Text: S.1785 — 109th Congress (2005-2006)All Bill Information (Except Text)

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Engrossed Amendment House (12/06/2006)

[Congressional Bills 109th Congress]
[From the U.S. Government Printing Office]
[S. 1785 Engrossed Amendment House (EAH)]

                In the House of Representatives, U. S.,

                                                      December 6, 2006.

    Resolved, That the bill from the Senate (S. 1785) entitled ``An Act to amend 
chapter 13 of title 17, United States Code (relating to the vessel hull design 
protection), to clarify the distinction between a hull and a deck, to provide 
factors for the determination of the protectability of a revised design, to 
provide guidance for assessments of substantial similarity, and for other 
purposes'', do pass with the following


            Strike out all after the enacting clause and insert:


    The table of contents of this Act is as follows:

Sec. 1. Table of contents.


Sec. 101. Short title.
Sec. 102. Designs protected.
Sec. 103. Definitions.


Sec. 201. Sense of Congress relating to Bayh-Dole Act.
Sec. 202. Filing of applications for extensions of a patent term.



     This title may be cited as the ``Vessel Hull Design Protection 
Amendments of 2006''.


     Section 1301(a) of title 17, United States Code, is amended by 
striking paragraph (2) and inserting the following:
            ``(2) Vessel features.--The design of a vessel hull or 
        deck, including a plug or mold, is subject to protection under 
        this chapter, notwithstanding section 1302(4).''.


     Section 1301(b) of title 17, United States Code, is amended--
            (1) in paragraph (2), by striking ``vessel hull, including 
        a plug or mold,'' and inserting ``vessel hull or deck, 
        including a plug or mold,'';
            (2) by striking paragraph (4) and inserting the following:
            ``(4) A `hull' is the exterior frame or body of a vessel, 
        exclusive of the deck, superstructure, masts, sails, yards, 
        rigging, hardware, fixtures, and other attachments.''; and
            (3) by adding at the end the following:
            ``(7) A `deck' is the horizontal surface of a vessel that 
        covers the hull, including exterior cabin and cockpit surfaces, 
        and exclusive of masts, sails, yards, rigging, hardware, 
        fixtures, and other attachments.''.



    (a) Findings.--The Congress finds the following:
            (1) Article I, section 8, clause 8, of the United States 
        Constitution provides that Congress shall have the power ``[t]o 
        promote the Progress of Science and useful Arts, by securing 
        for limited Times to Authors and Inventors the exclusive Right 
        to their respective Writings and Discoveries''.
            (2) The 96th Congress enacted Public Law 96-517, entitled 
        ``An Act to amend the patent and trademark laws'' (commonly 
        known as the ``Bayh-Dole Act'', in honor of its two lead 
        sponsors in the Senate, the Honorable Birch Bayh and the 
        Honorable Bob Dole), in 1980.
            (3) For 15 to 20 years before the enactment of the Bayh-
        Dole Act, Members of Congress considered, discussed, and 
        deliberated on the proper resolution of issues implicated by 
        the Act.
            (4) Before the enactment of the Bayh-Dole Act, the United 
        States was confronted by great economic uncertainty and 
        presented with unprecedented new challenges from foreign 
        industrial competition.
            (5) Before 1980, only 5 percent of patents owned by the 
        Federal Government were used by the private sector--a situation 
        that resulted in the American people being denied the benefits 
        of further development, disclosure, exploitation, and 
        commercialization of the Government's patent portfolio.
            (6) The Bayh-Dole Act established a ``single, uniform 
        national policy designed to . . . encourage private industry to 
        utilize government financed inventions through the commitment 
        of the risk capital necessary to develop such inventions to the 
        point of commercial application'', and eliminated the 26 
        different Federal agency policies that had existed regarding 
        the use of the results of federally funded research and 
            (7) The Bayh-Dole Act fundamentally changed the Federal 
        Government's patent policies by enabling inventors or their 
        employers to retain patent rights in inventions developed as 
        part of federally funded research grants, thereby promoting 
        licensing and the leveraging of contributions by the private 
        sector towards applied research, and facilitating the transfer 
        of technology from the laboratory bench to the marketplace.
            (8) Examples of the tangible products and technologies that 
        have resulted from the Bayh-Dole Act include, inter alia, an 
        improved method for preserving organs for transplant, a 
        lithography system to enable the manufacture of nano-scale 
        devices, the development of new chemotherapeutic agents, the 
        discovery of new therapies for the treatment of patients 
        diagnosed with rheumatoid arthritis, and countless other 
        advances in materials, electronics, energy, environmental 
        protection, and information technologies.
            (9) These new therapies, technologies, and inventions, 
        which have resulted from the collaborative environment fostered 
        by the Bayh-Dole Act, have directly contributed to the ability 
        of medical researchers to discover and commercialize new 
        treatments that alleviate patient suffering, enhance the 
        ability of doctors to diagnose and treat disease, and target 
        promising new medical research.
            (10) The Bayh-Dole Act has stimulated two of the major 
        contemporary scientific trends of the last quarter century--the 
        development of the biotechnology and information communications 
        industries--and the Act is poised to continue playing a central 
        role in new fields of innovative activities, including 
            (11) The Bayh-Dole Act has resulted in benefitting 
        taxpayers by generating millions of dollars in annual licensing 
        royalties for universities and nonprofit institutions--revenues 
        that are reinvested in furtherance of additional research and 
        education programs.
            (12) The incentives provided under the Act and the exchange 
        of technology and research between and among the research 
        community, small businesses, and industry, have resulted in new 
        cooperative ventures and the emergence of sophisticated high-
        technology businesses, which provide a major catalyst for 
        innovation and entrepreneurial activity.
            (13) More than 4,000 new companies have been created to 
        develop and market academic research and development since 
        1980, and it is estimated that nearly 2300 of these companies 
        were still in operation at the end of fiscal year 2003.
            (14) Lita Nelsen, director of the Technology Licensing 
        Office at the Massachusetts Institute of Technology, has 
        described the Bayh-Dole Act as ``one of the most successful 
        pieces of economic development and job-creation legislation in 
        recent history''.
            (15) The Bayh-Dole Act was described in a 2002 article in 
        The Economist (US) as ``[p]ossibly the most inspired piece of 
        legislation to be enacted in America over the past half-
        century. . . . More than anything, this single policy measure 
        helped to reverse America's precipitous slide into industrial 
            (16) The Government Accountability Office (GAO) found that 
        university administrators and small business representatives 
        considered the Bayh-Dole Act to have had ``a significant impact 
        on their research and innovation efforts''.
            (17) A study of business executives found that 9 out of 10 
        identified the Bayh-Dole Act as an ``important factor'' in 
        decisions to fund research and development in academia.
            (18) Howard Bremer, who served as patent counsel to the 
        Wisconsin Alumni Research Foundation from 1960 to 1988, once 
        observed that, ``[o]ne important factor . . . is that the 
        success was achieved without cost to the taxpayer. In other 
        words, no separate appropriation of government funds was needed 
        to establish or manage the effort''.
            (19) A 1998 GAO study found that the law had a positive 
        impact on all involved and that the increased commercialization 
        of federally funded research that resulted from implementation 
        of the Act had positively affected both the Federal Government 
        and the American people.
            (20) The President's Council of Advisors on Science and 
        Technology reported to the President in May 2003 that the Act 
        ``dramatically improved the nation's ability to move ideas from 
        research and development to the marketplace and into commerce'' 
        and that the system put in place for transferring technology 
        from nonprofit institutions, which includes universities and 
        Government laboratories, to the private sector has worked well.
            (21) The Bayh-Dole Act states, ``[i]t is the policy and 
        objective of the Congress to promote the utilization of 
        inventions arising from federally-supported research or 
        development; . . . to promote collaboration between commercial 
        concerns and nonprofit organizations, including universities; . 
        . . to promote the commercialization and public availability of 
        inventions made in the United States by United States industry 
        and labor; [and] to ensure that the Government obtains 
        sufficient rights in federally-supported inventions to meet the 
        needs of the Government and protect the public against nonuse 
        or unreasonable use of inventions''.
            (22) The Congress finds that the policies and objectives of 
        the Bayh-Dole Act have been achieved and that the patent law 
        has played a critical role in stimulating technological 
        advances and disclosing useful technical information to the 
            (23) The Congress finds that federally-funded research at 
        universities and Government laboratories and the partnerships 
        between such nonprofit institutions and the private sector play 
        a critical role in developing the technologies that allow the 
        United States to lead the world in innovation.
            (24) The Bayh-Dole Act and its subsequent amendments, which 
        include the Trademark Clarification Act of 1984 (Public Law 98-
        620), have played a vital role in enabling the United States to 
        become renowned as the world leader in scientific research, 
        innovation, ingenuity, and collaborative research that involves 
        institutions of higher education and the private sector.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) the Bayh-Dole Act (Public Law 96-517) has made 
        substantial contributions to the advancement of scientific and 
        technological knowledge, fostered dramatic improvements in 
        public health and safety, strengthened the higher education 
        system in the United States, served as a catalyst for the 
        development of new domestic industries that have created tens 
        of thousands of new jobs for American citizens, strengthened 
        States and local communities across the country, and benefitted 
        the economic and trade policies of the United States; and
            (2) it is appropriate that the Congress reaffirm its 
        commitment to the policies and objectives of the Bayh-Dole Act 
        by acknowledging its contributions and commemorating the silver 
        anniversary of its enactment.


    (a) Findings.--The Congress finds the following:
            (1) The Congress historically has provided vigorous support 
        for innovation in the useful arts by establishing a system of 
        patent protection for products and processes.
            (2) Through section 156 of title 35, United States Code, 
        the Congress sought to promote the development of innovative 
        drugs by granting patent term restoration to companies to 
        recover a portion of the patent term for such drugs that was 
        consumed during the approval process conducted by the Food and 
        Drug Administration.
            (3) Consistent with the historic purpose of promoting 
        innovation, patent legislation, and subsequent rules 
        promulgated by the United States Patent and Trademark Office 
        (PTO), have routinely given the PTO wide discretion to excuse 
        late filings and other mistakes that might otherwise result in 
        the forfeiture of underlying patent rights.
            (4) Contrary to this routine practice, however, under 
        section 156 of title 35, United States Code, the PTO has no 
        discretion to excuse a filing that is even one day late.
            (5) In order to be consistent with the intent of protecting 
        patent rights and promoting further innovation, the PTO should 
        be granted limited, circumscribed discretion to consider patent 
        term restoration applications filed in an untimely manner.
    (b) Filing of Applications.--
            (1) In general.--Section 156 of title 35, United States 
        Code, is amended by adding at the end the following new 
    ``(i) Unintentional Delay.--The Director may accept an application 
under this section that is filed not later than 5 days after the 
expiration of the 60-day period provided in subsection (d)(1) if the 
applicant files a petition showing, to the satisfaction of the 
Director, that the delay in filing the application was unintentional. 
Such petition must be filed with the application in the case of an 
application filed on or after the date of the enactment of this 
subsection and must be filed not later than 5 days after such date of 
enactment in the case of an application which, on such date of 
enactment, is pending, is the subject of a request for reconsideration 
of a denial of a patent term extension under this section, or has been 
denied a patent term extension under this section in a case in which 
the period for seeking reconsideration of such denial has not yet 
expired. The Director shall make a determination on a petition under 
this subsection not later than 30 days after the date on which the 
petition is received. If no determination has been made on the petition 
within that 30-day period, the petition shall be deemed to be 
            (2) Revival fees.--Section 41(a)(7) of title 35, United 
        States Code, is amended--
                    (A) by striking ``or for an'' and inserting ``for 
                an''; and
                    (B) by inserting after ``reexamination 
                proceeding,'' the following: ``or for an 
                unintentionally delayed application for patent term 
            (3) Effective date.--The amendments made by this section 
        shall take effect on the date of the enactment of this Act, and 
        shall apply to any application for patent term extension under 
        section 156 of title 35, United States Code, which--
                    (A) is filed on or after the date of the enactment 
                of this Act; or
                    (B) on such date of enactment--
                            (i) is pending;
                            (ii) is the subject of a request for 
                        reconsideration of a denial of a patent term 
                        extension under section 156; or
                            (iii) has been denied a patent term 
                        extension under such section 156 in a case in 
                        which the period for seeking reconsideration of 
                        such denial has not yet expired.

            Amend the title so as to read ``An Act to make certain 
        improvements relating to intellectual property, and for other 


  2d Session

                                S. 1785