Opening Statement

Statement of Ranking Member John Conyers, Jr.
Markup of: “H.R. 9, the “Innovation Act”
Thursday, June 11, 2015 at 10:00 A.M.
2141 Rayburn Building

     I appreciate the chairman’s efforts to address many of the concerns that I have with H.R. 9 in his manager’s amendment.  Unfortunately, the amendment does not go far enough to gain my support for the underlying bill.

     Over the past 18 months, the patent landscape has substantially changed in response to efforts by the courts, at the U.S. Patent and Trademark Office, and by many others to address abusive patent litigation and exploitation of the patent process.  This committee has held three hearings examining these issues.  Other House and Senate committees have also held hearings on this matter. And, just last week, a bipartisan group of Senators on the Senate Judiciary Committee rejected the language in H.R. 9 and passed a more reasonable, yet far from perfect, solution to the issue.  Yet, the manager’s amendment fails to consider the more balanced approaches others have taken.

     First, the amendment did not remove several problematic provisions in the underlying bill. In particular, these provisions include presumptive fee shifting and higher pleading requirements that are one-sided, overly broad, and unnecessary.  Witnesses at our hearings described the many problems associated with those and other provisions and suggested improvements. Yet, the manager’s amendment did not make those needed changes.

     For example, the American Intellectual Property Law Association writes that the amendment does not include improvements to the fee-shifting provision, like language included in the marked up Senate proposal.  The Alliance for U.S. Startups and Inventors for Jobs warns that the manager’s amendment will make the pleading and discovery processes much more complex, expensive, and risky for startups and small businesses to enforce their patents.  The higher education community notes that the amendment’s attempt to limit the overreach of the joinder provision to protect universities is ineffective.  Further, the amendment lacks effective provisions to prevent abuse of patent litigation and the patent process.  It fails to address fee diversion or include helpful language curtailing demand letters. And, it does not effectively deal with gaming of the IPR process that is harming biopharmaceutical companies.

     Finally, unwavering opposition to the manager’s amendment demonstrates that the revised language does not significantly improve the already flawed bill.  Significant members of the patent community have raised concerns or outright opposed the amendment.  They include the higher education community, the American Intellectual Property Law Association, the Medical Device Manufacturers Association, the Alliance of U.S. Startups and Inventors for Jobs, the Innovation Alliance, the Institute of Electrical and Electronics Engineers-USA, the Small Business Technology Council, and many others.

     We need to address the issue of abusive patent litigation. We should be able to find common ground and work together in doing so.  But I cannot support the manager’s amendment without any significant changes.

     Accordingly, I urge my colleagues to oppose the manager’s amendment.