House Report 112-111 - PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 2021) TO AMEND THE CLEAN AIR ACT REGARDING AIR POLLUTION FROM OUTER CONTINENTAL SHELF ACTIVITIES, AND PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 1249) TO AMEND TITLE 35, UNITED STATES CODE, TO PROVIDE FOR PATENT REFORM

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

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

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

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

_______

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

_______

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

R E P O R T

[To accompany H. Res. 316]

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

SUMMARY OF PROVISIONS OF THE RESOLUTION

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

EXPLANATION OF WAIVERS

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

COMMITTEE VOTES

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

Rules Committee record vote No. 103

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

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

Rules Committee record vote No. 104

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

Rules Committee record vote No. 105

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

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

SUMMARY OF AMENDMENTS IN PART A MADE IN ORDER

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

SUMMARY OF AMENDMENTS IN PART B MADE IN ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 5. STATE AUTHORITY.

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

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

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

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

At the end of the bill, insert the following:

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

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

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

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

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

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

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

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

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

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

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

SEC. 22. PATENT AND TRADEMARK OFFICE FUNDING.

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

SEC. 27. STUDY ON GENETIC TESTING.

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

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

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

SEC. 30. LIMITATION ON ISSUANCE OF PATENTS.

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

SEC. 31. STUDY OF PATENT LITIGATION.

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

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

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

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

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

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

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

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

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

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

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

SEC. 29. SENSE OF CONGRESS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 29. SEVERABILITY.

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

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

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

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

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

SEC. 10. ELECTRONIC FILING INCENTIVE.

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

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

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

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

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