S10722 CONGRESSIONAL RECORD — SENATE November 20, 2008 

the fact that they employ nearly 40 

percent of America’s scientists and engineers, produce more than 14 times 

more patents than large businesses and 

universities, and produce patents that 

are of higher quality and are more than 

twice as likely to be cited. Unlike large 

businesses, which tend to focus more 

on improving existing product lines, 

and university research, which leans 

toward education and publications, 

America’s small businesses and entrepreneurs are the ones willing to take 

on the high-risk, high-reward research 

that truly drives innovation. 

The SBIR and STTR programs are 

two of the very few Federal programs 

that tap into the scientific and technical community found in America’s 

small businesses. These programs foster government-industry partnerships 

by making competitive awards to firms 

with the best scientific proposals in response to the research needs of our 

agencies and by helping to move technologies from the lab to the marketplace or from the lab to insertion in a 

government program or system. 

Since the inception of the SBIR program in 1982, recipients of SBIR and 

STTR awards have gone on to produce 

more than 84,000 patents and to generate millions of well-paying jobs 

across all 50 States. Both programs 

have garnered high praise from well-respected sources, including from the National Academy of Sciences, which 

completed its comprehensive assessment of SBIR last year. Governments 

around the world are increasingly 

adopting SBIR-type programs to encourage innovation in their countries. 

Among the technologies pioneered by 

SBIR-funded small businesses are a 

machine that uses lasers and computer 

cameras to sort and inspect bullets at 

a much finer level than the human eye 

can manage, the technology that creates the ‘‘invisible’’ condensation trail 

of the B–2 bomber, a therapeutic drug 

to treat chronic inflammatory disease, 

and a nerve gas protection system. 

With regard to the bullet sorting technology, developed by CyberNet Systems, a small, women-owned business 

located in Ann Arbor, MI, and currently in use in Iraq and Afghanistan, 

that SBIR technology is estimated to 

have saved taxpayers more than $300 

million. Those are real cost savings 

and tangible technological improvements and we could have more such 

technologies if we increased the SBIR 

and STTR allocations, as the legislation that passed Committee proposed 

to do. 

S. 3362 is the result of much deliberation and compromise and reflects a 

truly bipartisan effort to strengthen 

and improve the SBIR and STTR programs. I am proud that Senator SNOWE, 

Senator BOND, myself, and others were 

able to come together to reach agreement on a number of very difficult 

issues, including on the involvement of 

firms majority-owned and controlled 

by multiple venture capital companies 

in the SBIR program, and that we 

unanimously passed this legislation 

out of committee. And as I said at the 

start of my remarks, I am also proud 

that we were able to resolve our differences with the administration to 

craft a bill that would keep these programs going strong. 

It is truly a shame that one Republican in this Chamber has blocked this 

bill from passing, and that all of the effort and all of the compromises that 

went into getting the legislation to 

this point will be lost. I ask my colleagues to be aware that the SBIR program is temporarily authorized 

through March 20, 2009, that the STTR 

program expires on September 30, 2009, 

and that we should act fast in the new 

year to extend or comprehensively authorize these programs to help keep 

our country ahead in technology. 

f 

INTEREST ON LAWYERS’ TRUST 

ACCOUNT PROGRAM 

Mr. LEAHY. Mr. Presdient, last 

week, I joined Senator CARDIN and Senators SPECTER, and others in sending a 

letter to the Federal Deposit Insurance 

Corporation, FDIC, in an effort to preserve the viability of the Interest on 

Lawyers’ Trust Account program, 

IOLTA. We have asked the FDIC to ensure that the Transaction Account 

Guarantee Program, TGLP, through 

which the FDIC guarantees funds in 

bank accounts, will also cover lawyer 

trust accounts. The IOLTA program, 

which distributes interest on client 

funds held in lawyer trust accounts to 

legal aid programs, has been an enormous success in securing legal representation for lower-income Americans. All 50 States have IOLTA programs, and many States mandate participation by practicing attorneys. 

This program provides funding to important legal aid programs and helps 

ensure that no person goes without 

legal representation because of a lack 

of resources. 

Our concern stems from the fact that 

the TGLP Interim Rule concerning account insurance issued on October 23 

would not extend unlimited FDIC insurance to interest bearing lawyer 

trust accounts, ultimately hurting the 

public benefit generated by these accounts. According to the FDIC’s proposed rules for the TGLP, noninterestbearing accounts would be insured to 

protect an unlimited amount of funds. 

But the insurance for interest-bearing 

accounts would be limited to $250,000. 

The lack of an exception for lawyer 

trust accounts threatens the IOLTA 

program because it poses a potential 

conflict for attorneys. Many lawyer 

trust accounts contain pooled client 

funds, often in excess of $250,000. As a 

result of the FDIC’s proposed rules, 

there is legitimate concern that attorneys would move client funds in excess 

of $250,000 to noninterest-bearing accounts in order to gain the insurance 

protection, and in an effort to manage 

client funds as responsibly as possible. 

This potential ethical dilemma could 

be prevented by a modification of the 

proposed rules. 

Senator CARDIN, Senator SPECTER, 

and I have suggested to the FDIC that 

it modify its proposed rules to make an 

exception for lawyer trust accounts 

and provide unlimited insurance on interest bearing accounts containing client funds. This would be an important 

step towards preserving the success of 

the IOLTA program, and would remove 

any potential ethical dilemma for attorneys. Such a modification would ensure that the interest generated by 

IOLTA accounts continues to be distributed through local nonprofit organizations in each State to fund invaluable legal aid services for low-income 

families. 

I am hopeful that the FDIC will recognize the national importance and 

success of this program, and will create 

the exception we have proposed. I 

would like to particularly thank the 

Vermont Bar Association for its advocacy in this regard, as well as the 

American Bar Association for its attention to this issue. Legal representation for everyone is an imperative for a 

fair and effective judicial system. The 

IOLTA program has been successful in 

helping to ensure legal representation 

for more Americans, and where these 

goals can be accomplished without the 

use of tax dollars, such a program 

should be preserved. 

f 

REMEMBERING COLONEL JOHN W. 

RIPLEY 

Mr. LEAHY. Mr. President, I regret 

to have to inform the Senate of the 

passing of a truly great American: 

John W. Ripley, a retired Marine Corps 

colonel and hero of the Vietnam war. 

Colonel Ripley will be best known for 

his achievements and self-sacrifice during the Vietnam war—particularly on 

April 2, 1972, when he singlehandedly 

blew up the Dong Ha bridge. That 

bridge over the Cua Viet River was a 

major thoroughfare for an invasion 

force from North Vietnam. Colonel 

Ripley, serving with a marine unit 

from South Vietnam, moved around 

the bridge like it was a trapeze and 

hung charges that would blow it up and 

prevent the enemy’s advance. 

That story is the subject of innumerable books and articles. It is an absolutely incredible feat, showing us how 

an act of individual bravery can have a 

large strategic impact that affects an 

entire force. Indeed, the removal of 

that bridge created a bottleneck that 

allowed allied forces to apply overwhelming air power and blunt that invasion. 

After Vietnam, Colonel Ripley had a 

distinguished career that included 

going through some of the most challenging training programs among the 

world’s militaries, including U.S. Army 

Ranger School. In his willingness to 

undergo the ardors of combat and 

training, he emerged a marine’s marine, a steely and strong individual always ready to put his country and his 

fellow marines before himself. 


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November 20, 2008 CONGRESSIONAL RECORD — SENATE S10723 

John Ripley is a symbol for the vibrancy of the Marine Corps, one of the 

most storied military forces in the 

globe’s history, and a testament to 

how—amid the enormity and vast confusion of war—a single person can 

make a difference. 

I will miss seeing him at various 

events, including those of the Marine 

Corps Law Enforcement Foundation. 

We will continue to honor his service 

through support of the Marine Corps 

and of all of our soldiers, sailors, airmen, and marines. 

I ask unanimous consent that an 

obituary on Colonel Ripley, which appeared in the November 4 edition of the 

New York Times, be printed in the 

RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

[From the New York Times, Nov. 4, 2008] 

COL. JOHN W. RIPLEY, MARINE WHO HALTED

VIETNAMESE ATTACK, DIES AT 69 

(By Dennis Hevesi) 

John W. Ripley, a highly decorated former 

colonel who entered Marine Corps lore when 

he single-handedly blunted a major North 

Vietnamese offensive during the Vietnam 

War by blowing up a strategically placed 

bridge, died Oct. 28 at his home in Annapolis, 

Md. He was 69. 

The cause has not been determined, his son 

Stephen said. 

Colonel Ripley, who at the time was a captain and a military adviser to a South Vietnamese Marine unit, blew up the southern 

end of the Dong Ha Bridge over the Cua Viet 

River on Easter Sunday, April 2, 1972. On the 

north side of the bridge, which was several 

miles south of the demilitarized zone, some 

20,000 North Vietnamese troops and 200 tanks 

were poised to sweep into Quang Tri Province, which was sparsely defended. 

Going back and forth for three hours while 

under fire, Captain Ripley swung hand over 

hand along the steel I-beams beneath the 

bridge, securing himself between girders and 

placing crates holding a total of 500 pounds 

of TNT in a diagonal line from one side of 

the structure to the other. The I-beam wings 

were just wide enough to form pathways 

along which he could slide the boxes. 

When the boxes were in place on the 

bridge, Captain Ripley attached blasting 

caps to detonate the TNT, then connected 

them with a timed-fuse cord that eventually 

extended hundreds of feet. 

‘‘He had to bite down on the blasting caps 

to attach them to the fuses,’’ John Grider 

Miller, author of ‘‘The Bridge at Dong Ha,’’ 

said on Monday. ‘‘If he bit too low on the 

blasting cap, it could come loose; if he bit 

too high, it could blow his head apart.’’ 

Captain Ripley bit safely, and the timedfuse cord gave him about half an hour to 

clamber off the bridge. Moments later, his 

work paid off with a shock wave that tossed 

him into the air but otherwise left him 

unharmed. 

By placing the crates diagonally along the 

bridge, Mr. Miller said, Captain Ripley had 

created ‘‘a twisting motion that ripped the 

bridge apart from its moorings so it couldn’t 

fall back in place, but collapsed into the 

river.’’ 

There were about 600 South Vietnamese 

marines near the south end of the bridge. 

‘‘South Vietnam would have been in big 

trouble,’’ said Fred Schultz, senior editor of 

Naval History Magazine, a publication of the 

United States Naval Institute. ‘‘The force 

numbers defending on that side could not 

have held against that North Vietnamese 

force.’’ 

The destruction of the bridge created a 

bottleneck for the North Vietnamese, allowing American bombers to blunt what became 

known as the Easter offensive. 

Captain Ripley was awarded the Navy 

Cross for his actions at the bridge. He served 

two tours in Vietnam and remained on active duty until 1992, eventually rising to 

colonel. Among other decorations, he received the Silver Star, two Bronze Stars and 

a Purple Heart. 

John Walter Ripley was born on June 29, 

1939, and grew up in Radford, Va., the son of 

Bud and Verna Holt Ripley. He enlisted in 

the Marines out of high school in 1956, and a 

year later received approval from the secretary of the Navy to attend a preparatory 

school leading to his appointment to the 

Naval Academy, from which he graduated in 

1962. 

Besides his son Stephen, Colonel Ripley is 

survived by his wife of 44 years, the former 

Moline Blaylock; a sister, Susan 

Goodykoontz; two other sons, Thomas and 

John; a daughter, Mary Ripley; and eight 

grandchildren. 

‘‘Colonel Ripley is well known in marine 

circles,’’ Mr. Schultz said, ‘‘but he’s the most 

revered war hero no one’s ever heard of.’’ 

‘‘This was 1972,’’ he added, ‘‘and people 

didn’t pay too much attention to war heroes 

at that time.’’ 

f 

INTELLECTUAL PROPERTY RIGHTS 

CHALLENGES 

Mr. LEAHY. Mr. President, I have 

long been a champion of the intellectual property rights enshrined in the 

Constitution, and have sponsored much 

of the significant legislation in that 

realm over the decades I have served in 

the Senate. On October 24, 2008, Judge 

Richard Linn of the Court of Appeals 

for the Federal Circuit, the court entrusted exclusively with Federal appeals involving patent issues, gave the 

keynote address before the American 

Intellectual Property Law Association’s annual meeting. In that address, 

Judge Linn discusses the challenges 

facing the intellectual property system 

in the coming years, offers advice on 

moving forward as a nation to meet 

those challenges, and provides food for 

thought for anyone interested in this 

important part of our national economy. 

I ask unanimous consent that the 

statement of Judge Richard Linn from 

October 24, 2008, be printed in the 

RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

CHALLENGES AHEAD

I would like to thank the AIPLA for the invitation to speak before you today. I am 

truly honored to speak before the AIPLA, an 

organization I have belonged to since the 

late 60’s. I see in the audience many of my 

friends and former colleagues of the patent 

bar. I feel very much at home here, and it is 

nice to be asked to speak before this distinguished group. 

Before I begin, I would like to take a moment to personally recognize someone who 

has played a unique role in the progress of 

the U.S. patent system for over 40 years, 

someone who has led this organization for 

the past decade and a half, someone who has 

been a special friend to so many of us, and 

someone who is now moving on to a well deserved retirement—Mike Kirk. Please join 

me in a round of applause to show our appreciation for Mike and all that he has done. 

We all know that Mike has done some very 

special things for the AIPLA. But the best 

thing he did was to bring his wife, Mary 

Catherine, into our AIPLA family. I think 

she, too, deserves to be recognized for all she 

has done. 

One measure of a leader is the caliber of 

the person selected to replace him. And here 

again, the AIPLA has risen to the challenge 

of Mike Kirk’s departure in selecting one of 

the few members of our profession who has 

the character, knowledge, and recognized 

leadership skills to honor Mike’s legacy of 

accomplishment. That person is, of course, 

Q. Todd Dickenson, and I think he deserves 

a vote of confidence with a round of applause. 

The program lists my topic as ‘‘Challenges 

Ahead.’’ I selected that topic intentionally 

to give me lots of latitude in what I might 

say. If that phrase was a limitation in a patent claim, the meaning would be hard to discern with specificity and no doubt would 

generate considerable litigation. In a way, 

it’s the perfect topic. So, what is it that I am 

going to talk about? 

John Whealan yesterday focused on recent 

history and ended with a few comments on 

the future. Instead, I will focus on some of 

the challenges I see for the future and will 

begin with a few comments on the changes of 

the recent past. 

We hear a lot about change these days. 

Change in our economy, global climate 

change, and of course, change in our government. Change has been in the air for some 

time. It seems like the only thing we have 

heard, or seen, or read in the media for the 

past 20 months or so has been about change. 

And intellectual property law has been no 

stranger to it in the past few years. While 

one can debate the extent of the changes and 

the reasons underlying them, there is no 

question that the rights of patentees have 

been impacted in one way or the other by a 

number of recent decisions. And while the 

pace of change may slow down at least for a 

while, the fallout of all of this change will 

directly impact all of us. This is evident, for 

example, from an examination of three key 

decisions: KSR v. Teleflex, dealing with the 

test for obviousness; eBay v. MercExchange, 

dealing with the test for injunctive relief; 

and In re Seagate, dealing with the standard 

applicable to prove willful infringement. 

There have been others, such as Medlmmune 

v. Genentech, which made it easier to challenge patents in declaratory judgment actions, and DSU v. JMS, requiring proof of 

specific intent for induced infringement, but 

I will limit my remarks to the holdings and 

possible implications of KSR, eBay, and 

Seagate. 

In KSR, the Supreme Court reviewed the 

test for obviousness under 35 U.S.C. §103. The 

Supreme Court began by emphasizing that 

its 1966 decision in Graham v. John Deere informed the obviousness inquiry. It went on 

to reject what it perceived to be a rigid approach taken by our court in applying the 

teaching, suggestion and motivation test. 

The Supreme Court observed that ‘‘when it 

first established the requirement of demonstrating a teaching, suggestion, or motivation to combine known elements in order to 

show that the combination is obvious, the 

Court of Customs and Patent Appeals captured a helpful insight.’’ It then noted, however, that helpful insights need not become 

rigid and mandatory formulas, and ‘‘when a 

court transforms a general principle into a 

rigid rule that limits the obviousness inquiry, as the Court of Appeals did here, it 

errs.’’ 


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