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Dana R.
Republican CA 48

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  • Innovation Act

    by Representative Dana Rohrabacher

    Posted on 2015-06-24

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    ROHRABACHER. Mr. Speaker, today I rise to draw the attention of my colleagues and, yes, the American people to a legislative threat to the safety and well-being of the American people.



    We dodged a bullet in the last session of Congress about this very same issue that I will be discussing this evening. But today, again, we are in serious jeopardy of having an important right of the American people neutered from them, taken away from them by a power play here in Washington, D.C., being conducted by multinational corporations who have done everything they can to impact on this system while the American people do not know that there is an attempted move against their constitutional rights.

    Alerted by an aggressive yet an unsuccessful attempt to stop this rigorous and rancorous legislation in the House, the Senate was inundated last year about a similar bill that was supposed to be reform, and it was very similar to the one that I will be discussing today.

    {time} 1815 There was so much opposition to that bill in the Senate that they simply refused to bring it up to the floor for consideration. The bill had already passed the House; and as I say, today, a similar bill now is making its way through the House and will be on the floor, and it is a great threat to the freedom, security, and well-being of the American people.

    What was that issue that was rammed through the House and once it was exposed that the Senate turned it back? Well, it has been an ongoing fight over 20 years, a classic case of crony capitalism that plagues our country. The big guys are trying to diminish the rights of the little guys in order to make more money--surprise, surprise.

    In this case, however, what we are talking about, they will not only make more money and take that from the little guys, but it will undermine America's prosperity and security in the long run.

    Mr. Speaker, I am certainly not opposed to the profit motive, but first and foremost, we need to ensure that powerful forces don't change the economic rules in order to enrich themselves.

    Unseen by most Americans who are not paying attention, but are paying attention to the important things in their lives: their children, their families, their jobs, their schools, and their churches; but they have been basically unaware that there is an attempt by mega-multinational corporations to undermine and, yes, destroy a constitutional right of our citizens--this in order to fill their pockets at the expense of the American people who don't really understand and even know this power play is going on.

    I am referring to an attack on the fundamental constitutional right of the American people to own what they have created. This is a right that has been written into the law at the Constitutional Convention--it is in our Constitution--that is under attack in a clandestine legal maneuver that would neuter America's inventors the protection that they were granted by the Constitution and permit powerful multinational corporations to steal what rightfully belongs to American inventors as granted to them as a right in the Constitution.

    Thus, Mr. Speaker, ordinary Americans, of course, are not as able to get their voices heard at times here in Congress and big corporations are. They have whole stables of lobbyists. Tonight, we need to mobilize the American people and have them make sure that they contact their Member of Congress.

    I will alert my fellow colleagues to make sure that they pay attention to what is happening in this piece of legislation that is now being rammed through Congress.

    It isn't just about, of course, dispossessing. This issue isn't just dispossessing individual inventors. It is a power grab that, if they are successful in undermining the constitutional rights of inventors to own for a given period of time what they have created, this change in our constitutional law will undermine the prosperity that we have enjoyed as Americans.

    The less than forthright attack on our patent system will undermine the economic well-being of our working people who depend on the United States to be technologically superior in order so that they can outcompete other peoples in other countries who come from poor societies who work just as hard, but don't have the technological advantage that we Americans have.

    Mr. Speaker, the American working people have always had the advantage that they can be more productive because our country permitted the technological development of the means of production that made our workers the most productive in the world.

    People are working hard all over the world, but it was the people of the United States who coupled that with [[Page H4640]] freedom and coupled that with technology, and it uplifted everyone. Our Founding Fathers believed that technology, freedom, and, yes, the profit motive was the formula that would uplift humankind. They wrote into our Constitution a guarantee of the property rights of inventors and authors.

    It is the only place in the body of our Constitution where the word ``right'' is used, in article I, section 8, clause 8 of the Constitution of the United States: The Congress shall have power to 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.

    This provision has served America well. It has led to a general prosperity and national security, and it has permitted average people in our country to live decent lives and to have good jobs; but instead, now, we are putting all of that at risk because some multinational corporations want to steal the technology that has been developed by our little guys, our small inventors.

    Our small and independent inventors are where the new ideas come from. These big meganational corporations have huge bureaucracies that are not the source of the great discoveries that we have had over the last two centuries.

    Americans work hard, as I say, but so do all the other people in the world. It is technology that makes the difference. Our technology has multiplied results of that hard work. Yes, that is the secret of our success, technology and freedom.

    That was put in place not just because we talk about it, but because we wrote that into our law, our basic fundamental law, the Constitution, and we have developed from that moment the strongest patent system in the world, and that is what has made all the difference.

    Benjamin Franklin and Thomas Jefferson were men who believed in technology, believed in liberty and freedom, and believed that we could uplift every human being, not just the elite in our society; thus they made sure that, in our Constitution, we had this provision that we set our course toward uplifting all people through technology, hard work, freedom, and the profit motive.

    Yet, today, multinational corporations run by Americans--and maybe by some multinational corporations that just have Americans working for them--want to diminish the patent protection our Founding Fathers put in place, want to diminish the patent protection that has served us so well, and over the years, we fought and turned back several efforts to weaken the patent system.

    The American people are unaware of this. They are unaware that, for the last 20 years, there has been this attempt--and they call it harmonizing our patent system with the rest of the world, when we have the strongest system, and they were trying to weaken it.

    How does the rest of the world respect the rights of the little guy? They don't. In fact, our patent system has said that if a man or a woman--an inventor--applies for a patent overseas that, after 18 months, anybody who applies for a patent over there has a different situation than our patent applicants.

    An inventor who applies for a patent in the United States knows that his patent application will be totally confidential until the moment he is issued the patent. When that patent is issued, then it can be published, but he then has the legal power to protect his patent rights for a given period of time. Traditionally, that has been 17 years of guaranteed protection.

    Well, that is not the way the rest of the world works. The rest of the world wants 18 months. Eighteen months after you apply for a patent, they publish it for the whole world to see, even if the patent has not been issued; thus any inventor in that case, everything that he or she has invented and all of the research is now made available to one's competitors. That destroys incentive, and in fact, that was the goal 20 years ago that Marcy Kaptur of Ohio and I were able to stop that provision from being put in the law.

    Mr. Speaker, because of what they were trying to do in harmonizing this law, was that every American today--think about it--every American inventor today, anybody who didn't get their patent in 18 months, it would be published to the world, and we would have a massive stealing of our technology and undercutting of our technological superiority.

    I might add the other thing they were trying to accomplish was they said--and overseas, they don't have this guarantee--and that is, if you apply for a patent, if it takes you 10 years to get your patent, you still have 17 years of guaranteed patent protection from the time it is issued.

    Overseas, they start the clock ticking at 20 years when you file. If you file for a patent and it takes you, let's say, 10 years to get your patent, in the United States, you would have 17 years of protection. Overseas, you end up with 10, sometimes 5 years of protection.

    Mr. Speaker, we have the strongest system in the world. It has worked for us. Now, we have people over the last 20 years who have tried everything they could to undermine it. We won those early fights against the two provisions I just described.

    Well, after a few years of this, of course, Marcy Kaptur, a strong coalition, and I managed to thwart those efforts, but today, we see another--another--effort to try to undermine and diminish the patent protection that we have been fighting to preserve for these last 20 years.

    Mr. Speaker, 3\1/2\ years ago, the House passed the America Invents Act which we warned fundamentally diminished the patent system, weakening its protection for ordinary citizens.

    The negative impact of that bill--and that is just 3\1/2\ years ago-- the negative impact is overwhelming. We changed, for example, the fundamental idea in that bill, one of the ideas that was changed, from our country's founding, it was always the first person to invent something and can prove they invented it, they will get the patent.

    Well, they have changed it to the first not to invent, they changed that to the first one to file for a patent is going to get the patent, so that smaller and independent inventors who can't afford to go over and over again and every new twist of their invention get a separate patent for, these small inventors have been facing major corporations that then immediately will go in and file for patent after patent after patent because they can afford it.

    Mr. Speaker, what they have done now is these corporations are flooding the Patent Office with applications. Of course, there are not more people working in the Patent Office; thus they are feeling a dramatic reduction in their ability to get the job done because they are being flooded with patent application because we have changed the basic rules of the game, and it has worked against technological development in our country.

    The onslaught, as I said, of course, is aimed at neutering the rights of the small inventor. We have barely turned back this latest attempt which, last year, we passed through the House and went to the Senate, but when the Senators, of course, got a message from their own colleges and universities as to what this would do and the damage that it would do to the universities, we were able to stop it and stop the effort in the Senate.

    Now, we have the American Innovation Act that has been presented here. This is yet the most recent onslaught. Over a 20-year battle of trying to protect the interests of the little guy, now we have the American Innovation Act.

    Let me just suggest that these big megacorporations over the years, who have stepped up with these proposals that would diminish the right of the small inventor, didn't say: We are trying to diminish the rights of the small inventor.

    That is not what was being sold to the Members of Congress. Instead, what was sold in the first onslaught 20 years ago was the submarine patent. That is why we have got to eliminate the ability for people to have a patent application that is secret until it is granted. That is why, at 20 years from filing, you don't have any more patent protection.

    Well, that was a derogatory term that was used to confuse the public in order to try to secure their goal of diminishing the right of all inventors, especially small inventors. They are insisting, of course, now that there is another threat and that we should pay attention to this other threat that has emerged that should motivate us to, again, diminish the rights of American [[Page H4641]] inventors to protect their own patent because, supposedly, patent law is being abused by the so-called patent trolls.

    {time} 1830 Now, what are patent trolls? Let me note that we all understand that there are frivolous lawsuits that take place throughout the American system. We have a system of justice. You can sue someone if that person has damaged you. Yet there are frivolous lawsuits. Lawyers will do that. And we know that that is something we have got to deal with. Judges need to be stronger in that case. But they exist.

    And yes, there are frivolous lawsuits that are presented by lawyers over patent right infringement. And sometimes these frivolous lawsuits--and many times--are just based on phony claims that they claim they have the right in the patent to this and they sue some businessman hoping he will just pay off. That is indeed a problem. It is not a major problem in the sense that it is a minor part of all of the litigation that goes on.

    Almost all the patent litigation that goes on, and most of the lawyers who are involved in this who are called patent trolls, are involved with legitimate claims against people who have infringed on the patent rights of especially small inventors. They are basically getting involved with the small inventor who does not have the resources to basically defend his patent against some large mega- multinational corporation. But, of course, big corporations would have us believe that what we are really talking about are frivolous lawsuits against them.

    No, there are many, many positive lawsuits that are totally justified. The vast majority of all lawsuits that come into play against these major corporations are based on a legitimate claim by someone who owns a legitimate patent who these big companies have just tried to rip off.

    And so what they are trying to do now is what? They are trying to make it more difficult for those little guys, even with any type of help from what they call a patent troll, to be able to actually bring their case of infringement against large corporations.

    What this basically is saying is we have got to change our justice system. We have got to change the rules of the game for every lawsuit because some people have been manipulating the law and having frivolous lawsuits.

    I don't think that that is what we want in America. We don't want to take away the right, the legitimate right, to go and defend yourself in court because some people use the courts in a frivolous or a manipulative manner.

    If the small inventor doesn't have the resources, for example, to enforce his or her own patent, and if they have been granted this patent legitimately by the Federal Government that they own this technology that they have developed, then there is nothing wrong with the fact that someone could come along and help them enforce it when a mega-multinational corporation is basically stealing their rights.

    I have consulted with a number of outside individual inventors and groups. They have affirmed to me that the legislation now being proposed in H.R. 9, the bill that was already passed through the Judiciary Committee, that that bill disadvantages the little guy against deep-pocketed corporations. And, in fact, every provision in the name of stopping patent trolls is a provision that would undermine the efforts of people who own legitimate patents and have legitimate patent claims, and undermine their ability to enforce those claims.

    So, basically, we are saying, and what is being said about patent trolls, yes, there are frivolous lawsuits and trolls sometimes are involved with frivolous lawsuits; but, by and large, that does not mean that the overwhelming number of lawsuits are not legitimate and they should have every right to call on someone to help them in their effort, basically, to defend their patent rights.

    Proponents of this legislation are covering the fact that what we really have here is a bill on H.R. 9 that makes it easier for big corporations to steal the technology secrets of the little guys. They would have us believe that all lawsuits are frivolous and the frivolous lawsuits are throughout our system. And instead of focusing just on frivolous lawsuits, they want us to have an overall diminishing of the rights to our inventors to enforce their patents and make it more difficult for them to do so.

    So tonight I draw the attention of the American people to H.R. 9. The Innovation Act, as I say, was introduced by Chairman Goodlatte and was passed through just a week ago or 2 weeks ago in the Judiciary Committee.

    In the last Congress, the House Judiciary Committee held hearings on this bill and witnesses at that hearing included Director Kappos and others. That was when we were discussing the America Invents Act. And people said: Let's go slow on this. Why are we trying to push this through in such a hurried manner? Well, they are trying to push it through in a hurried manner because, once people understand the implications of diminishing the right of people to protect their patents, they are going to find it has dramatic changes to the American way of life.

    For example, our universities now have discovered that if, indeed, H.R. 9 passes, that it will have a huge impact on the viability of their own scientific research and their own patents that they own by these various universities. It will diminish the value of patents across the board if we say that it is going to be more difficult to fight infringers and more costly for someone to fight someone who is infringing on that patent.

    So, according to sponsors of H.R. 9, this is, as I say, an attempt to control the trolls but, in fact, it is going to control the universities. It is going to control other companies other than these big companies that, as I say, are multinational companies. They are mainly in the electronics industry. Those people may want to take away some of these patent rights and let them sue, but that is not true in many others. You have got pharmaceuticals and biotech and many other industries that will be impacted in a horrible way because of H.R. 9.

    Now, what we need to do is make sure that the American people speak to their Member of Congress and talk to them about we do not want to make it more difficult for people who have developed new technologies to defend their technologies against infringers. We don't want to make it more difficult for people who are the innovators to innovate, to come up with the new ideas, to basically make sure that America is on the cutting edge and leading the way.

    And if we have harmonized with the rest of the world, as has been their goal for a long time--and, I might add, one of the things that we have to be very concerned about when we look at the trade bill that is being shoved through Congress is whether or not it will contain a provision that I helped defeat 20 years ago, which I just mentioned, that will make sure that our patent applications are published after 18 months.

    Now, I have been told that that is in the trade bill, and there have been all sorts of denials and some people are coming to me whispering, yes, it is in there. Well, we know we are operating under secrecy. We have been operating under secrecy here, so it is impossible for me to tell the public I know absolutely because I read it. Because had I read about this in that bill, I wouldn't be permitted to talk about it.

    But that is another one of those things that you have got to be very careful. What are you going to pass in this trade bill? It might be exactly what I am talking about, which is a diminishing of the patent rights of the little guy. And who is pushing that? Megacorporations, multinational corporations, the same guys who are pushing this trade bill on us and not letting us even know what is in the trade bill, which we are supposed to give up our right for an up-or-down vote not even knowing what is in that bill.

    So what we need to do is make sure we go through all of those items in this bill, H.R. 9. And people have to understand that every one of those provisions in this bill are aimed at making it more difficult for the small inventor to go up against a major corporation who is infringing on that inventor's creation.

    So how come we have got bills now that we can be bringing to the floor and that are aimed at helping the big guy steal from the little guy? This is not what America is all about. This [[Page H4642]] isn't what our Founding Fathers had in mind.

    The results of H.R. 9 will be increased patent infringement, meaning the little guys will have more and more of what they are developing stolen from them and, thus, there will be less incentive for the geniuses in our society to use that genius to create the new technologies that keep us safe--safe. It is our technological edge that keeps us safe, that makes us prosperous.

    We can't be prosperous unless we are the innovators, unless we are the guys with the new ideas rather than the people who are just copying other people. Our working people will not have a decent standard of living. This will reduce the legal remedies for those who have been infringed upon.

    It will reduce investment into small businesses that are aimed at technological development. Why would anybody want to invest with a small inventor or a small company that is developing technology if you are going to make it more and more difficult for that investor to get that money back if someone is stealing that technology? And, of course, it will do irreparable damage to our research universities, our inventors, our entrepreneurs, our economy, and our Nation.

    Every part of the so-called reform is detrimental to the patent owners, and especially individual innovators will be damaged. Every provision bolsters the patent thieves, the infringers, at the expense of the legal owners. All this done, covered by the idea, well, we have got to get at the trolls.

    I would like to share with you and with my colleagues just the story of exactly how that word ``troll'' came up.

    There is a head of a major corporation who changed his mind on this bill, who years ago was part of the clique pushing this sort of diminishing of patent rights. He told me that he sat in a room with other corporate executives to come up with the strategy: How are we going to get the American people to support legislation that actually hurts the little guy and helps the big guy steal from the little guy? How are we going to do that? Well, we need a straw man. We need something to get attention that is going to make it look like that is really the goal is to take care of that evil, sinister person over there. They went around the circle trying to come up with a name that was so sinister that would help them accomplish their mission. This is how cynical these people are who are offering this argument about trolls. And finally, the guy who was talking to me said: I suggested ``patent pirate,'' but by the time it got around, ``patent troll'' sounded so much more sinister, they decided they would accept that.

    Well, this is absolutely absurd. The fact is that if we are going to beat this onslaught of the big guys against the little guys, we little guys have got to stick together. We have got to make sure that we notify our Members of Congress and talk to other Members. We have got to pay attention because this is just another example of when we are not paying attention, we lose our freedom. We lose our freedom. Our rights are diminished.

    You can count on the fact, with the diminished rights of our inventors, wages in this country will go down. Our competitiveness will go down. We will not be secure. We will not be prosperous. This is an important issue, yet they are trying to get this by with as little debate and as little attention as possible.

    Now, how important is this? Well, it has always been important to our country. If we didn't have this patent protection that I am talking about, our country would be totally different.

    Let me suggest this. If you look back and see what our Founding Fathers had in mind, they wanted the little guys to be protected and have legal rights. This is what our country was all about. And the innovation and the rights of ownership, this was our innovation. This is what Benjamin Franklin talked about and put into our Constitution, and that has worked so well for us.

    {time} 1845 If we cut off the little guys and if we make sure that they are not going to profit from their hard work and their struggle, we will not have the new technologies. We will not be the leader in technology in the world, and we will fall behind, and every one of us will be hurt by this.

    One only needs to see how important technology was to our society. One only needs to take a look here in the Halls of Congress. There is a statue here in the Capitol of Philo Farnsworth.

    Now, who the heck knows who Philo Farnsworth was? They have done a special on him on education TV, I understand, on the History Channel. Philo Farnsworth was someone who really was important to our country, and there is a statue to Philo Farnsworth right here in the Capitol.

    He was a farmer in Utah, a man who was educated in engineering, but who had very little resources. In fact, he was a farmer. He set out between farming to try to find out and discover a technological secret that had perplexed some of the most powerful and financial interests in our country.

    RCA at that time--this was back at the turn of the century in 1910 and 1920--was under a man named David Sarnoff. He was America's premier executive at the premier technology company of the United States, a company that had vast resources and was deeply involved with trying to find out how to invent a picture tube.

    They knew what the radio tube was, but they didn't know how to make images on it. How could they make that radio tube show images? This is what they really were looking for, and they had invested so much in it. It was a huge challenge--an historic challenge--that RCA dumped millions of dollars of research into. However, they didn't discover it.

    The one who discovered the secret of the picture tube--and it has had so much impact on the American way of life since everything we have-- cell phones, computers, you name it--is based on a picture tube--was Philo Farnsworth.

    This independent inventor, this farmer from Utah, discovered the secret. He wrote RCA, naively believing that this big corporation would honor his discovery and permit him to at least have the benefit of being recognized as the person who made this discovery.

    Then RCA, when they got the letter from Philo Farnsworth, sent a representative to the laboratory there in Utah, which was in his barn, I believe. When he described to these top engineers from RCA what he had found, the scientists from RCA went away, saying: Oh, yes. We will be back in touch with you.

    Of course, they never did get back in touch once they learned of his secret, the thing that Philo knew was his. He ends up reading an announcement in a magazine of how RCA had made this major breakthrough, this discovery, except Philo knew. He was the one who had discovered it, and he was the one who had transmitted that information to RCA. This became one of the great jury and great legal battles of the 20th century.

    Philo Farnsworth, an individual person--not a wealthy person, the little guy--was up against the most powerful American corporation of the day, RCA, which had one of the strongest and toughest leaders. This corporate leader, David Sarnoff, had a whole stable full of tough, well-paid lawyers, all of whom vowed not to give one penny to Philo Farnsworth and not to recognize him because RCA deserved to get the credit and the money.

    Philo Farnsworth was able to mobilize support behind his claim. People invested in Philo Farnsworth's claim, and it went all the way to the Supreme Court. He was able to have people invest in his lawsuit. Slowly but surely, they made their way through the court system--as I say, all the way to the Supreme Court.

    God bless the United States of America. A poor, single man--an individual farmer--came up against one of the most powerful corporations in America at the time because he had invented something.

    The Supreme Court decided with Philo Farnsworth over this brutally powerful corporation in America. RCA was beaten by an individual farmer, but he had people who had invested in him. Had the same laws they are trying to promote now in H.R. 9 been in place, Philo Farnsworth and the other little guys who have invented things like this throughout our country's history would have been betrayed. There would have been nothing he could have done because H.R. 9 would have prevented [[Page H4643]] him from having had people invest in his lawsuit.

    That is what H.R. 9 does. It says, if a big corporation has stolen from you and if somebody has invested in helping you with your invention, they then become liable if you have to sue to get your money.

    If something happens where the big guys win--even if you are right and they win because they have better lawyers--anybody who invests in you has to pay part of the legal fees of these big corporations, which are millions of dollars of legal fees.

    No one is going to want to invest in a little guy like that. The Philo Farnsworths would be left out in the cold. The nature of our system would have been totally different than what it is today if we were to have had the provisions of H.R. 9, which they are trying to foist on us now.

    Let me give you another example. Black Americans happen to be some of the most inventive people in the United States. A lot of people don't know that. If you look back in the history of the Patent Office, as I have been looking, what you will find is, while Black Americans were being discriminated against in general throughout our whole system, the Patent Office was the one place that they had equal rights to come up with their ideas and to say, ``This is what I have discovered.'' Because of that, we have many great Black inventors. Maybe that is the reason former chairman of the Judiciary Committee, John Conyers, is taking my side in this debate on H.R. 9. He is opposed to that.

    We have a Black inventor, for example, who was the guy who invented the machine that permitted us to mass produce shoes. Before that time, Americans had one pair of shoes. We started to mass produce them because this Black American, struggling on his own because he was discriminated against like all Black Americans were in that day, managed to get his patent accepted, and he changed not only himself, but the whole country had shoes after that. Isn't that wonderful? That is what happens when you have freedom for the little guy and not just for the big guys. They come up with the new ideas. They can uplift everybody and make sure everybody's feet feel better. We are on the verge of losing that now. We are on the verge of losing that.

    When I go out in the hallway of Congress here, I see a statue to Philo Farnsworth. That is where it is. It is the statue of this Utah farmer who invented the picture tube and who had to take on the biggest company and the biggest corporate powers in the world, and he won. I will tell you that there is his statue there and that there is no statue to David Sarnoff, the corporate leader who tried to beat him down and steal his technology.

    I do not care how rich and powerful he was; we respect the little guy in this country. We want the little guys to be able to have rights that are protected by our Constitution. That is why our Founding Fathers put it in the Constitution.

    Many of these megacorporations, especially electronic corporations, don't care one bit about the well-being of the American people because they are multinational corporations now.

    We want to make sure our people maintain their rights, that we keep being the leaders of innovation, and that we are able to outcompete the world and not just take all of our jobs overseas and give them to cheap labor. We want to make sure that Americans benefit because this is what America is all about. It is where the little guy has the same rights legally, and they are protected.

    That is what this fight is all about when it comes to H.R. 9. People need to talk to their congressmen, and the congressmen need to talk to each other about what this is really all about. It is easy to yawn when someone says: ``I am going to discuss patent rights.'' ``Oh, yeah, patent law. How boring.'' It is not boring. It is going to make all the difference as to whether our country stays safe because we have to have the technological edge to be safe in the world we are getting into now. Our people are not going to have decent housing or a decent standard of living because the wealth that is produced isn't produced just by hard work, it is produced by technological efficiency, and we have to be on the cutting edge, or we will be outcompeted by people overseas. This is going to determine what America is going to be like.

    I would ask my colleagues to join me in opposing H.R. 9. Let's talk to the universities. Let's talk to the other industries that are being hurt dramatically by this. Just talk to the inventors. Let the inventors know.

    Mr. Speaker, I yield back the balance of my time.

    ____________________

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