the 
individual.
  (d) Report.--Not later than 9 months after the date of 
enactment of this Act, the Director shall report to the 
Committee on the Judiciary of the Senate and the Committee on 
the Judiciary of the House of Representatives on the findings 
of the study and provide recommendations for establishing the 
availability of such independent confirming genetic diagnostic 
test activity.

SEC. 28. PATENT OMBUDSMAN PROGRAM FOR SMALL BUSINESS CONCERNS.

  Using available resources, the Director shall establish and 
maintain in the Office a Patent Ombudsman Program. The duties 
of the Program's staff shall include providing support and 
services relating to patent filings to small business concerns 
and independent inventors.
  Page 139, insert the following after line 20 and redesignate 
the succeeding sections (and conform the table of contents) 
accordingly:

SEC. 30. LIMITATION ON ISSUANCE OF PATENTS.

  (a) Limitation.--Notwithstanding any other provision of law, 
no patent may issue on a claim directed to or encompassing a 
human organism.
  (b) Effective Date.--
          (1) In general.--Subsection (a) shall apply to any 
        application for patent that is pending on, or filed on 
        or after, the date of the enactment of this Act.
          (2) Prior applications.--Subsection (a) shall not 
        affect the validity of any patent issued on an 
        application to which paragraph (1) does not apply.

SEC. 31. STUDY OF PATENT LITIGATION.

  (a) GAO Study.--The Comptroller General of the United States 
shall conduct a study of the consequences of litigation by non-
practicing entities, or by patent assertion entities, related 
to patent claims made under title 35, United States Code, and 
regulations authorized by that title.
  (b) Contents of Study.--The study conducted under this 
section shall include the following:
          (1) The annual volume of litigation described in 
        subsection (a) over the 20-year period ending on the 
        date of the enactment of this Act.
          (2) The volume of cases comprising such litigation 
        that are found to be without merit after judicial 
        review.
          (3) The impacts of such litigation on the time 
        required to resolve patent claims.
          (4) The estimated costs, including the estimated cost 
        of defense, associated with such litigation for patent 
        holders, patent licensors, patent licensees, and 
        inventors, and for users of alternate or competing 
        innovations.
          (5) The economic impact of such litigation on the 
        economy of the United States, including the impact on 
        inventors, job creation, employers, employees, and 
        consumers.
          (6) The benefit to commerce, if any, supplied by non-
        practicing entities or patent assertion entities that 
        prosecute such litigation.
  (c) Report to Congress.--The Comptroller General shall, not 
later than the date that is 1 year after the date of the 
enactment of this Act, submit to the Committee on the Judiciary 
of the House of Representatives and the Committee on the 
Judiciary of the Senate a report on the results of the study 
required under this section, including recommendations for any 
changes to laws and regulations that will minimize any negative 
impact of patent litigation that was the subject of such study.
                              ----------                              

    2. An Amendment To Be Offered by Representative Conyers, Jr. of 
           Michigan or His Designee, Debatable for 10 Minutes

  Page 24, strike line 3 and all that follows through page 25, 
line 12, and insert the following:
  (n) Effective Date.--
          (1) In general.--The amendments made by this 
        section--
                  (A) shall take effect 90 days after the date 
                on which the President issues an Executive 
                order containing the President's finding that 
                major patenting authorities have adopted a 
                grace period having substantially the same 
                effect as that contained under the amendments 
                made by this section; and
                  (B) shall apply to all applications for 
                patent that are filed on or after the effective 
                date under subparagraph (A).
          (2) Definitions.--In this subsection:
                  (A) Major patenting authorities.--The term 
                ``major patenting authorities'' means at least 
                the patenting authorities in Europe and Japan.
                  (B) Grace period.--The term ``grace period'' 
                means the 1-year period ending on the effective 
                filing date of a claimed invention, during 
                which disclosures of the subject matter by the 
                inventor or a joint inventor, or by others who 
                obtained the subject matter disclosed directly 
                or indirectly from the inventor or a joint 
                inventor, do not qualify as prior art to the 
                claimed invention.
                  (C) Effective filing date.-- The term 
                ``effective filing date of a claimed 
                invention'' means, with respect to a patenting 
                authority in another country, a date equivalent 
                to the effective filing date of a claimed 
                invention as defined in section 100(i) of title 
                35, United States Code, as added by subsection 
                (a) of this section.
          (3) Retention of interference procedures with respect 
        to applications filed before effective date.--In the 
        case of any application for patent that is filed before 
        the effective date under paragraph (1)(A), the 
        provisions of law amended by subsections (h) and (i) 
        shall apply to such application as such provisions of 
        law were in effect on the day before such effective 
        date.
  Page 11, lines 21-23, strike ``upon the expiration of the 18-
month period beginning on the date of the enactment of this 
Act,'' and insert ``on the effective date provided in 
subsection (n)''.
                              ----------                              

3. An Amendment To Be Offered by Representative Baldwin of Wisconsin or 
                 Her Designee, Debatable for 10 Minutes

  Strike section 5 (``Defense to Infringement Based on Prior 
Commercial Use''), as amended, and redesignate succeeding 
sections and references thereto (and conform the table of 
contents) accordingly.
  Page 68, line 9, strike ``section 18'' and insert ``section 
17''.
  Page 115, line 10, strike ``6(f)(2)(A)'' and insert 
``5(f)(2)(A)''.
                              ----------                              

 4. An Amendment To Be Offered by Representative Moore of Wisconsin or 
                 Her Designee, Debatable for 10 Minutes

  Page 139, insert the following after line 12 and redesignate 
succeeding sections (and conform the table of contents) 
accordingly:

SEC. 29. ESTABLISHMENT OF METHODS FOR STUDYING THE DIVERSITY OF 
                    APPLICANTS.

  The Director shall, not later than the end of the 6-month 
period beginning on the date of the enactment of this Act, 
establish methods for studying the diversity of patent 
applicants, including those applicants who are minorities, 
women, or veterans. The Director shall not use the results of 
such study to provide any preferential treatment to patent 
applicants.
                              ----------                              

5. An Amendment To Be Offered by Representative Jackson Lee of Texas or 
                 Her Designee, Debatable for 10 Minutes

  Page 139, insert the following after line 12 and redesignate 
succeeding sections (and conform the table of contents) 
accordingly:

SEC. 29. SENSE OF CONGRESS.

  It is the sense of Congress that the patent system should 
promote industries to continue to develop new technologies that 
spur growth and create jobs across the country which includes 
protecting the rights of small businesses and inventors from 
predatory behavior that could result in the cutting off of 
innovation.
                              ----------                              

6. An Amendment To Be Offered by Representative Lujan of New Mexico or 
                 His Designee, Debatable for 10 Minutes

  Page 135, line 22, strike the period and insert a semicolon.
  Page 135, after line 22, insert the following:
                  (C) shall evaluate and consider the extent to 
                which the purposes of satellite offices listed 
                under subsection (b) will be achieved;
                  (D) shall consider the availability of 
                scientific and technically knowledgeable 
                personnel in the region from which to draw new 
                patent examiners at minimal recruitment cost; 
                and
                  (E) shall consider the economic impact to the 
                region.
  Page 136, line 9, insert before the semicolon the following: 
``, including an explanation of how the selected location will 
achieve the purposes of satellite offices listed under 
subsection (b) and how the required considerations listed under 
subsection (c) were met''.
                              ----------                              

 7. An Amendment To Be Offered by Representative Peters of Michigan or 
                 His Designee, Debatable for 10 Minutes

  Page 139, insert the following after line 12 and redesignate 
succeeding sections (and conform the table of contents) 
accordingly:

SEC. 29. USPTO STUDY ON INTERNATIONAL PATENT PROTECTIONS FOR SMALL 
                    BUSINESSES.

  (a) Study Required.--The Director, in consultation with the 
Secretary of Commerce and the Administrator of the Small 
Business Administration, shall, using the existing resources of 
the Office, carry out a study--
          (1) to determine how the Office, in coordination with 
        other Federal departments and agencies, can best help 
        small businesses with international patent protection; 
        and
          (2) whether, in order to help small businesses pay 
        for the costs of filing, maintaining, and enforcing 
        international patent applications, there should be 
        established either--
                  (A) a revolving fund loan program to make 
                loans to small businesses to defray the costs 
                of such applications, maintenance, and 
                enforcement and related technical assistance; 
                or
                  (B) a grant program to defray the costs of 
                such applications, maintenance, and enforcement 
                and related technical assistance.
  (b) Report.--Not later than 120 days after the date of the 
enactment of this Act, the Director shall issue a report to the 
Congress containing--
          (1) all findings and determinations made in carrying 
        out the study required under subsection (a);
          (2) a statement of whether the determination was made 
        that--
                  (A) a revolving fund loan program described 
                under subsection (a)(2)(A) should be 
                established;
                  (B) a grant program described under 
                subsection (a)(2)(B) should be established; or
                  (C) neither such program should be 
                established; and
          (3) any legislative recommendations the Director may 
        have developed in carrying out such study.
                              ----------                              

 8. An Amendment To Be Offered by Representative Polis of Colorado or 
                 His Designee, Debatable for 10 Minutes

  Page 108, beginning on line 18, strike ``pending on, or filed 
on or after,'' and insert ``filed on or after''.
                              ----------                              

    9. An Amendment To Be Offered by Representative Conyers, Jr. of 
           Michigan or His Designee, Debatable for 10 Minutes

  Add at the end the following new section (and conform the 
table of contents accordingly):

SEC. 32. CALCULATION OF 60-DAY PERIOD FOR APPLICATION OF PATENT TERM 
                    EXTENSION.

  (a) In General.--Section 156(d)(1) of title 35, United States 
Code, is amended by adding at the end the following flush 
sentence:

``For purposes of determining the date on which a product 
receives permission under the second sentence of this 
paragraph, if such permission is transmitted after 4:30 P.M., 
Eastern Time, on a business day, or is transmitted on a day 
that is not a business day, the product shall be deemed to 
receive such permission on the next business day. For purposes 
of the preceding sentence, the term `business day' means any 
Monday, Tuesday, Wednesday, Thursday, or Friday, excluding any 
legal holiday under section 6103 of title 5.''.
  (b) Applicability.--The amendment made by subsection (a) 
shall apply to any application for extension of a patent term 
under section 156 of title 35, United States Code, that is 
pending on, that is filed after, or as to which a decision 
regarding the application is subject to judicial review on, the 
date of the enactment of this Act.
                              ----------                              

 10. An Amendment To Be Offered by Representative Speier of California 
               or Her Designee, Debatable for 10 Minutes

  Page 16, line 3, insert before the period the following: ``, 
including requiring parties to provide sufficient evidence to 
prove and rebut a claim of derivation''.
                              ----------                              

 11. An Amendment To Be Offered by Representative Waters of California 
               or Her Designee, Debatable for 10 Minutes

  Page 139, insert the following after line 12 and redesignate 
succeeding sections (and conform the table of contents) 
accordingly:

SEC. 29. SEVERABILITY.

  If any provision of this Act or amendment made by this Act, 
or the application of a provision or amendment to any person or 
circumstance, is held to be unconstitutional, the remainder of 
this Act and amendments made by this Act, and the application 
of the provisions and amendment to any person or circumstance, 
shall not be affected by the holding.
                              ----------                              

12. An Amendment To Be Offered by Representative Sensenbrenner, Jr. of 
          Wisconsin or His Designee, Debatable for 10 Minutes

  Strike section 3 (``First Inventor to File''), as amended, 
beginning on page 5, line 1, and redesignate succeeding 
sections and references thereto (and conform the table of 
contents) accordingly.
  Page 68, line 9, strike ``section 18'' and all that follows 
through ``3(n)(1)'' on line 11 and insert ``section 17 and in 
paragraph (3), shall apply to any patent for which an 
application is filed on or after that effective date''.
  Page 74, line 3, strike ``derivation'' and insert 
``interference''.
  Page 74, line 7, strike ``derivation'' and insert 
``interference''.
  Page 76, line 7, strike ``Derivation'' and insert 
``Interference''.
  Page 76, lines 7 and 8, strike ``a derivation'' and insert 
``an interference''.
  Page 76, lines 12 and 25, strike ``derivation'' and insert 
``interference''.
  Page 77, line 6, strike ``a derivation'' and insert ``an 
interference''.
  Page 77, line 10, strike ``derivation'' and insert 
``interference''.
  Page 77, line 23, strike ``a derivation'' and insert ``an 
interference''.
  In section 7 (``Patent Trial and Appeal Board''), as amended, 
strike subsection (d) (``Conforming Amendments'') and insert 
the following:
  (d) Conforming Amendments.--
          (1) Amendments to title 35.--Sections 134, 145, 146, 
        154, and 305 of title 35, United States Code, are each 
        amended by striking ``Board of Patent Appeals and 
        Interferences'' each place that term appears and 
        inserting ``Patent Trial and Appeal Board''.
          (2) Atomic energy act of 1954.--Section 152 of the 
        Atomic Energy Act of 1954 (42 U.S.C. 2182) is amended, 
        in the third undesignated paragraph, by striking 
        ``Board of Patent Appeals and Interferences'' each 
        place it appears and inserting ``Patent Trial and 
        Appeal Board''.
          (3) Title 51.--Section 20135 of title 51, United 
        States Code, is amended, in subsections (e) and (f), by 
        striking ``Board of Patent Appeals and Interferences'' 
        each place it appears and inserting ``Patent Trial and 
        Appeal Board''.
  Page 113, line 20, strike ``as in effect'' and all that 
follows through ``3(n)(1),'' on line 22.
  Page 113, line 25, strike ``(as in'' and all that follows 
through ``date)'' on page 114, line 1.
  Page 114, line 9, strike ``(as in effect'' and all that 
follows through ``3(n)(1)'' on line 11.
  Page 115, line 10, strike ``6(f)(2)(A)'' and insert 
``5(f)(2)(A)''.
                              ----------                              

 13. An Amendment To Be Offered by Representative Manzullo of Illinois 
               or His Designee, Debatable for 10 Minutes

  Strike section 10 (beginning on page 81, line 14; ``Fee 
Setting Authority''), as amended, and insert the following (and 
conform the table of contents accordingly):

SEC. 10. ELECTRONIC FILING INCENTIVE.

  (a) In General.--An additional fee of $400 shall be 
established for each application for an original patent, except 
for a design, plant, or provisional application, that is not 
filed by electronic means as prescribed by the Director. The 
fee established by this subsection shall be reduced by 50 
percent for small entities that qualify for reduced fees under 
section 41(h)(1) of title 35, United States Code. All fees paid 
under this subsection shall be deposited in the Treasury as an 
offsetting receipt that shall not be available for obligation 
or expenditure.
  (b) Effective Date.--This section shall take effect upon the 
expiration of the 60-day period beginning on the date of the 
enactment of this Act.
                              ----------                              

    14. An Amendment To Be Offered by Representative Rohrabacher of 
          California or His Designee, Debatable for 10 Minutes

  Page 73, after line 2, insert the following new subsection:
  (i) Inapplicability of Post-Grant Review to Certain Small 
Entities.--
          (1) In general.--Notwithstanding any other provision 
        of law, a patent granted to a United States citizen, an 
        individually lawfully admitted for permanent residence 
        in the United States, or a United States company with 
        less than 100 employees shall not be subject to any 
        form of post-grant review or reexamination.
          (2) Rulemaking.--The Director shall issue such 
        regulations as may be necessary to carry out this 
        subsection.
                              ----------                              

15. An Amendment To Be Offered by Representative Schock of Illinois or 
                 His Designee, Debatable for 10 Minutes

  Page 112, strike line 18 and all that follows through page 
118, line 2, and redesignate succeeding sections and references 
thereto (and conform the table of contents) accordingly.
  Page 68, line 9, strike ``in section 18 and''.

                                  
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