Afghan womens and girls, some of the real tragedies that are taking place right now over there. These are things that languish where we could correct a throoft in this bill a lot of that in this bill. So theres no reason to put it off. We dont want to go through what we went through last time. Now is the time to prepare thoor that. All we have to do is get amendments down. No one should complain later on in november or december about not being able to have their amendments heard if theyre not out there right now bringing their amendments down. With that, its my understanding that senator mccain wanted to participate in this plea that were making but he has a statement hell be submitting for the record. With that, i would yield the floor. I suggest the absence of a quorum. The presiding officer the clerk will call the roll. Quorum call a senator mr. President . The presiding officer the senator from wyoming. Mr. Enzi mr. President , i ask the quorum call be set aside. The presiding officer without objection. Mr. Enzi thank you, mr. President. I rise to speak about an amendment i filed to the highway and transportation funding act. While my amendment did not get a vote, the issue it addresses is very important to my home state and so i want to take a minute today to talk about the issue and the need to address a situation that was created when we passed the map21 highway conference report in 2012. The conference report undid a carefully constructed compromise on the abandoned mine land program that was put together in 2006. It took apart the work that we had done by limiting the total annual payments of a. M. L. Funds to 15 million per year. Thats a change that only affected the state of wyoming. We usually dont do legislation that only affects one state when a number of them receive funds. What was worse, the provision was not in the house or senate highway bill. It was added in the dead of night without consulting anyone from the wyoming congressional delegation. I was extremely disappointed the provision was included in the conference report because senators from other coal producing states and i spent year and i spentyears working o. When the Surface Mining and control reclamation act was passed in 1977, a tax was levied against each pound of coal that was produced. The purpose of the tax was to reclaim the coal mines that had been enacted before the reclamation laws. Half of that tax was promised to the states where the coal was mined. That was known as the state share. The other half went to the federal government to administer the Reclamation Program and to provide additional funding to the states with the most abandoned mine lands. It was a simple enough concept. Unfortunately, like many things in washington, while the concept was good, clear and wellintentioned, its implementation was a nightmare and the program did not work as congress intended. For years, states were shortchanged and the reclamation work was not done or the states did it themselves at their own expense, expecting to get reimbursed. Thats the case in wyoming. At one point, the federal government owed the states more than 1. 2 billion. While more than 3 billion in Reclamation Programs remained incomplete and unfinished. The issue pitted the east against the west and the debate was always the same. When members from the east would argue that we should send more money to the states to support reclamation efforts, my colleagues from the west were just as certain that we needed to keep the federal governments promise to the states to provide the revenue they were entitled to under the provisions of the Surface Mining control and reclamation act. In 2006, a Bipartisan Coalition of senators, including me, fixed the broken a. M. L. Structure. It started with senator santorum approaching me with a proposal that had the support of a number of local coal companies, also the United Mine Workers of america, several other environmental groups and other businesses. After listening to the proposal, i laid out a set of principles that had to be included in their proposal if they were going to gain my support. First, i wanted to see the return of the money owed to states which included 550 million owed to my state. Because wyoming is a certified state, i also wanted to see that the money that came from the federal government wouldnt have any strings attached. The legislation accomplished that goal by guaranteeing that wyoming was to receive the money we were owed from the federal government over a sevenyear period. This is money in a trust fund. Now, trust funds are kind of interesting with the federal government because we put money in the drawer and then we take the money out and we put bonds in the drawer. And so theres really no money in the drawer. Think about that with social security. Its another one of our trust funds. Im one of the protectors of trust funds. But this was a trust fund. It only had bonds in there so it was difficult for us to get any money. Now, second, i wanted to guarantee that future moneys would be paid to the states like wyoming where significant amounts of coal are produced. Were almost federal half of the tax. Thats where it comes from. Third, it was important that more money be directed toward reclamation in the states where it was needed. More money where it was needed. And, fourth, there had to be a provision for orphan mine miner health. Sometimes thats kind of overlooked in this. But senator byrd and senator rockefeller was very adamant onn that and then we promised to take care of it. Whats an orphan miner . Their mine went out of business and they didnt get their health care. So we made a provision to take care of that. The legislation that we put together accomplished all four of those goals. We continued our efforts as a Bipartisan Group and in december 2006, we passed the a. M. L. Reauthorization as a part of the tax relief and Health Care Act of 2006. The coal industry and the United Mine Workers of america supported the bill. Members from certified states like wyoming supported the compromise, as did members from uncertified states, like pennsylvania and west virginia. As a senator, president obama voted in favor of the legislation that included this compromise. From all the available signs, it appeared that we had finally fixed the problem and helped to strengthen our state economies at the same time. Unfortunately, appearances are often deceiving. By limited a. M. L. Payments in the map21 conference report, congress once again made clear that taxpayers could not count on a federal trust fund to meet its obligations, to administer the tax dollars it collects each year in a proper and legislatively mandated manner. This has been contested and successfully defended year after year to preserve this money, and it was supported by a supermajority in this body until until it was included in this highway bill. And included in the highway bill in the conference report, not when we had an amendment on the floor that we could once again successfully defeat with a supermajority. It came out in the middle of the night and the next day we had an opportunity to vote for the highway bill. Now, the highway bill is probably one of the most crucial bills to any state in the nati nation. And if all you get to do is vote yes or no youre not going to take a look at a little portion of the bill where we steal a trust fund from one state, wyoming. And thats exactly what happened and it passed. Now, my amendment to the highway bill this time will address the problem and put things back together the way they were meant to be. Simply put, it will ensure that when a state has been promised it will receive a. M. L. Funds, it will receive them. Fortunately, i have the intent of congress and the support of many of my colleagues on this matter of such great concern to wyoming and to all the coal producing states. I want to particularly thank senators hatch and wyden for their commitment to address this issue created by the map21 conference report. This isnt just a problem for wyoming because the next time a Conference Committee goes looking for some money, they could steal it from the other a. M. L. States. My amendment would also encourage the production of energy right here at home by opening up the Arctic National wildlife refuge to drilling. The Congressional Budget Office estimates such an effort will increase gross federal seat recs by 5 billion over 10 years. Thats a lot more than we need to make this payment. There are other possibilities for offsets as well but thats one thats rather meaty and that is more than enough to pay the funds that were stolen from wyoming over 10 years and to pay for two years worl worth of transportation projects. Not just a shortterm fix on the transportation. I know my colleagues will see the importance of this matter to wyoming and to all the coal producing states. Its important that we take a look at this and protect the the validity of trust funds that we set up and not redo them without adequate debate or an actual vote on the trust fund that were violating. And weve done that on a couple of other trust funds as well. One of the ones that we also did was to impose an additional tax on those companies that have private pension funds. Because we have a pension benefit Guaranty Trust fund thats designed so that if a company goes out of business, a worker that works for one of those businesses will get at least 60 of what they were supposed to get in their retirement. Thats why its a pension benefit Guaranty Trust fund. And we u upped the amount that had to be put in by 80 per employee for each of the Companies Involved in that. And that was to go into the trust fund to make sure those funds would be available. But we diverted those before they got to the trust fund because the actual money could be replaced by bonds in the drawer in the trust fund, and so that money went to highways. And thats just another example of how were taking money from trust funds and using it ten years worth of trust funds and using it for twoyear projects. Weve got to change that and my amendment would be one of the ways of making that change. I thank the chair and yield the floor. The presiding officer the senator from rhode island. Mr. Whitehouse does the distinguished senator from utah seek recognition . Mr. Hatch yes, i was told at 6 15. Mr. Whitehouse why dont you proceed, then. Ill follow you. Mr. Hatch how long will the senator take . Mr. Whitehouse probably about 20 minutes. Why dont you go first. Mr. I ask unanimous consent that i be recognized at the conclusion of the remarks of senator hatch. Mr. Hatch i appreciate his remarks. I rise to speak about the importance of our patent system, how it continues to be abused by patent trolls. Most members in this body are fully aware of the crippling effect patent trolls are having on innovation and growth upon all areas of our economy ranging from main estate businesses to americas Largest Technology companies. Through abusive and meritless litigation, patent trolls extort intercepts from innovators throughout the country. How do they do it . Take for example the coffee shop down the treat that provides wifi service to its customers. The shop owners are using a technology exactly as it is intended to be used, but thousands of miles away the patent troll purchases broad patents you previously issued to someone else else. Then they send vague demand letters to the coffee shop and thousands of similar businesses accusing them often improperly of inflinchinging their questionable patents. Many target Small Businesses that they hope will agree to settle even though they have done nothing wrong simply because they do not have the resources to defend themselves in court. These settlements divert capital that could otherwise be used for research and development or to create jobs. And in many cases, it costs around 2 million. To fight one of these cases. So theyre forced into settling with whatever they can pay rather than doing what they really would hope to do and that is prove that there was an unmeritorious claim. The sad reality many businesses have little choice other than to settle other than spend the resources are required to fight in court and those who do fight back are forced to spend unless in litigation costs often with no chance of an award against a judgmentproof payment. James benson writing in the Harvard Business review confirms the economic burden of patent lawsuits is historically unprecedented. Research shows that patent trolls cost defendant firms 29 billion per year in direct outofpocket costs. In aggregate, Patent Litigation destroys over 60 billion in firm wealth each year. He further cites three studies on patent lawsuits currently in the works by researchers from the Massachusetts Institute of technology, rutgers, harvard and the university of texas. Based upon preliminary findings he states quote a consistent picture is emerging about the effects of Patent Litigation. It costs innovators money, many innovators and venture capitalists report it significantly impacts their businesses. They respond by investing less in r d and less in startups unquote. I agree with mr. Bessen. The evidence from these studies cannot be ignored. Patent trolls do hurt innovation and it is passes time for congress to do something about it. For the better part of a year, Congress Worked toward a legislative solution to combat patent trolls. In december we overcame the first legislative hurdle when the house of representatives passed the innovation act by a vote of 32591. The white house endorsed the Bipartisan Legislation by stating quote the bill would improve incentives for future innovation while protecting the overall integrity of the patent system unquote. Here in the senate i worked closely with a Bipartisan Group of senators to craft a compromise bill that could pass the senate. Countless hours of negotiation yielded encouraging results on key litigation reform, including fee shifting, heightened pleadened and discovery standards and a mechanism to ensure recovery of fees will be possible against Shell Companies. In the spirit of bipartisanship my republican colleagues and i were willing albeit very reluctantly to lower the bar on fee shifting if we maintained strong litigation reforms elsewhere. But i continue to believe that mandatory fee shifting is the best way to discourage Patent Litigation. In cases where a plaintiffs or defendants case is so weak it should have never been brought or defended in the first instance. That is why i included mandatory fee shifting in the hatchleahy reform act of 2006 and why i will insist on its inclusion in future legislation. Fee shifting alone gives a prevailing party little relief against patent trolls who litigate in the name of Shell Companies while their financial backers or interested parties remain beyond the courts jurisdiction. Thus there must be a mechanism to ensure that recovery of fees will be possible even against judgmentproof Shell Companies. The recovery of a word provision that our draft is intended to ensure that Shell Companies primarily in the business of enforcing patents in litigation cannot escape potential liability for attorneys fees if they are found to have pursued an unreasonable case. Those deemed interested parties may either voluntarily submit to the courts jurisdiction and become liable for any unsatisfied fees awarded in the case or opt out by renouncing sufficient interest related to the litigation or do nothing. In my view fee shifting without such a recovery provision is like writing a check on an empty account. Youre purchase supporting to convey something that isnt there. Fee shifting coupled with this recovery provision would stop patent trolls from litigating and dashing. Dashing away, i might say. Mr. President , there is no question that americas ingenuity fuels our economy. We must ensure that our patent system is a strong and vibrant as possible. Not only to protect our countrys premier position as the leader in innovation but to secure our own economic future. Patents encourage Technological Advancement by providing incentives to invest and develop new technology. It bears repeating that the governance of patents and copyrights is one of the essentials specifically enumerated powers given to the federal government at our nations founding. In my view it is one of the most visionary forwardlooking provisions in the entire u. S. Constitution. Unfortunately, at least in the 10 113th congress it is unlikely that this body will act to end the abuses by patent trolls. It is shameful that even intellectual property bills are now the latest casualties of our current partisan gridlock. Mr. President , as senators prepare to return to their home states for the august recess, i hope they will hear from people who represent the hotel, restaurant retail, real estate, Financial Services and Hightech Industries just to mention a few about the urgent need to pass patent troll legislation. I hope senators will be reminded about the opportunity the senate abandoned to pass this important legislation and to pass bipartisan, bicameral legislation that was supported by the white house but pulled from the senates agenda by the majority leader. I hope senators will recognize we must end the multibilliondollar assault on the American Businesses and workers because thats what it is. Through commonsense reforms to our patent laws, we can ensure that American Resources are used to innovate and create jobs, not wasted to settle or litigate frivolous claims. I am disappointed that during the 113th congress the senate has failed to act to address this critical challenge. Legislation to combat abusive litigation will be among my Top Priorities in the next congress and i intend to do