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mrs. feinstein: mr. president? the presiding officer: the senator from california is recognized. mrs. feinstein: thank you, mr. president. i call up amendment number 133. the presiding officer: the senator is advised the senate is currently in a quorum call. mrs. feinstein: i ask unanimous consent that the quorum call be vitiated. the presiding officer: without objection. mrs. feinstein: thank you, mr. president. i'd like to call up amendment number 133 and would ask consent to lay aside the pending amendment. the presiding officer: without objection. the clerk will report. the clerk: the senator from california, mrs. feinstein, for herself and others, proposes an amendment numbered 133. mrs. feinstein: thank you very much. i appreciate that. i ask unanimous consent that at the conclusion of my remarks, my amendment be set aside and that

the senate return to the previously pending business. the presiding officer: without objection. mrs. feinstein: thank you very much, mr. president. i rise today to offer an amendment to strike the first-to-file provisions of this bill. i'm joined in this effort by my cosponsors, senator risch, majority leader reid, and senators crapo and boxer. i also ask unanimous consent that senator ensign be added as a cosponsor of the amendment. the presiding officer: without objection. mrs. feinstein: thank you. i know that the bill has contained these provisions for some time now and i acknowledge that i have voted for different versions of it that contained these provisions, but i've heard more and more in the past two years from small investors -- excuse me, small inventors, start-up companies, small businesses, venture capitalists, and, yes, even large companies from all around our country, but

especially in my state of california, that this proposed transition from our first-to-invent system to a first-to-file system would be severely harmful to innovation. and especially burdensome on small inventors, start-ups and small businesses. and i have become convinced that it's the wrong thing to do. for the benefit of my colleagues who have not been so embroiled in this rather technical issue, let me provide a little background. for over a century, our country has awarded patents to the first inventor to come up with an id idea, even if somebody else beat them to the patent office. a first-to-invent s. and we hav. and we have done very well under the first-to-invent system. this bill would change that so that the first person to file an application to a patent for a particular invention would be

entitled to that patent, even if another person actually created the invention first. and this is what's known as the first-to-file system. now, the argument for first-to-file is made for transitioning -- that's made for transitioning is that the rest of the world follows first-to-file and this will harmonize our system with theirs. this is really supported by big companies who have already made it, who have an international presence. therefore, i understand their support for first-to-file. but under first-to-invent, we have been the world's leader in innovation, and the first-to-file countries have been playing catchup with our technological advances. so with all due respect, i wouldn't trade america's record of innovation for that of virtually any other country or

certainly any first-to-file country. the genius of america is inventions in small garages and labs and great ideas that come from inspiration and perspiration in such settings and then take off. so many of america's leading companies -- hewlett-packard, apple, google, even at&t arising from alexander graham bell's lab, for example, started in such settings and grew spectacularly, creating jobs for millions of americans and lifting up our economy and standard of living. a coalition of affected small business groups, including the national small business association and others, recently said -- and i quote -- "that first-to-file disrupts the unique american start-up ecosystem that has led to

america's standing as the global innovation leader." it's critical, i believe, that we continue to protect and nurture this culture of innovation, and preserving the first-to-i wan-invent system ths helped foster it is essential to do this. moreover, this bill would not actually harmonize our patent priority system with that of the rest of the world. many first-to-file countries allow more extensive use of prior art to defeat a patent application and provide for greater prior user rights than this bill would provide. and europe does not provide even the limited one-year publication grace period that this bill does. an important part of this debate are the changes that the bill makes to the so-called grace period that inventors have under

united states current law. presently, a person's right to their invention is also protected for one year from any of the following. one, describing their invention in a printed publication. two, making a public use of the invention; or, three, offering the invention for sale. this is called the grace period and it's critical to small inventors. 108 start-ups and small businesses wrote last year -- and i quote -- "u.s. patent law has long allowed inventors a one-year grace period so that they can develop, vet and perfect their invention, begin commercialization, advanced sales, seek investors and business partners, and obtain sufficient funds to prosecute the patent application.

during that grace period, many inventors learn about starting a technology-based business for the first time. they must obtain investment capital. they often have to learn from outside patent counsel at considerable expense about patenting and related deadlines and how to set up confidentiality agreements. many start-ups are small businesses -- or small businesses are in a race against insolvency during this early stage. the grace period protects them during this period, and loss of patent rights due to any activities. information leaks or inadvertent unprotected disclosures prior to filing their patent applications. s. 23 eliminates this grace period from offering an invention for sale or making a public use of it, leaving only a grace period from -- quote --

"disclosure" of the invention. there are two problems with th this. first, disclosure is not defined in the bill. this will generate litigation while the courts flesh out that term's meaning. twhiel playmeaning. while this plays out in the core, this will be -- court there, will be many uncertainties about whether inventions patentable or not. this uncertainty will, in turn, chill investment as venture capitalists will be reluctant to invest until they are confident that the invent ler be able to patent -- inventor will be able to patent on their own invention. secondly, because of this lack of definition, some patent lawyers interpret "disclosure" to mean a disclosure that is sufficiently detailed to enable a person of ordinary skill in the particular art to make the

invented item. in practical terms, this means a patent application or a printed publication. now, this does provide some protection to universities, it's true. they often publish about their inventions. however, it is scant protection for the small inventor. they don't publish about their inventions until they file a patent application. as the 108 small businesses put it -- and i quote -- "no business willingly publishes complete technical disclosures that will tip-off all competitors to a company's technological direction. confidentiality is crucial to small companies." the grace period from offering for sale or public use really is critical for their protection.

eliminating it will, in the words of these small businesse businesses -- quote -- "practically gut the american one-year grace period." the national small business association wrote recently -- and i quote -- "the american first-to-invent grace period peant system -- period patent system has been a major mechanism for the dynamism of small business innovation. it is clear that the weak or entirely absent great periods used in the rest of the world's first-to-file patent system throttles small business innovation and job creation." our amendment would provide america's world leading system. i'm also very concerned that first-to-file would proportionately disadvantage small companies and start-ups with limited resources.

i've become convinced that this change would impede innovation and economic growth in our country. particularly harming the small, early-stage businesses that generate job growth. obviously, the process of innovation starts wit with the generation of ideas. small california companies and inventors have described to me, however, how most of these ideas ultimately do not pan out, either testing or development proves that they're not feasible technologically or they prove not to be viable economically. unfortunately, first-to-file incentivizes inventors to race to the patent office to protect as many of their ideas as soon as possible so they're not beaten to the punch by a rival. thus, first-to-file will likely result in significant overfiling

of these dead-end inventions, unnecessarily burdening both the patent and trademark office and inventors. as paul michelle, former chief judge of the court of appeals for the federal circuit, and gregory junemann, president of the international fed ratio -- fedderration of professional and technical engineers, put it in a recent letter to debt -- and i quote -- "as canada recently experienced, a shift to a first-to-file system can stimulate mass filing of premature applications as inventors rush to beat the effective day or the -- of the shift or later filings by competitors." this presents a particular hardship for independent inventors, for start-ups and spore small businesses which do

not -- and for small businesses which do not have the resources and volume to employ in-house counsel but must instead rely on more costly outside counsel to file their patents. this added cost in time directed to filing for ideas that are not productive will drain resources away from the viable ideas that can build a patent portfolio and a business. at a time when the patent and trademark office has a dramatic backlog of over one million patents waiting to be examined and a pendency time of some three years, congress should be careful to ensure that any legislative changes will not increase patent filings that are untruthful. the counterargument is made that a small inventor could file a

cheap provisional patent application, and that's sufficient protection. however, patent lawyers who work with small clients have said that they advise their clients not to treat a provisional application any less seriously than a full patent application. if there is part of an invention that's left out of the provisional application, that application will not be protected, and the parts that are included in the provisional application will also be vulnerable under an attack that the inventor failed to disclose the best mode of the invention, by leaving out necessary information. the argument is made that first to file will establish a simple, clear priority of competing patent applications. proponents of first to file argue that it will eliminate

costly, burdensome proceedings to determine who actually was the first to invent, which are known as interference proceedings. however, the reality is that this is not a significant problem under our current system. there are only about 50 interference proceedings a year to resolve who made the invention first. this is out of 480,000 patent applications that are submitted each year. in other words, .01% of patent applications. another problem with the bill's first to file system is the difficulty of proving that someone copied your invention. the bill's proponents assert that it protects against one person copying another person's invention by allowing the first inventor to prove that, and i quote -- "such other patent was

derived from the inventor of the invention." end quote. currently, you as a first inventor can prove that you were first by presenting evidence that's in your control. your own records, con tem or anneiously documenting the development of your invention, but to prove that somebody else's patent application came from you under the bill was derived from you, you would have to submit documents showing this copying. only if there was a direct relationship between the two parties will the first inventor have such documents. if there was only an indirect relationship or an intermediary intermediary -- for example, the first inventor described his invention at an angel investor presentation where he didn't know the identities of many in

attendance, the documents that would show derivation, which means copying, are not going to be in the first inventor's possession. they would be in the second party's possession. you would have to find out who they talked to, who they emailed with to trace it back to your original disclosure, but the bill doesn't provide for any discovery in these derivation proceedings. so the first inventor can't prove their claim. for these reasons and many others, the first to invent system which i believe has made our nation the leader in the world, which our amendment would preserve, is supported by numerous people and businesses around the country, including the national small business association, the coalition for patent fairness. that's a coalition of large

high-tech companies, the institute of electrical and electronics engineers, which has 395,000 members, the international federation of professional and technical engineers, afl-cio, the university of california system, the university of kentucky, paul michelle, the former chief judge of the united states court of appeals for the federal circuit which plays a critical role in hearing appeals and patent cases, and united states business and industry counsel, american innovators for patent reform, the national association of patent practitioners, professional innovators -- excuse me. professional inventors alliance us us, connect a trade association for small technology and life science businesses, and many small inventors as represented, for instance, in a letter signed by 108 start-ups

and small businesses from all over the country. mr. president, i ask unanimous consent that a copy of this letter be placed in the word directly following my remarks. the presiding officer: without objection. mrs. feinstein: thank you. mr. president, i don't often agree with the organization gun owners of america, a group that thinks the national rifle association is too liberal, but i do agree with them on this issue. they are part of the coalition of 23 conservative organizations that wrote to the leaders about this, arguing, and i quote -- "our competitors should have to harmonize up to our superior intellectual property regime rather than our having to weaken our patent system and harmonize down to their levels." there are many other signatories, but i think this is really a battle between the small inventor, the beginning in

the garage, the apple computer who was nowhere who through the first to invent system was able to create one of the greatest companies in the world. america's great strength is the cutting edge of innovation, and the first to invent system has served us well. you know, if it isn't broke, dent -- don't change it, and i don't really believe it's broke. so i'm delighted to see that my cosponsor, the distinguished senator from california, is also on the floor on this matter, and i welcome her support and i yield the floor. a senator: mr. president? the presiding officer: the senator from utah. mr. hatch: i ask unanimous consent that the distinguished junior senator from california be permitted to make a unanimous consent request and put her statement in the record, and then i would ask that the remaining time be granted to me.

the presiding officer: without objection. the senator from california. mrs. boxer: will the chair cut me off at one minute, please? the presiding officer: the senator from california is recognized. mr. boxer: i want to thank senator hatch and thank my friend and colleague, senator feinstein, for this critical amendment. i want to ask unanimous consent to place my statement in the record and conclude my remarks this way. the feinstein amendment is necessary. it's necessary because the first person to invent a product should get the protection from the patent office, and we believe that if this amendment doesn't pass, it really goes against the express language of the constitution which awards patents to the inventor, not the fastest one to run down to the patent office. senator feinstein has explained why this is a matter of fairness, why it's better for consumers, and i'm very hopeful that her amendment does pass. thank you very much. again, thanks to senator hatch.

the presiding officer: without objection, so ordered. mr. hatch: mr. president? the presiding officer: the senator from utah. mr. hatch: mr. president, i have been following the debate closely on the patent bill and wanted to again voice my support for the passage of this legislation. we have been working on this bill for a number of years, and it is satisfying to finally see the full senate consider it at this time. as i have said before, the patent reform bill is about moving our nation forward towards the future. it will equip america's inventors with an improved patent system that will enable them to better compete in today's global economy. toward that end, i would like to just take a minute or two to discuss some of the key provisions of this bill and what they will do to improve and modernize our patent system. there are some misconceptions about the proposed first to file provision. some have questioned why we cannot maintain the first current to invent system in which the priority is established by determining which

applicant actually invented the claimed invention first. under this system, the current system, if there is a -- and by the way, the rest of the world has a first to file system, but under this system if there is a dispute, it costs the applicants on average an average of of $500,000 in legal fees to prove that they were the first to invent. this amount does not include extra expense that is can follow if the decision is appealed. unfortunately, many small businesses and independent inventors do not have the resources to engage in the process we have now. conversely, moving to a first inventor to file system would provide inventors a cost-effective and certain path to protect one's invention through the filing of a provisional application at a much more reasonable cost of about $100. now, the purpose of the proposed transition is certainly not to hurt small businesses or independent inventors. quite the contrary, these

innovators are too important for our nation's economic health. but let's consider some facts. in the past seven years, more than three million applications have been filed and only 25 patents were granted to small entities that were the second inventor to file but later proved they were the first to invent. of those 25, only one patent was granted to an individual inventor who was the second to file. thus, in the last seven years, only one inventor in over three million patent filings would have gotten a different outcome if we, like the rest of the world, used a first inventor to file patent system. now, i assure you that i do not want to minimize the reluctance that some have with changing to this new system. however, the facts speak for themselves. simply put, moving to a first inventor to file system does not appear to have the level of risk that some have feared.

additionally, the american bar association section of intellectual property law recently confirmed the importance of the proposed transition by stating -- quote -- "for inventions made after 1996, the u.s. patent system has been open to proofs of inventions made outside the united states, creating for many u.s.-based inventors a new and potentially even more expensive obstacle to obtaining a patent under the current first to invent rule. finally, u.s. inventors more and more are facing the need to file patent applications, both at home and abroad, to remain competitive in our global economy. requiring compliance with two fundamentally different systems places undue additional burdens on u.s. inventors and puts them at a competitive disadvantage in this global economy." unquote. indeed, the transition from the first inventor to file system is

long overdue and will help our u.s. companies and inventors outcompete their global challengers. the proposed legislation would also give the uspto rule-making authority to set or adjust its own fees without requiring a statutory change every time an adjustment is needed. providing the uspto the ability to adjust its own fees will give the agency greater flexibility and control, which in the long run will benefit inventors and businesses as well. speaking of greater fiscal flexibility for the uspto, let me take a moment to discuss the importance of ensuring full access to the fees the agency collects. american inventors who create jobs and keep our economic engine running should not have to wait for years after they have been paid their fee -- after they have paid their fees to have their patent applications processed. now, this is a tantamount to a

tax on innovation, and it creates disincentives for inventors and entrepreneurs. a fully funded uspto with fiscal flexibility would at the very least mean more and better trained patent examiners, greater deployment of modern information technologies to address the agency's growing needs and better access to complete libraries of prior art. over the years, fee diversion has forced a vicious cycle of abrupt starts and stops in the hiring, training and retention of qualified office personnel. to make matters worse, under current conditions, outdated computer systems are not keeping pace with the volume of work before the agency. now, it's clear to most that the uspto has yet to recover from the negative enact of diverting close to $1 billion from its

coffers. from its own use. that's not only been wrong, it's obscene. now, i agree with what has been said that there cannot be true patent reform without full access to collected fees by the uspto. now, we owe it to our inventor community to do this. we all have a vested interest in ensuring that our country's unique spirit of ingenuity and innovation continues to thrive and flourish. last night an overwhelming majority of the senate voted to finally put an end to fee diversion from the u.s. p.t.o. it was a historic moment and i hope our house colleagues will maintain this momentum. i understand that people on the appropriations committee didn't like it, some people. they didn't like it because they like to be able to play with that money. but it is really disastrous to not have that money stay with u.s. p.t.o. so that we can move forward faster and better and get a lot more done and still be

the leading innovative nation in the world. well, the legislation also enables patent holders to request a supplemental examination of a patent if new information arises after the initial examination. by establishing this new proce process, the u.s. p.t.o. would be asked to consider, reconsider or correct information believed to be relevant to the patent. the request must be made before litigation commences. therefore, supplemental examination cannot be used to remedy flaws first brought to light in the course of litigation nor does it interfere with the court's ability to address inequitable conduct. that's a really important point. further, this provision does not limit the u.s. p.t.o.'s authority to investigate misconduct or to sanction bad actors. in a nutshell, the supplemental examination provision satisfies

a long-felt need in the patent community to be able to identify whether a patent would be redeemed -- or would be deemed flawed if it ever went to litigation. and enables patentees to take corrective action. now, this process enhances the quality of patents, thereby promoting greater certainty for patentees and the public. the america invents act also creates a mechanism for third parties to submit relevant information during the patent examination process. this provision would provide the u.s. p.t.o. with better information about the technology and claimed invention by leveraging the knowledge of the public. this will also help the agency increase the efficiency of examination and the quality of patents. the pending legislation also provides a new post-grant review

opposition proceeding to enable early challengers -- or challenges to the validity of patents. this new but time-limited post-grant review procedure will help to enhance patent quality and restore confident in the presumption of validity that comes with issued patents. finally, this bipartisan patent bill provides improvements, many improvements to our patent system, which include, among other provisions, just some of the following. changes to the best mode disclosure requirement, increased incentives for government laboratories to commercialize inventions, restrictions on false marking claims, removal of restrictions on the residency of federal circuit judges, clarification of tax strategy patents, providing

assistance to small businesses through a patent ombudsman program, establishing additional u.s. p.t.o. satellite offices, and creation of a transnational post-grant proceeding specific to business method patents. mr. president, as you can see, this bipartisan bill represents significant changes to our patent laws. they will enable our great country to more effectively compete in the 21st century global economy. so i encourage my colleagues to take action and vote in favor of this bill. we cannot afford to allow this opportunity to pass us by. mr. president, i yield the floor. ms. klobuchar: mr. president? the presiding officer: the senator from minnesota. ms. klobuchar: mr. president, i want to thank the senator from utah for his strong statement of support for the america invents act, a bill that is at its heart all about moving our economy

forward. when we think about the brass tacks of our country, we think about ideas, we think bin conventions. it was our inventors who developed the light bulb, the assembly line, the internet, the ipod, and of course my 15-year-old daughter's invention, facebook. and this all came from our great country. i want to just comment briefly and then i think senator rockefeller has an important issue to talk about, about the issue that we've just been discussing up here. first of all, we've heard of from stakeholders from across the spectrum, from high-tech and life sciences, to universities and small inventors in support of the transition to the first-to-file system. at this time, i'd like to place in the record a list of supporters of the transition to the first-to-file system that is contained in the america invents act. the presiding officer: without objection. ms. klobuchar: thank you. we've heard also on the floor that there is, as senator hatch mentioned, strong support

throughout the senate for this change. in fact, commerce secretary locke emphasizes that support in a column appearing in "the hill" newspaper today. he states -- quote -- "patent reform adopts the first-to-invent to file standard as opposed to the current first-to-invent -- first-to-inventory file standard as opposed to the current first-to-invent system. the virs toi first-to-inventor e standard puts people on a level playing field. i couldn't agre agree more. investors and stakeholders across the spectrum support this important transition. and i just want to mention one other thing here about this system. with the current first-to-invent system, mr. president, when two patents are filed around the same time for the same invention, it also creates problems. it means the applicants must go through an arduous and expensive

process called an interference to determine which applicant will be awarded the patent. small inventors rarely, if ever, win interference proceedings because the rules for interferences are often stacked in favor of companies that can spend more money. we believe this needs to change. there was a recent article about this in "the washington post" in which david j. capos, the director of the patent office and under secretary of commerce for intellectual property, described the current system as like parking your car in a metered space, then having someone else come up and say they had priority for that space and then having your car towed. instead, mr. president, we need a system in which if you are the first to pull in and pay your fee, you can park there and no one else can claim its their space. the america invents act would create that system. it transitions our patent system from a first-to-invent system to a first-inventor-to-file system

by simply using the filing date of an application to determine the true inventor, the bill increases the speed of the patent application process while also rewarding novel, cutting-edge innovations. a first-to-file system creates more certainty for inventors looking to see if an idea has already been patented. at the same time, the bill still provides a safe harbor of one year for inventers to go out and market their inventions before having to file for their patent. this grace period is one of the reasons our nation's top research universities, like the university of minnesota, support the bill. the grace period protects professors who discuss their inventions with colleagues or publish them in journals before filing their patent application. mr. president, with that, i know senator rockefeller is here to discuss a very important issue. thank you. mr. rockefeller: mr. president? the presiding officer: the senator from west virginia. mr. rockefeller: i ask unanimous consent to set aside the pending amendment so that i may call up

amendment number 134. mr. hatch: mr. president? the presiding officer: is there objection? the senator from utah. mr. hatch: mr. president, i -- i have to object on behalf of the manager of the bill, who is not here right now. and if you could at least wait until senator grassley returns to make your same motion. mr. rockefeller: i know the senator from utah is -- and i would remind him that he was the lead author of the hatch-waxman act creating the 180-day period for generics. mr. hatch: i object for right now but as soon as senator grassley gets back, he's the manager of the bill. mr. rockefeller: might i ask the senator from utah, would he object if i talked about it? mr. hatch: no. the presiding officer: an objection was heard. the senator from west virginia is recognized. mr. rockefeller: mr. president, my amendment is based on the legislation i introduced earlier this year, obviously quite

recently. the cosponsors of that bill, which was called "the fair prescription drug competition act," were senators shaheen, senator leahy, who chairs the judiciary committee, senator inouye, senator stabenow, and senator schumer, who's on the judiciary committee. i want to acknowledge that the managers of this bill, chairman leahy and chairman grassley, have been steadfast partners in pushing the fair trade commission to investigate further consumer access to generic drugs, which is a huge problem. we do a lot of talking about the health care bill and about a lot of other things about saving money and saving consumers money and this is a bill which would do that if i were allowed to -- to -- to actually proceed to it. so this amendment eliminates one of the most widely abused loopholes that brand-name drug

companies use to extend their shelf life, their monopoly, and limit consumer access to lower-cost generic drugs which are, in fact, just as good, which are, in fact, just the same but they have a nice system to work on that. it ends the marketing of so-called authorized generic drugs during the 180-day marketing exclusivity period that congress did designate to give real low-cost generics a major incentive to enter the market. now, what was happening was that the brand-name drug companies, they had their 18 years of exclusivity, and then the 18 years -- i mean, which, you know, that's -- that's a monopoly time unrivaled. and then somebody else would come in with a cheaper way of doing it but the same f.d.a.-approved drug but it would be a generic drug. so it would be the same drug, have the same effect but it would be much, much cheaper. and since millions and millions

of people buy these drugs, that would seem to be a good thing in a budget-conscious era for american families as well as for the government. the -- so, as i say, it ends -- this amendment ends the so-called authorized generic drugs during the 100-day marketing exclusivity period that congress designated to give real low-cost generics a major incentive to enter the market. you have to be able to enter the market in order to compete and to get your lower-priced, equally good drugs out there. and they do that by challenging a brand-name patent. that's the only way they can do it. an authorized generic drug is a brand-name prescription drug produced by the same brand manufacturer yet repackaged as a generic. now, that's clever. but it's also a little devious.

many brand-name drug manufacturers are repackaging their drugs as generics for the purpose of extending their market shares after their patents expire. so they have a little subsidiary which produces something which they short of shift over to them and, unfortunately, this often eliminates the incentive for an independent generic firm to enter the marketplace and, thus, the price of drugs remains much higher and that would seem to be not in the interest of the american people. in 1984, congress passed the hatch-waxman act to provide consumer access to lower-cost generic drugs, and under the law which the senator from utah led, if a true generic firm successfully challenges a brand-name patent, the generic firm is provided a 180-day period for that drug to exclusively enter the market.

this is crucial incentive for the generic drug companies, in order to enter that market and make prescription drugs more affordable for consumers. i mean, it would seem to me this would be a very laudable pursu pursuit. every american agrees on the need to reduce health care cos costs. generic drugs save consumers an estimated total of $8 billion to $10 billion a year. $8 billion to $10 billion a year savings for the same quality of drug. and they've -- or, of course, they get that at the retail pharmacies where the prescription is handed out. for working families, these savings can make a huge difference, particularly during very tough economic times, which we're going through. so this amendment would restore the main incentive generic drug companies have to challenge a brand-name patent and enter the market. we give them the incentive to go ahead and challenge the brand-name prescriber.

so that's really what this is about. it's profoundly important. it's been before this body many, many times. and i guess it's a question o of -- of do we want to help people who need -- who have to take a lot of prescriptions and older people, any kind of peop people, do we want to help them pay less? and i guess it divides into if you do or if you don't. i'm in the camp of yes i want t have people pay less. i will just say that. i make my comments, and i yield the floor for the time being.

mr. roberts: madam president? the presiding officer: the senator from kansas. mr. roberts: i think i said madam president. i've been thinking of my relationship with the distinguished senator from michigan and our work on the agriculture committee. i apologize. the presiding officer: the senator from kansas is recognized. mr. roberts: mr. president, i ask to speak as if in morning business for approximately 20 minutes. i probably won't use all that. the presiding officer: without objection, the senator is recognized. mr. roberts: thank you, mr. president. mr. president, i rise today to speak again about the president's -- president obama's january 18 executive order. and that order directed agencies, all agencies, all

federal agencies within the administration to review or repeal those significant regulatory actions that are duplicative, overly burdensome or would have a significant economic impact on ordinary americans. the president went on to say -- i'm paraphrasing -- they are costly, they are duplicative. in many cases they are necessary. we need to review them. and in some cases actually they're stupid. that's a direct quote from the president. i'm paraphrasing but he did say the word stupid. probably stupid would be the word or maybe egregious or maybe fed up in almost any group or any organization back home that you would visit with. i know senators in their past break or work period, if you will, probably spoke to a lot of groups. i tell you what happens to me. i walk into a group, any organization, whether it be farmers, ranchers, education, health care, whatever. and they say, pat, what on earth

are you doing back there passing all these regulations, a wave of regulations that do not make common sense and do not fit the yardstick, if you will, of cost and benefit? you know, we can't even wake up any morning without some new regulation popping across the desk. and we don't have the people to do this, and you're about to put us out of business. the first thing i say is i'm not a you guy, i'm an us guy. i brought up the fact that the president recognized these problems. i have to say while i applauded this decision by the president, i note that had there were some loopholes in this executive order. and there are roughly about these, if i could sort of summarize. number one, if you're doing something for the public good. and obviously the secretary of any agency is going to say we're

doing something for the public good. then you're exempt. that's a pretty big loophole to drive the truck through. secondly, if you're an independent agency. let's try the i.r.s. i think more people than most would say, yeah, we have some regulatory problems with the i.r.s. several pho. i won't go into those. then you have this paragraph here that i'm going to read that the agencies can't apply to the decision whether or not they're going to review the regulations they have on the books and regulations coming down the pike. and they can apply this to it. in applying these principles each agency is directed to use the best available techniques -- this is within the executive order -- to quantify anticipated present and future benefits and costs as accurately as possible. but where appropriate and permitted by law, each agency may consider and discuss

qualitatively -- that's the yardstick -- values that are difficult or impossible to quantify. i don't know how do you that. including equity, human dignity, fairness and distributing impacts. that's about as amorphous a language as i can possibly put together. i don't know of any agency that would promulgate all the regulations they are forced to under some congressional act or executive order that they are trying to issue. if they apply this, of course they're exempt. you've got loopholes, again, that you could drive trucks there in regards to the fact that this basically this, executive order, is not going to be adhered to because everybody is going to say we're exempt and we're doing this language here whatever that means. while i applaud the decision by the president, i decided i would

introduce legislation last week to strengthen and codify his executive order. all that means is we codify it. the executive order stands. sorry, no exemptions. what a day that would bring to washington with all the federal agencies saying stop, we're going to take a look at all the regulations that we have out there now and we're going to take a look at all the ones we are promulgating, which are hundreds of them. and i might note there were 44 major regulatory decisions that cost the american business community $27 billion according to one study just last year. and we're finding more and more people coming to washington and have an agenda in regards to these regulations. somewhere, the folks out there that are being impacted seem to be overlooked. i have 30, 32, 35 cosponsors on

this bill. i asked on both sides of the aisle for cosponsors. i think it's a good bill. it would be a brand-new day in washington if every federal agency had to stop and say wait a minute, let's apply a cost-benefit kwrart stick, and the executive order sort of goes into that as to what that would mean. and they have one individual that would be doing all of this and that would be quite a load. if all the federal agencies in washington stopped and stopped their regulatory process there would be a cheer with regard to every business i can think of. as the administration moves forward with its review, i'm going to have several things to say in several areas. one, health care, one regulatory reform. today i want to talk about agriculture and today i want to

talk about the e.p.a. and what's going on with regard to what i think is regulatory overkill for sure. basically, as the administration moves forward with its review, the recommended to the president his add advisors pay attention to the three agencies when determining which of the proposed agencies will place the greatest burden on agriculture. i am privileged to be the ranking member and to serve with the senator from michigan, our cochairman of the committee, debra stabenow. a key component of our nation's economy -- i'm talking about agriculture now and the ability to feed this country in a troubled and hungry world. we're talk about the agency, the commodity's agriculture, all impacting agriculture. since fiscal year 2010, ten new regulations promulgated -- that's a fancy word in washington to say issued the

regulations -- by the e.p.a. have accounted for over $23 billion in new costs to the american taxpayer. that's outrageous. and they're just getting started. the e.p.a. has several new proposals, many of which will have immediate negative impacts on the ability of america's farmers and ranchers to continue to produce enough food to feed our communities, our states, our country and, yes, the world. think of how valuable that is as we look down the road with about 9.3 billion increase in population compared to 6 billion today. we're going to have to double agriculture population. why on earth would we want to be doing anything to the farmer and ranchers whose job it is to do so? i'm going to highlight two proposals the government has brought to my attention. i address the commodity commerce

in kansas. farmers attended and their number one concern was overregulation. they're concerned about the farm bill, they're concerned about lending and debt. but first, in soefrpbl short weeks -- in only seven short weeks the e.p.a. will require farmers who are applying pesticide to kill pests so they can save the crop, to obtain a permit under the clean water act even though that activity is already innovative. they said we don't need two agencies having a different agreement on one regulation. probably don't need that regulation. we have strong regulations under the ffra act that we have right now. farmers and other pesticide applicators would under this regulatory impact, would not be facing these requirements if the administration had chosen to vigorously defend its long-standing policy that

protections -- excuse me, mr. president. had chosen to vigorously defend its long-standing policy that protections under the federal pesticide law were sufficient to protect the environment. that's probably a phone call from some farmer who's listening to this and saying go ahead, give them you know what, pat. unfortunately the administration shows a different path and our estimates suggest this duplicative regulation will require 365,000 individuals to get a clean water act permit. 365,000 individuals, a requirement that will cost $50 million and require one million hours per year to implement and, bottom line, will not add any environmental protection. this layer of red tape will place a huge financial burden on the shoulders of farmer families all across the government as well as state governments

responsible for enforcement while at the same time facing dire budget situations. last month john salazar, former member of the house of representatives and newly appointed colorado commissioner of agriculture, stated in his testimony before the house -- quote -- "it is no secret that states across the country face dire budget situations. many have had to close state parks, cancel transportation projects and cut funding to higher education. it is very difficult, said john salazar from california, to justify diverting even more resources to manage paperwork that is duplicative of other regulatory programs and has no appreciable environmental benefits. however if california's benefits are reflective of the situation in other states, the true cost to states will quickly outstrip e.p.a.'s estimates, more than 365,000 individuals, $50 million

bucks and one million hours a year tpo implement -- to implement. these skpwepbss are not just -- these expenses are not just limited to the cost of compliance. the april 9 effective date is near. there is still significant confusion and uncertainty about what pesticides will fall under these regulations. this means farmers and other pesticide applicators may find themselves subject to massive penalties on top of the fact that they shouldn't be throwing the paperwork out in the first place. if they don't, they could be held responsible for massive penalties for minor paperwork violations to the tune of, get, this, $37,500 per day for violation. they will also be exposeed to litigation under the clean water citizens provisions with the

volitive nature of agriculture markets and increased demand, these sort of risks and resulting cost are something that producers and the hungry mouths who depend on them simply cannot afford. next e.p.a. is undertaking an effort to control particulate matter. this is a favorite of mine. otherwise known as dust. they call it rural fugitive dust. this is a dust off of the old 1970's effort to control rural fugitive dust. i remember that. somebody must have pulled it from the file. this is part of the e.p.a.'s review of the p.m. standard under the clean air act the agency is currently considering the most stringent regulations on farm dust that have ever been proposed. i finally reached back when they first proposed this, the person that was in charge of promoting.

or she was going to promulgate these regulations on repeal fugitive's desk. finally i reached the person in charge, it took me a few days. before i could get a word in i said do you realize -- at that point i was a congressman. she said do you realize, mr. roberts, you have a lot of dust in your country? i said i think i know that. i said that's why each farmer has to have a conservation program if they are going to apply or be applicable to the farm bill. we have a conservation reserve program. we're doing everything we can to control dust, rest assured. nobody likes that. i said what -- what would you have us do to comply with rural fugitive dust? she says well, you know, those grain trucks at harvest, they go down gravel roads and they cause a lot of dust. no kidding. and i said what would you have

us do? well, why don't you send water trucks out at 10:00 in the morning and 2:00 every afternoon to every community in kansas that has those gravel roads where you harvest wheets. i said that would be marvelous. maybe we could get a grant. today that would be a stimulus grant to small communities in regards to rural areas where we're doing the wheat harvest to, number one, buy the trucks, number two, find the water. now, that's just how ridiculous this is with rural fugitive dust. to put it simply, this defies common sense. whether it is cattle kicking up dust in a feed lot in dodge city, kansas, or larnic, kansas, or anywhere in kansas during harvest on a hot afternoon on the high plains in june. dust is a naturally occurring event. standards beyond the current limit would be impossible to meet, particularly in the western portion of the nation where rainfall is often scarce. i don't even know why i'm taking this seriously in regards to

that kind of a regulation. in a bipartisan june letter, 23 members of this body wrote a letter to express these concerns to administrator jackson, and we said this -- "considering the administration's focus on rural america and rural economic development, a proposal such as this would have a negative effect on those very goals. common sense requires the e.p.a. to acknowledge that wind blows and so does dust." now, as we think about e.p.a.'s access impacting agriculture, it is critical to recognize that no one cares more about maintaining a clean environment than the american farmer and rancher. our producers across the country manage their operations responsibly because of their desire to keep farming and to one day pass along that ranch or field to their sons or daughters or grandchildren if they can. they know firsthand the clean air and water and healthy soil

go hand in hand with a healthy economy. our producers deserve respect and appreciation from e.p.a., not costly and redundant and unnecessary and, yes, even ridiculous regulation. let's shift departments now. the department of agriculture's grain inspection packers and stockyards administration, that's tough. that's called gipsa, by the way. agriculture gain inspection packers and stockyards administration, released a proposed recall that would dramatically increase the red tape covering the business relationship surrounding the production and marketing of livestock in the united states. the rule was initially proposed last summer, without, without, mr. president, the benefit of a meaningful cost-benefit analysis, something we have been trying to get in my legislation, something the executive order should have done. however, the proposal has since received significant criticism from ranchers industry, members

of congress alike now being further evaluated by usda officials. as written, the proposal would dramatically reduce the consumer's choice, it would increase costs. the proposal exposers packers to liability for use of alternative marketing arrangements and other innovative procurement methods, thereby ultimately depressing the prices received for america's most efficient and successful producers while potentially reducing the quality available to consumers. further, this proposed rule would actually increase the concentration in the sector as businesses are forced to change their current organizational structure, and you would find an exacerbation of the very issue the rule is allegedly designed to address. now, for instance, in kansas, we have a highly successful rancher-owned company made up of individual producers. they own both cattle and shares in the company's processing

infrastructure. under this proposal, many of the individuals of the company may now be prohibited, prohibited from selling cattle directly to other processors. creating the need for a middleman that would then lower the price the producer would actually receive. if implemented, this so-called gipsa rule poses a substantial threat to the continued viability of the domestic livestock sector. now, in kansas, this industry contributes over $9.5 billion, over $9.5 billion, $9.5 billion to our economy just? kansas. with an economic footprint of this magnitude, the gipsa regulation is a burden that kansas and many other rural states, many other livestock producers simply can't afford. let me talk about another agency falling through the president's executive order loophole, and that's the commodity futures trading commission. as a result of the dodd-frank act, the regulatory reform act in the financial world, the cftc

is charged with developing dozens, dozens of new regulations impacting participants up and down what's called the swaps and futures chain. now, shouldn't these regulations be held to the same standard of cost-effectiveness and undue burden as others? well, yes, but no, i talked to chairman gansler in my office a couple of days ago. a very nice man, very pleasant. he believes very strongly that the cftc is exempt from the president's executive order because congress said it was exempt. i indicated i didn't think so, especially since the cftc is currently pushing 40-plus rules out the door one year with little or no priority. we were told the intent of dodd-frank was to reduce systemic risk in the financial marketplace. however, several of cftc's proposals appear to increase

risk management costs on those who do not pose a systemic threat. now, the cftc must be mindful that increased costs through high margin and capital requirements on certain segments of the marketplace may decrease a user's ability to use appropriate risk-management tools. a rigorous cost-benefit analysis tailor made, tailor made for the cftc's current situation, dozens of economically significant rules, the potential to negatively impact risk-management costs of american businesses and a simple question needing to be answered: do the benefits of this proposed regulation -- and we're talking about anywhere from 40-60 now -- in the form of lower systemic risk in our financial system outweigh the increased costs on businesses? let me just say something in talking with chairman gansler. again, i -- i really appreciate him coming by the office and

talking. it became obvious to me that with all these regulations, maybe the first one ought to be a definition regulation, what is a swap? who is a dealer? it hasn't been done yet, so we're going to propose 40 or 39 more regulations and we haven't even defined who the regulations will affect and what is the subject matter that they're going to regulate. that's really unbelievable. we're going to have a hearing tomorrow in the senate agriculture committee. mr. gansler, chairman gansler will attend and give his testimony. we're going to be very welcoming him in regards to the committee, but that's something i'm going to ask, why on earth are you going ahead with 40 regulations and you can't even define who you're going to regulate and what you're going to regulate? no definition. that to me is -- that to me is pretty bad. you have the cart before the horse there. mr. president, in closing, i

want to make two points. first, in many rural areas of kansas and the rest of the country, agriculture is the cornerstone of the economy. second, in the coming decades, we will be even more reliant on america's farmers and ranchers to feed an ever-growing world population. i said that before. we must truly commit to a real and robust -- here's a good senate word -- robust review and revocation of any and all unduly burdensome regulations that could inhibit american agriculture's ability to produce the safest, most abundant and affordable food, feed and fiber supply in the world. we're talking about 9.3 billion people. we're talking about the ability for our agriculture -- everybody in agriculture to double our production, all the farmers and ranchers. why on earth would we want this whole business of regulatory impact, most of which is highly questionable, none of which fits the president's executive order to take a look at a cost

benefit? why on earth would we do this to the very person whose job it is to feed this country in a troubled world and -- and hungry world? look at the middle east, in turmoil. remember that one -- that one interview on tv where somebody stuck a microphone and asked one of the -- of the protesters in libya what are you protesting for? democracy? he said no, loaf of bread. where people are hungry and malnourished, you have no economic opportunity and you have people who are hungry and they will go and join extremist groups and even go over into terrorism groups. i have the privilege of being the chairman of the intelligence committee here in the senate, and that was the -- one of the big considerations we had in whole areas of the world where people do not have the ability to feed themselves and they are in a food-deficient area, and it really poses problems for the

future of that part of the world. here yet you ask our farmers and ranchers to double our ag production in a couple of decades, i don't know how we're going to do this with this regulatory nightmare. let's hope we wake up soon, and i would hope everybody would take a good look at my bill to codify the president's order -- give him credit for doing that -- but not with all these loopholes which are going to drive us nuts out there in rural small town america. i yield back, mr. president. thank you. i. ♪ the absence of a quorum. the presiding officer: the call of the senate. quorum call:

quorum call:

the presiding officer: the senator from wyoming is recognized. mr. barrasso: i come to ask to speak as if in morning business. the presiding officer: without objection, the senator's recognized. mr. barrasso: i come to the floor today as someone who practiced medicine in wyoming, taken care of families there for a quarter century, working with people all across our great state. as a physician who worked in our state senate, and both in my practice and service in the state senate, i dealt with the issue of medicaid, a program setup to help low-income

americans obtain health care. i come today with a doctor's second opinion about recent developments and findings with regard to the health care law. day after day, mr. president, we see news reports showing states all across the country facing extreme financial budget pressures, even bankruptcy. and one of the key factors, exacerbating state fiscal troubles is the medicaid program. well, mr. president, over the next 10 years, washington will spend about $4.4 trillion on medicaid. and at the state level, medicaid spending now consumes roughly one-quarter of the budget of each of the states. now, increasing medicaid costs often forces governors and state legislators to make drastic cuts to local priorities, such as education, law enforcement, public safety. and, as i mentioned, i did serve in the wyoming state legislature, five years in the

wyoming state senate. was there last week to address the legislature, the senate, and the house in wyoming, to talk to them, listen to them about their concerns in the state of wyoming we're required on an annual basis to balance our budget. we do it every year. so i know that first -- i know from a firsthand experience that tough choices need to be made. and that is why i can tell you that this current health care law, president obama's health care law, is not going to make it any easier for our states to close the budget gaps that's they're facing. and, as a matter of fact, mr. president, it is going to make the situation worse. the president's health care law created the biggest medicaid expansion in history. the law says that every state must provide medicaid for every one of their citizens who earns up to 133% of the federal poverty level. this doesn't work for the states and it doesn't work for the people who will be forced on to

medicaid. the health care law does not provide the additional resources to states that are already strapped for cash in order to try to deal with paying for this incredible expansion of medicaid. and it certainly doesn't give states the additional financial help so that they can pay health care providers enough to participate in medicaid. because, you know, mr. president, about 40% of physicians across the country refuse to see medicaid patients. my partners and i took care of everyone in wyoming who would call or come to our office regardless of ability to pay, but cries country, about 40 -- but across the country, about 40% of physicians refuse to see medicaid patients. so i said over and over throughout this health care reform debate over the last year or so that having a health care government insurance card doesn't mean someone will automatically have access to medical care. the president frequently talks about making sure people have

coverage, but that doesn't necessarily mean they will have access to care. i want to be very clear, mr. president, the states, especially my home state of wyoming, do an incredible job of running the medicaid program. they do it with limited resources. a weak economy, combined with a high unemployment rate, drove medicaid enrollment to record levels. so it isn't a spry that medicaid is consuming greater and greater portions of state budgets, cutting into money to be used to pay for teachers, police and firefighters, former governor bill brenan of tennessee, called it best when he called the medicaid expansion the mother of all unfunded mandates. the governor went on to say -- quote -- "medicaid is a poor vehicle for expanding coverage." let me eat repeat, that -- let me repeat that, medicaid, which the president has used as the

approach to expand coverage, the democratic governor says that medicaid is a poor vehicle for expanding coverage. he went on to say it's a 45-year-old system originally designed to take care of poor women and their children. it is not designed to dump more money into medicaid. the former governor of tennessee isn't alone. on november 9, 2010, governor brysner, also a democrat, met with his state's health leaders to talk about medicaid and the challenges they're facing. what he said was -- quote -- "as the manager of montana's budget, i am worried because there are only three states that will increase the number of people on medicaid at a faster rate than montana thanks to the new health care bill." he said my job is to find ways to go forward that montana can continue to fund medicaid and not be like 48 other states. and then he said broke. so in january 33 governors and

governors-elect, sent a letter to the president and governor leadership. what did they say? the letter asks federal lawmakers to lift the constraints placed on them by the health care laws' mandates. the governors are begging congress for help. they each have very unique medicaid programs across the country, the different states. they want they ask, they need the flexibility to manage their programs, their individual programs as effectively and efficiently as possible. well, they all need to make tough but necessary budget decisions. and they can't do it when washington bureaucrats in the enduring wisdom of those in washington won't allow it. if you want to add insult to injury, this week the president claimed, as he was addressing governors at the national

governogovernor association, cld that the health care law offers states health care flexibility to create their own health care plans. this was addressed to the national governor's association, the president made an announcement. he announced -- quote -- "if your state can create a plan that covers as many people as affordably and comprehensiblably as the affordable care act does without increasing the deaf the sit, he said you can implement that plan." that's quite a tall and almost impossible order, mr. president. american people and certainly the governors who were listening to him in the awdens on monday saw right through -- audience on monday saw right through the stunt. it is to create health care plans that imitate his health care law rather than actually offering states true freedom to innovate better solutions and there are better solutions out there, mr. president, than what this body and the house of representatives passed and the president signed into law almost a year ago.

it seems to me the president wants to have his cake and eat it too. he tells the states that they already have the ability to craft different health care -- a different health care plan, but, of course, there is a catch. what the president doesn't say -- what he wouldn't tell the governors is that states can only design different health care plans if -- if and only if they meet the health care laws litany of washington mandates. states still must pass legislation mandating all of its citizens buy health insurance. states must still provide washington-approved insurance coverage. washington levels, washington approved. limiting use of innovative health care products like health savings accounts. oh, no, that's not allowed by the president. states are still locked into the laws, medicaid expansion spending requirements. so, mr. president, during these tough economic times, the states

need certainty, they need consistency, not more washington double speak. last month i introduced, along with senator lindsey graham, a bill giving the states exactly what they need, flexibility, freedom, and choice. the bill is called the state health care choice act. and this legislation is simple. it is straightforward. and it protects states' rights by allowing them to voluntarily opt-out of portions of the health care law. specifically our bill offers states the chance to opt-out of the law's individual mandate. to opt-out of the law's employer mandate penalties. to opt-out of the medicaid expansion and to opt-out of the insurance benefits mandates. why should the federal government -- why should washington force the states to adopt a 1-size-fits-all health care plan. states can decide what works

best for them. need to be able to act on those decisions. they don't need washington to tell them what to do. well, some of the most inknow the associative health care polls -- health care policy ideas are at the state level, state insurance commissioners, they each have greater insight into what works for their citizens and what does not. states are feeling trapped by the new health care law's mandates. my bill, the one along with lindsey graham, gives the states the sovereignty to pursue their own reform ideas and approaches. each state deserves the right -- let me repeat that -- each state deserves the right to pursue health care reforms that they think actually help the citizens of their state. the states have always been the laboratories of democracy. the laboratory to test -- to test good ideas. unfortunately this health care law locks them into a

one-size-fits-all approach. the states want their freedom. the states deserve their freedom. our bill gives it to them offering the flexibility needed to generate better health care reform solutions. solutions that do not require the states to follow a washington plan that may ultimately leave them broke. in writing the state health care choice act i started with the assumption that people generally can be trusted to do the right thing and society prospers when government has less to say about how people run their lives. others, many in this body, start by assuming that washington knows best, and should take more authority over everyone else. well, mr. president, the states, the american people, are telling us that they want health care reform, but they are telling us loud and clear that they do not want this health care law. so it is time to give the states the autonomy to create health care systems that work best for

them and we do not have to dismantle the nation's current health care system, build it up in the image of big government, shift costs to the states, add billions to our national debt, and then try to sell it as reform. there are better ideas and i have put forward mine. i ask all senators to join me in cosponsoring the state health care choice act. and, with that, mr. president, i yield the floor. a senator: mr. president? the presiding officer: the senator from maryland. mr. cardin: thank you, mr. president. i ask unanimous consent to speak as if in morning business. the presiding officer: without objection. mr. cardin: mr. president, we have all watched in awe during the past weeks as the unquenchable desire for liberty and human dignity have inspired people of the middle east to lift themselves up from oppression and move their country toward a new dawn. sadly we now also watch in who areo, brew cattley of colonel qaddafi who murders his own people as he clings to power.

i join president obama in calling colonel qaddafi to leave libya immediately and support our efforts in concert with the international community to help the libyan people. what happens next, mr. president? no one really knows. i certainly do not have the answer. i pray that peace and stability come quickly to libya and hope the people of egypt and ta have quick -- while each country must find its own path in this journey, i would suggest that the international community currently has a process in place that could serve as a way forward for the countries in the middle east and north africa in establishing a more democratic process that guarantees free elections and free speech. i'm referring to the organization of security and cooperation in europe. it traces its ago toin the signing of -- origins to the signing of the helsinki accord.

it has helped to bridge eastern and western europe by securing military security for member countries and the rights of its sit glefnls mr. president, there are three baskets in osce, one basket deals with human rights, because it is critically important that the countries respect the rights of its citizens. another basket deals with security, you cannot have human rights unless you have a secured country that protects the security of its people. the third basket deals with economic and environment. because you cannot have a secured country and you cannot have human rights unless there's an economic opportunity for your citizens and respect the environment in which you live in. the three baskets are brought together. in the united states the congress passed the u.s. helsinki commission that monitors and encourages compliance in the member states. i'm privileged to serve as the senate chairman of the u.s.-

helsinki commission and i represent our commission on these issues. the -- today egypt along with jordan and morocco are partners in the osce and work toward the commitment toward the principles of the organization. in 1975 the helsinki final act recognized the europe as closely linked with the security in the mediterranean and created this special partnership between the signatory states and the countries in the mediterranean as a way to improve relations and work toward peace in the region. libya libya was an integral part in this endeavor, but regrettably ultimately turned its back on the organization. more recently, the u.s.-helsinki commission has made the

mediterranean partnership a priority on our agenda. the parliamentary assembly meetings which take place in which all of the member states are present, including our partners, we have had sidebar events to encourage the strengthening of the relationship between our mediterranean partners for more cooperation, to deal with human rights issues, to deal with free and fair elections, to deal with their economic and environmental needs, including trade among the mediterranean partners, and, yes, to deal with the security issues to make sure that the countries and the people that live there are safe. a helsinki-like process for the middle east could provide a pathway for establishing of human rights, peace and stability in egypt, tunisia and other countries in the middle east. as a member of the u.s. helsinki commission since 1993, i have discussed the possibility of a helsinki-like process for the region with middle eastern leaders, a process that could result in a more open democratic society with a free press and

fair elections. the helsinki process now embodied in the organization for security and cooperation in europe bases relations between countries on the core principles of security, cooperation and respect for human rights. these principles are implemented by procedures that establish equality among all the member states through a consensus-based decision-making process, open dialogue, regular review of commitments and engagement with civil society. we have seen the helsinki process work before, and the region has gone through generations without personal freedom or human rights. countries that have been repressed under the totalitarian regime are now global leaders of democracy, human rights and freedom. one need only look as far as the thriving baltic countries to see what the eoce can help countries become leaders in their regions. lithuania now chairs both the

osce and the community of democracies. estonia has joined the unified european common currency. latvia has shown its commitment to shared values as a strong new member of the nato alliance. enshrined among the helsinki accords, ten guiding principles is a commitment to respect human rights and fundamental freedoms, including freedom of speech and peaceful assembly. the helsinki process is committed to the full participation of civil society. these aspects of the helsinki process, political dialogue and public participation, are critical in the middle east, and we are watching these principles in action today, in egypt and tunisia. the principles contained in the helsinki accords have proven their worth over three decades. these principles take on increasing importance as the people of the middle east demand accountability from their leaders. whether countries of the region choose to create their own conference for security and

cooperation or as some have suggested the current osce partners and their neighbors seek full membership in the osce, i believe such an endeavor would offer a path for governments in the region to respect human rights, establish free press and institute fair elections. finally, as the citizens of both tunisia and egypt demand more freedom, i urge both countries to permit domestic and international observers to participate in any electoral process. the osce in its parliamentary assembly have extensive experience in assessing and monitoring elections that could serve as an impartial observer as both countries work to meet the demands of openness and freedom of their citizens. i might tell you that the election monitoring that takes place within the osce states is a common occurrence. during our midterm elections, there were osce observers here in the united states, so they

are present at most of the osce states because we find this a helpful way to make sure that we are doing everything we can to have an open and fair election system. free and fair elections are critical, but they must be built upon the strengthening of democratic institutions and the rule of law. i believe that the principles contained in the helsinki accords have a proven track record and could help guide this process. with that, mr. president, i would yield the floor. mr. kyl: mr. president? the presiding officer: the senator from arizona. mr. kyl: thank you, mr. president. i want to get back to the underlying patent legislation that we're degetteing and especially to talk on -- that we're debating and especially to talk on a particular amendment. we're talking, of course, about the america invents act, legislation that would modernize our patent laws, legislation which i believe will have very strong support in this body as

soon as we're able to bring our debate to a close and have a vote on it. but there is one amendment that would be very troublesome if adopted, and i want to speak to it today. it's offered by my good friend from california, senator feinstein, but it would strike the bill's first to file provisions. this would not be a good idea. in fact, it would be a very bad idea, and i'd like to describe why. first of all, this first to file, which is just a concept that the filing date of the patent dates to the time that you file it. it's not new. the question is whether we would codify that. it's been the subject of beebt now for about 20 years, but at this point it's been thoroughly explored by hearings before both the house and senate judiciary committees. we considered this at the outset of the drafting of our patent reform legislation. it's been in every version of the bill that has been introduced since 2005. and importantly, this provision that we have in the bill that would be taken out by the

proposed amendment is supported by all three of the major patent law organizations that represent all of the industries across the board. it's got the support of the american bar association's intellectual property law section. it's supported by the intellectual property owners, which is a trade group or association of companies which own patents and cuts across all industrial sectors, and very importantly, our language also has the support of independent inventors, many of whom have signed letters to the senate in support of the codification of the first to file rule embedded in the leahy bill. the bottom line, mr. president, is there is a strong consensus to finally codify what's in practice everywhere else in the world, and namely that patents are dated by when they were filed, which obviously makes sense. let me respond to just a couple of the arguments that have been raised in favor of -- of the

feinstein amendment. one argument is that the current first to invent system is better for the little guy, the small independent inventor. it turns out that is actually not only not true but the opposite is the case. under the first to invent system, if a big company tries to claim the same innovation that a small innovator made, then that innovator would prevail if he can prove that he actually invented first even if he filed last, but to prove that he invented first, the independent inventor would need to prevail in what's called an interference proceeding. now, these interference proceedings before the patent and trade office involve a determination by p.t.o. of who actually invented first, and the p.t.o. looks at all of the party's notebooks and other documents to determine issues such as conception of the idea and reduction to practice, the elements of a workable patent.

yesterday i quoted from commentary that was published on sunday, february 27 -- in other words, very recently -- by mr. gene quinn who is a patent lawyer, writes for the i.p. watchdog website, and i quoted his commentary noting that only one independent inventor has actually prevailed in an interference proceeding in the last seven years. in other words, if the idea here is that we need to preserve something that is used by small inventors, by independent inventors, it just isn't the case that the first to invent actually does that. in his column, mr. quinn does a very good job of explaining why the interference proceeding is largely an illusory remedy for small and independent inventors. i will quote from what he said." the independent inventors and small entities, those typically viewed as benefiting from the current first to invent system, realisticcally could never benefit from such a system. to prevail as the first to

invent and second to file, you must prevail in an interference proceeding, and according to 2005 data from the aipla, the average cost through an interference is over $600,000. so let's not kid ourselves. the first to invent system cannot be used by independent inventors in any real logical or intellectually honest way as supported by the reality of the numbers above. first to invent is largely a feel good approach to patents where the underdog at least has a chance if they happen to have have $600,000 in disposable income to invest on the crap shoot that is an interference proceeding." end of quote. obviously, the parties that are likely to take advantage of a system that costs more than half a million dollars to utilize are not likely to be small and independent inventors. indeed, it is typically major corporations that invoke and prevail in interference proceedings. the very cost of the proceeding

alone effectively ensures that it is these larger parties that can benefit from this system. in many cases, small inventors such as start-ups and universities simply cannot afford to participate in an interference, and they surrender their rights once a well-funded party starts such a proceeding. so i think that first argument is unassailable. with only one small inventor in the last seven years having prevailed in such a proceeding, it doesn't seem that it's something that favors the small or independent inventor. mr. quinn's article also responded to critics who allege that the present bill eliminates the grace period for patent applications. the grace period is the one-year period prior to filing when the inventor may disclose his invention without giving up his right to patent. mr. quinn quotes the very language of the bill and draws the obvious conclusion, and let me quote from what he said: "regardless of the disinformation that is widespread, the currently

proposed s. 23 does, in fact, have a grace period. the grace period would be quite different than what we have now and would not extend to all third-party activities, but many of the horror stories say if someone learns of your invention from you and beats you to the patent office, they'll get the patent. that is simply flat wrong." he, of course, is referring to the bill's proposed section 102-b. under paragraph 1-a of that section, disclosures made by the inventor or someone who got the information from the inventor less than a year after the application is filed do not count as prior art. under paragraph 1-b, during the one-year period before the application is filed, if the inventor publicly discloses his invention, no subsequently disclosed prior art, regardless of whether it's derived from the inventor, can count as prior art and validate the patent. this effectively creates a first to publish rule that protects those inventors who choose to disclose their invention. an inventor who publishes his

invention or discloses it at a trade show or an academic conference, for example, or otherwise makes it publicly available has an absolute right to priority if he files an application within one year of his disclosure. no application effectively filed after his disclosure and no prior art disclosed after his disclosure can defeat his application for the patent. these rules are highly protective of inventors, especially those who share their inventions with the interested public but still file a patent application within a year. these rules are also clear, objective and transparent. mr. president, that's what we're trying to achieve with this legislation so there is uniformity, there is clarity, they are much easier to defend what they have done. in effect, the rules under the legislation create unambiguous guidelines for inventors, and a return to the proposal of

senator feinstein would obviously create the ambiguity that we're trying to get away from. bottom line is an inventor who wishes to keep his invention secret must file an application promptly before another person discloses the invention to the public or files a patent for it, and an inventor can also share his invention with others. if his activities make the invention publicly available, he has to file an application within a year, but his disclosure also prevents any subsequently disclosed prior art from taking away his right to the patent. the bill's proposed section 102 also creates clear guidelines for those who practice in a technology. to figure out if a patent is valid against prior art, for example, all a manufacturer needs to do is look at the patent's filing date, figure out whether the inventor publicly disclosed the invention. if prior art is disclosed the invention to the public before the filing date or if the inventor disclosed the invention within a year of filing but the

prior art predates that disclosure, then it is valid. if not, the patent is valid against a prior art challenge. now, some critics of the first to file system also argue that it will be expensive for inventors because they will be forced to rush to file a completed application rather than being able to rely on their invention date and take their time to complete an application. but these critics ignore the possibility of filing a provisional application which requires only a written description of the invention and how to make it. once a provisional application is filed, the inventor has a year to file the completed application, and a provisional application only costs $220 for a largentity, only $110 for a small entity. so this is easily accomplished and quite affordable. in fact, one of mr. quinn's earlier columns on november 7, 2009, effectively rebuts the notion that relying on invention dates offers inventors any substantial advantage over

simply filing a provisional application. here's what he says -- quote -- "if you rely on first to invent and you are operating at all responsibly, you're keeping an invention notebook that will meet evidentiary burdens, if and when it's necessary to demonstrate conception prior to the consumption of the party who was first to file. your intention notebook or invention -- invention notebook or invention record will detail, describe, identify and date conception on so that others skilled in the art will be able to look at the notebook record and understand what you did, what you knew and come to believe that you did, in fact, appreciate what you had. if you have this, you have provable conception. if you have provable and identifiable conception, you also have a disclosure that informs and supports the invention. and if the notebook provablely demonstrates conception, then it can be filed as a provisional patent application." in other words, what you would ordinarily have in any event can be used as the provisional application.

in other words, the showing that an inventor must make in a provisional application is effectively the same showing that he would have to make to prove his invention date under the first-to-invent s. a small inventor operating under first-to-invent rules already must keep independent validated notebooks that show when you conceived of his invention. under first-to-file riewrnlingse only additional steps that the same inventor must take are writing down the same things that his notebooks are supposed to prove, filing that writing with the patent office and paying a $110 fee. once the possibility of filing a provisional application is considered, along with the bill's enhanced grace period, it should be clear that the first-to-file system will not be at all onerous for small inventors. and once one considers the bill's clean, clear rules for prior art and priority dates, its elimination of subjective elements in patent law, its new proceeding to correct patents, and its elimination of current patent forfeiture pitfalls that

trap legally unwary inventors, it is clear that this bill will benefit inventors, both large and small. so, mr. president, because this issue has been considered from the inception of the debate about the legislation and all of the -- in all of the testimony and markups, in every version of the bill since 2005, is supported by all the industry groups that believe that patent reform is necessary, conforms to the rules of all other countries in the world and provides clear and easily demonstrable evidence of your patent, we believe that the first-to-file rule is the best rule, dated from the date you filed your patent, rather than this rather confusing notion of the first-to-invent, which has not worked especially well and certainly has not worked well for the small inventor, which is the -- the point, i gather, of the amendment proposed by senator feinstein. i would just urge my colleagues, if there are questions or confusions about this, those of us who have been involved in this would be happy to try to answer them, be happy to be on

the floor to discuss it further. but at some touch as we have a -- such time as we have a vote on this, i would hope that my colleagues would go along with what the committee did and what all of the versions of the bill have written in the past and support the bill as written and not approve this amendment. ms. klobuchar: mr. president? the presiding officer: the senator from minnesota. ms. klobuchar: i just want to thank the senator from arizona for his very strong comments and also for his support for this important bill. as you know, this has come through the judiciary committee. senator kyl's a member of that committee, as i am as well, and we appreciate senator leahy's leadership on this bill as well as all the other senators have that have worked so hard on a difficult bill where there are so many interests. but in the end, what guided us to get through, to get this america invents act on this floor, was the fact that innovation is so important to our economy, that the protection of ideas in america is what built our economy over the years. so i -- i want to thank senator kyl. and before we hear from senator

bingaman, who's here on another matter, i just wanted to support senator kyl's statements about the need to transition to the first-inventor-to-file system. as i noted before, we have heard from many small inventors and entrepreneurs who support this transition. independent inventor lewis foreman has said the first-to-file system will strengthen the current system for entrepreneurs and small businesses. we have heard from nearly 50 small inventors in more than 20 states who share mr. foreman's view. i ask that a list of these supporters as well as mr. foreman's letter to the judiciary committee in support of the america invents act be included in the record. the presiding officer: without objection. ms. klobuchar: thank you very much, mr. president. and i now -- now senator bingaman is here to speak. mr. bingaman: mr. president? the presiding officer: the senator from new mexico. mr. bingaman: mr. president, i appreciate the chance to speak

as if in morning business. mr. president, i wanted to take a few minutes to discuss the increasing oil prices that we are observing each day and the evolving situation in the middle east and in north africa. from an oil market perspective, the turmoil in the middle east changed course just over a week ago and it changed course when libya joined the group of countries that are witnessing historic popular uprisings. libya is the first major energy exporter in the region to experience such an uprising. at the moment, as much as a million barrels per day of libya's total 1.8 million barrels per day of oil production is currently off-line. if continued political turbulence -- with continued

political turbulence threatening to take even more oil off-line before order is restored. it appears that international oil companies, which are responsible for over 40% of libyan oil production, have removed their personnel from the country and that has led to shutdowns of most fields operated by those international companies. for the moment, it appears that the libyan national oil compan companies themselves are mostly continuing to produce and export oil, although there might be some limited production losses in national oil company production as well. there's reason to be concerned that the situation in libya and throughout the region could become worse before it improves, and i don't know that it's useful to try to predict the most likely outcome for what's occurring in the country but the reality is that many of the potential scenarios that have been thought of are not good for

the stability of world oil flows. fortunately, saudi arabia is widely believed to have enough spare oil production capacity to offset any losses in libyan oil production. the saudis have already publicly committed to compensating for any libyan shortfall and very likely have already ramped up production to make good on that promise. however, the additional saudi crude oil will not be of the same quality as the lost libyan barrels of oil, which are light sweet crude. about three-quarters of libyan exports go to western europe and the refineries in western europe generally cannot manage the heavier and sour crudes that come out of the persian gulf region. there will be some crude oil dislocation as higher-quality crudes are rerouted to europe

and incremental saudi barrels of oil head for refineries that are able to handle the lower-grade oil that they produce. between the lost production in libya and the crude oil dislocation associated with additional saudi production and the prospect of further turmoil in the region, we are now unquestionably facing a physical oil supply disruption that is at risk of getting worse before it gets better. for this reason, i believe it would be appropriate for the president to be ready to consider a release of oil from our strategic petroleum reserve if the situation in libya deteriorates further. any additional oil market disturbance, such as turmoil spreading from libya to algeria or from bahrain to saudi arabia, would clearly put us into a situation where there would be a

very strong argument in favor of a sale from the strategic petroleum reserve. while i don't think that high oil prices alone are sufficient justification for tapping the strategic petroleum reserve, i do believe that the announcement of a strategic petroleum reserve sale would help to moderate escalating prices. my recommendation that we stand ready to release oil from the spro is squarely in the traditional policy that we have had in our government for spro use going back to the reagan administration in the 1980's. testimony before the committee on energy and natural resources in january -- on january 30, 1984, president reagan's secretary of energy, donald hodell, stated that the administration's spro policy in the event of an oil supply

disruption was to -- quote -- "go for an early and immediate drawdown." the spro would be used to send a signal, a strong signal to oil markets that the u.s. would not allow a physical oil shortage to develop. the spro policy carried out during the 1990's -- the 1990-1991 desert storm operation offers an amendment o -- an exas early and in large volumes policy in action. on january 16 of 1991, president george h.w. bush announced that the allied military attack against iraq had begun and simultaneously he announced that the united states would begin releasing spro stocks as part of an international effort to minimize world oil market disruptions. less than 12 hours after president bush's authorization,

the department of energy released a spro crude oil sales notice, and on january 28 of 1991, 26 companies submitted offers. then-secretary of energy watkins noted -- quote -- "we have sent an important message to the american people that the $20 billion investment they've made in an emergency supply of crude oil has produced a system that can respond rapidly and effectively to the threat of an energy disruption." according to the analysis posted on the department of energy's web site during the george w. bush administration -- quote -- "the rapid decision to release crude oil from government-controlled stocks in the united states and other oecd countries helped calm the global oil market and prices began to moderate. world oil markets remained remarkably calm throughout most

of the war due largely to the swift release of the strategic petroleum reserve oil. in recent years, the policy signals surrounding spro use have not been as clear. some spro sales were criticized as efforts to manipulate oil prices. the spro was then ignored during other oil supply disruptions, including simultaneous oil supply disruptions due to a strike in venezuela, political turmoil in nigeria, and the initiation of the current war in iraq. i believe the reagan administration set the correct course for spro decision making. the current administration would be well served in considering that example and should be ready, in my view, to make a decision to calm world oil markets should the threat to world oil supplies increase in the coming days and weeks.

mr. president, i yield the floor, suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

a senator: mr. president? the presiding officer: the senator from iowa. mr. grassley: i ask that the calling of the quorum be suspended. the presiding officer: without objection. mr. grassley: i ask permission of the senate to address the senate as if in morning business. the presiding officer: without objection. mr. grassley: earlier today the finance committee held a hearing to discuss a serious problem of fraud in medicaid and medicare. over the last nine years the finance committee has held more than 20 hearings dealing with medicare and medicaid fraud. these hearings highlighted the flaws in how the federal government administers medicare and medicaid. they aalso stress the need to create disincentives for those who seek to defraud these vital programs. every dollar lost to medicare or medicaid fraud is a dollar that's not available for beneficiaries and, of course, we ought to be very cognizant of

that, considering the impending bankruptcy of medicare. in 2009, the federal government spent $502 billion on medicare and $37 9 billion on medicaid. it is estimated between $40 billion and $70 billion was lost to fraud that year. however, officials from the department of health and human services and the department of justice announced last month that their health care fraud prevention and enforcement efforts required $4 billion of fraud. so, compare that $4 billion to the $44 billion to $70 billion. it means that we still have a very long way to go. when it comes to public programs like medicare and medicaid, it is clear that the federal government needs to be more

effective in combating waste, fraud, and abuse. the federal government has simply made it too easy for bad actors to steal from each of these programs. it says a lot when you hear that organized crime has moved into health care fraud because it's more lucrative than organized crime. medicare and medicaid also attract more criminals because the profits of fraud greatly outweigh the consequences if you get caught. and then there are those who don't even get caught. taxpayers' dollars should only go to bonafide providers and medical suppliers. but the reimbursement system is set up so that the federal government pays first and asks questions later. in other words, the system is based on a program that you call

pay-and-chase system. over the years coppin congress s given the executive branch more authority to improve the enforcement of fraud, waste, and abuse reform. senator baucus and i developed a bipartisan set of legislative proposals to combat fraud, waste, and abuse. many of these proposals are in the bill that i introduced in the last congress, s. 2964, the strengthening program, integrity, and accountability in health care act. and many were included even in the patient protection and affordable care act. these provisions did not draw opposition from either side of the aisle. tackling fraud, waste, and abuse in health care is one of the areas where there is widespread agreement. but our work does not end with the passage of legislation. congress needs to keep the pressure on federal officials to

do everything possible to prevent and stop fraud. there is also more that congress must do in ways of reform to enhance the government's ability to fight this fraud. we need to ensure that phantom doctors, pharmacies, and durable medical equipment suppliers cannot simply bill medicare millions of dollars in just a few months and then get out of town scott-free. health and human services and the center for medicare and medicaid services need then to use the tools already available to make sure that claims are legitimate before they're paid. but even with all of that, we must remain vigilant in our oversight efforts, which is the constitutional responsibility of the legislative branch of government. because tomorrow's criminals

will find ways to get around the laws and regulations that we put in place today. that's why i've introduced the strengthening program, integrity and accountability in health care act of 2011. this bill contains the remaining proposals from s. 2964 of the last congress. the proposals that are necessary to enhance the government's ability to combat medicare and medicaid fraud. it builds on reforms that we made in that last congress. the bill would require the secretary of health and human services to issue regulations to make medicare claims and payment data available to public, similar to other federal spending disclosed through www.usaspending.gov.

this web site lists almost all federal spending, but it doesn't include medicare payments made to physicians. that means virtually every other government program, including even some defense spending, is more transparent or responds to the citizens' right to know than spending by the medicare program. and so that differential between defense spending and most other government programs and what we allow the public to know about the medicare tax dollars being spent is too big of a gap and one that we should not tolerate anymore. because a taxpayer dollar spent on medicare isn't any different than the public's right to know about a taxpayer dollar spent on defense programs or let's say

even for this senator, with my background in farming and participating in a family farm operation. the public can read in the newspapers of iowa, as they can for every state, the amount of money that a certain senator -- or i shouldn't say "senator" -- a certain farmer gets from the farm program. it's all taxpayers' dollars. now, in addition, this bill also goes on to create an additional -- a national clearinghouse of information so that we can better detect, prevent, and thereby deter medical identity theft. this is about the federal government sharing information it already has in ways that protect the taxpayer and work against those defrawgd the system. -- defrauding the system. the bill would also change federal laws that require medicare to pay providers quickly, regardless of ris the k

of fraud, waste, and abuse. under current law, the government is required to make payments for what's called a clean claim within 14 to 30 days before interest accrues on the claim. now, that is not enough time for the limited number of medicare auditors to determine if a claim is legitimate before a payment has to be made. the result is that this what we call "prompt payment rule" requiring that medicare pay bad actors first and ask questions later, which leads to that pay-and-chase system i previously mentioned. so this bill would add to the tools that congress provides to the executive branch last year to prevent fraudulent payment on the front end. it would extend the time that payments must be made by the

secretary of health and human services, determines if the secretary -- if the secretary determines there's a likelihood of fraud, waste, and abuse. in addition, the bill would expand healt health and human ss inspector general's authority to exclude an individual from participating in the federal health care program. i'd like to give you an example. the inspector general would be able to exclude an individual if the individual had ownership or controlled interest in antity at the time the entity -- in an entity at the time the entity engaged in misconduct, such as health care fraud. i know that's common sense to the taxpayers of america, but it's not something that the inspector general can do today. i still have other areas that my bill addresses. and that is in the area of

illegal, unapproved drugs. just last week the "los angeles times" reported that the food and drug administration is struggling to keep unapproved drugs off the market. it reported that -- quote -- "in many cases, the agency doesn't even know what the drugs are or where they are." end of quote. this is another example of how the federal reimbursement system creates an incentive for bad arbgdz to get around the rule. in this case those rules are the food and drug administration requirements for putting a drug on the market. medicaid pays until the food and drug administration identifies a drug or class of drugs as not approved for marketing and then taking formal action. under such circumstances, the federal government doesn't even have the option -- even the

option -- to chase after previous payments. my bill would stop such payments unless a state medicaid program first verifies with the food and drug administration that the drug is being legally marketed. again, that may sound like common sense, but it's something that can't be done without change of law. the changes i'm proposing would go a long way to deter those who would defraud our health care system. it also would provide greater protection to the taxpayers. fighting fraud, waste, and abuse in medicare and medicaid is vital to the sustainability of each of these programs of medicare and medicaid. my bill will help add to the reforms that we passed last year. it will fix some of the blatant problems that incentivize and reward waste, fraud and abuse. mr. president, over 100 million

americans rely on medicare and medicaid for health insurance. right now these programs, as we all know, every member of this senate knows, and most of the public knows that these programs are on an unsustainable path. my bill takes necessary steps to move these programs towards sustainability, and i urge my colleagues to support this legislation and to help me by cosponsoring it. i yield the floor, and i would suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

a senator: madam president? the presiding officer: the senator from utah. a senator: i ask unanimous consent to suspend the roll call. mr. lee: i'm on the floor to speak in support of senate amendment 15, which i proposed in connection with the patent bill. a bill that i support and a bill that i intend to vote for and a bill that's going to be used as a vehicle for this amendment that always for the -- calls for the sense of the senate on the support for the need of a balanced budget. i'm grateful to have the support

of my good friend, former governor of west virginia, joe man chin, who is -- manchin, who is cosponsoring this amendment with me. it calls for senators to come forward and vote on whether or not we should amendment the constitution and submit that to states for ratification. to restrict our power to engage in deficit spending. we, as members of congress, are authorized as pursuant to section 1, clause 2, to incur debt in the united states' name. this power has been abused over time to such a degree we're almost $15 trillion in debt and by the end of the decade we will have amassed interest payments that will be approachin approaching $1 trillion. this threatens every government program under the sun. whether you want to protect national security or government defense, you should be concerned about this practice that will

threaten the livelihood of so many americans that will be -- whether it is to fund their day to day existence or to fund activities that provide for our safety and security as a nation. we do have increased reason to be optimistic about this for a few reasons. we have polling data that show that americans support the idea of a balanced budget amendment. secondly, a recent g.a.o. report shows that we could find at least $100 billion annually in wasteful government spending. this is the type of wasteful washington spending that we ought to have eliminate add long time ago that we could eliminate and would be forced to eliminate if we had a balanced budget amendment. it would require us to address issues that will confront our children and our grandchildren, some of whom are not yet born. as a proud and happy father of three, i can tell you that as difficult as the choices that we will have to make may be, i am

unwilling, as a father, to pass these problems on to my children and my grandchildren who are yet unborn. i'm unwilling to pass along to them a system that mortgages the future of future generations for the simple purpose of perpetuating government largess and wasteful washington spending. all this amendment does is it calls on members of the senate to come forward and say they support the idea. by voting in favor of this, they don't have to embrace any particular balanced budget amendment proposal, but what they do say is that they want the wasteful washington spending to stop. that they want the perpetual spending practice to stop, that they want us to stop the practice of mortgaging the future of future generations. this is immoral. it's unwise. and it ought to be illegal. soon it will be.

and with this amendment, we'll set in motion the sequence of events that will lead to just that. madam president, i yield the floor and suggest the absence of a quorum. a senator: madam president? the presiding officer: the senator from pennsylvania. a senator: thank you, madam president. i just wanted to rise this afternoon to express my very very strong support for senator lee's proposal today, his amendment, and the underlying constitutional amendment that i hope this body will take up at some point soon. i commend senator lee for his leadership on this, for introducing this now. mr. toomey: you know, i feel a tremendous sense of urgency. i don't think we have time to waste, time to wait, time to kick this can down the road anymore. we've done that too long. the fact is a balanced budget amendment to our constitution would provide the kind of fiscal straitjacket that this government clearly needs.

you know, if we operated the way that many states did, if we operated the way that all businesses did, if we operated the way most families did and lived within our means, maybe this wouldn't be necessary. it's just become obvious to everybody that we're not living within our means. not even close. we're running a budget deficit this year of $1.6 trillion, that's 10% of the size of our entire economy. just this year alone. last year was $1.5 trillion. if we don't do something very serious about this now, not soon, not in the next few years, but now, if we don't do something about this now, this is already at unsustainable levels. you know in -- in 1988, the total debt as a percentage of our economy was about 40%. in 2008, the total debt as a percentage of our economy was about 40%. today it is at about 63% and by october it will be 72%. these numbers are staggering. and it's not sustainable. it's already costing us jobs

because this huge level of debt and the ever increasing debt from the ongoing deficits raise real doubts in the minds of investors and entrepreneurs and madam presidenandsmall business. the threat of serious inflation, high interest rates, even a financial disruption, grows dramatically as you pile on this debt. this isn't just speculation or theory, we have seen this with other countries that have gone down this road. the good news is it's not quite too late. i think we can do this. i think we can get our spending under control. i'm absolutely convinced, madam president, that we can have tremendous prosperity and tremendous robust recovery if we follow basic fundamental principles that have always led to prosperity wherever they've been tried. there are several. i won't go through all of them. one of the fundamental ones is a

government that lives within its means. i would define the means as keeping a budget that is balanced. this amendment expresses the will of the senate that we ought to do this. and i just strongly hope that all of my colleagues will join senator lee in this very constructive amendment. and, with that, i yield the floor. the presiding officer: the senator from iowa. mr. grassley: i note absence of a quorum. the presiding officer: without objection. the clerk will call the roll. quorum call:

quorum call:

mr. durbin: madam president? the presiding officer: the senator from illinois. mr. durbin: i ask unanimous consent the quorum call be suspended. the presiding officer: without objection. mr. durbin: madam president, i know personally the extraordinary efforts made by the chairman of the senate judiciary committee to bring this reform bill to the floor, and i have worked with him in the past and it has not been an easy task. many times, i know he felt that he was close to having the right bill at the right moment, and then it slipped away, but his determination and his capacity to bring people together has resulted in this moment where the bill is before us, and it's important that it is not just because of his hard work, but it's important because of what it means for this country. i don't know if it's formally been done but this bill is being recharacterized as the america invents act instead of the patent reform act because those few words tell a much bigger story.

we are talking about the kind of innovation in research in america that will create successful companies and good american jobs, and that's why this bill's important. it's been a long, long time, going back to our origins as a nation, when we recognize the right for those who invent things to have some proprietary, personal interests in those inventions, and we set up the patent and trademark office for that purpose. unfortunately, that office of the federal government isn't keeping pace with the creativity of our country, and that's why senator leahy has brought this bill to the floor. it's bipartisan legislation. i want to commend him for his work on it, and i want to commend my republican colleagues for joining him, senators grassley, kyl, sessions and hatch have also worked diligently on this. this may not be the simplest area of the law. i can remember when i was in law school here in town that there was one student. he was the only african-american student in my class, and that goes back to the days at

georgetown law center, leahy, when there were few minorities and few women. but he was african-american, he wore a white shirt and tie to class every day. i went up to him one day and said, so tell me your background. he said i'm an engineer and i want to be a patent lawyer, and i quickly moved to another table because i realized there wasn't anything we could talk about. i knew nothing about his world. but it is a specialized world and one i'm sure he was very successful in. patent law is something very hard to explain and i think is part of the reason why this bill has taken some time to come here. but economic growth is driven by innovation. if you have a good idea for a new product in america, can you get a patent to turn that idea into a business. millions of good american jobs are created this way. the list is endless. patents have been the source of great american stories. joseph glidden, a farmer from dekalb, illinois, patented barbed wire fence in 1874. it dramatically changed the way ranchers and cattlemen and

others were able to do their business as they settled the frontier in america. i might add that the dekalb high school nickname is the barbs as a consequence of this one discovery. glidden's invention made him a wealthy man, but his legacy included granting the land for what became northern illinois university in dekalb. or ives mcgafffey of chicago invented one of the first vacuum cleaners in 1869. another person from shelbyville, illinois, said if nobody else will invent a dish washing machine, i'll do it myself. in 1886, she did it and got a patent for it. the company she created is now known as whirlpool. our patent laws said the rules for american innovation. by giving a term of 20 years, patents provide a great incentive for investment. patents enable inventions to be shared with the public so new innovations can be based upon

them. it has been a long time since we have looked at our patent laws, really updated it. and just think about this, putting it in perspective. it's been over 50 years, and i want to commend senator leahy for tackling this, not easy. the pace and volume of innovation has quickened a great deal since we looked at this law over 50 years ago, and the patent and trademark office has struggled to keep up. over the last few years, congress has debated how best to modernize our patent law. it's been a tough issue. we have one set of patent laws governing the incredibly diverse range of inventions and industry. in trying to update our laws, we have to be careful not to make changes that benefit some industries but undermine innovation in others. the bill before us strikes the right balance. that's why i voted for it and support it. it's a product of years of bipartisan negotiation, it's a good compromise. consensus legislation passed out of the judiciary committee a few weeks ago with a unanimous 16-0 vote. it's supported by the administration, president obama,

and his cabinet officers, and a broad and diverse group of stakeholders. all the way from the american bar association to the afl-cio to the biotechnology industry organization, the list is very long. in my own home state, i went to the major manufacturing companies and said to them you look at it because these inventions are your future, and you've got to be confident that what we do to the law is consistent with new inventions, new innovations and new jobs, not just at your company but at other places. and i'm happy to say that those supporting it include the illinois tool works, caterpillar, the largest manufacturer in my state, motorola, monsanto, abbott, i.b.m. and pepsico. right now there is a backlog of over 700,000 patent applications which they are struggling to clear. buy -- think about that, 700,000 inventions and ideas that are waiting to be legally recognized so they can go forward in

production. this bill will streamline the operations and adjust the user fees to make sure the agency clears the backlog. the bill takes steps to improve submission of information to the p.t.o. pong pending applications, and i want to know it keeps user fees low for small start-ups and individual investors. in past years, there were some parts of the bill that generated controversy, including provisions relating to damages and venue and patent infringement lawsuits. the good efforts in this bill that have been negotiated have resulted in these provisions no longer being a subject of controversy. i know we'll have some amendments offered to the bill, and i expect we'll have a good debate on it. i expect at the end of the day, we're going to have a strong bipartisan vote to passing this bill. senator leahy now is trying to get this train into the station. there are a lot of people bringing cars here who want to hook on because they know that this is an important bill and likely to pass. there are some areas, i might add, that we did not discuss in

committee and which i considered raising an amendment on the floor but held back on, and one of them relates to a controversial issue of gene patenting, which i have been learning about recently. it's my considerate opinion that this is now working its way through the courts, and to try to intervene on the floor here would be premature. the courts have to decide whether or not people can patent genes. there was a recent article -- or a recent story i saw on "60 minutes" where a company known as myriad had patented the gene for breast cancer. now, it strikes me -- they have now created a test, incidentally, to determine whether a woman has this gene, and the test is in the range of of $4,000 to $5,000. the actual cost of the test should be much lower, and the question, the obvious question the courts are deciding, well, how can you claim ownership of a gene that occurs in nature and human bodies that you didn't create? well, that's the question before the courts.

we can debate it here for a long, long time and maybe never have resolved it, but depending on how the courts come out on this issue, we may visit it again. i hope the house is going to take this up quickly. i know they want to look it over from their perspective, but we need to pass this. if we're talking about creating jobs and successful, thriving businesses in america, this bill needs to pass. thanks, chairman leahy, for your leadership and for your hard work on this issue. it's an honor to serve with you on the senate judiciary committee, and i yield the floor. mr. leahy: thank you very much. madam president, i thank the distinguished senior senator from illinois, and i -- the presiding officer: the senator from vermont. mr. leahy: and i thank the distinguished senior senator from illinois who has been an invaluable member of the judiciary committee all the time i have been there, and it's very, very helpful. i appreciate what he has said. i find interesting the list of patents from his home state of illinois, and i think each one of us can point, some with

pride, and it's -- but if we're going to stay competitive with the rest of the world, we have got to get this bill passed. we have got -- it's been 50-60 years since we have updated our patent law, and we are way behind the rest of the world, we have to be able to compete, so i thank the senator. and, madam president -- and i have cleared this with the senator from iowa -- i ask unanimous consent that notwithstanding the adoption of the leahy-grassley amendment number 121, as modified, i ask that the amendment be modified further with the changes that are at the desk. the presiding officer: without objection. mr. leahy: i thank the chair. madam president, we're down to very few things. i hate to put in another quorum

call and then hear from the senator. i wanted some time to speak about amendments and i know that sometimes we -- we follow the dracula rule here, that -- being that we don't legislate until it's dark and dracula comes out, but maybe we could -- the days are getting longer. maybe we could do some things during daytime hours. so i -- i send out a -- a call, a pleading call, people who really want their amendments, come forward, let's have a vote up or down on them and be done -- be done with this. so with that, madam president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

o quorum call:

the presiding officer: the senator from louisiana. mr. vitter: thank you, had. madam president, i ask unanimous consent to end the quorum call. the presiding officer: without objection. mr. vitter: thank you, madam president. madam president, i rise in strong support of the lee amendment which is a sense of the senate that this body and the house should pass a constitutional amendment requiring a balanced budget. madam president, clearly i think in every american's mind, our top domestic challenge is to get hold of our fiscal situation, to move us to a sustainable path, to tighten our belt in the federal government, just like every american family has been doing for many years in this

recession. we're making a start, a real but modest start, in terms of this year's budget, and i was happy that the senate followed the lead of the house and passed a two-week c.r. today that has substantial cuts, the exact level of cuts as the house passed for the rest of the fiscal year. i support that important start in terms of this year's budget, and, of course, we need to finish the job by passing a spending bill for the entire rest of the fiscal year with that level of cuts or more. and that's a start. but it's only a start. the other thing i think we need to do, madam president, is create reform, a structure that demands -- that demands that congress stay on that path to a balanced budget until we get

there. and i believe the most important thing we can create to demand that, a straitjacket for congress, if you will, is a balanced budget constitutional amendment. and, unfortunately, madam president, i think congress time and time again, over years and decades, has proved that we need to put congress in that straitjacket, if we're going to ever get to a sustainable fiscal situation, a balanced budget. madam president, this isn't some academic debate. this is about the future of our kids, our grandkids, and our immediate future, because we could be put into economic chaos at any time because of our untenable fiscal situation, because 40 cents of every dollar the federal government is spending is using borrowed