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Wednesday, September 28, 2011

The Leahy-Smith America Invents Act: Innovation Issues


Wendy H. Schacht
Specialist in Science and Technology Policy

John R. Thomas
Visiting Scholar


Following several years of legislative discussion concerning patent reform, the Congress enacted P.L. 112-29, signed into law on September 16, 2011. The Leahy-Smith America Invents Act makes significant changes to the patent system, including: 
       First-Inventor-to-File Priority System. The America Invents Act shifts the U.S. patent priority rule from the current “first-to-invent” system to the “firstinventor- to-file principle” while allowing for a one-year grace period. 
       Prior User Rights. The legislation establishes an infringement defense based upon an accused infringer’s prior commercial use of an invention patented by another. 
       Assignee Filing. Under the America Invents Act, a patent application may be filed by the inventor’s employer or other entity to whom rights in the invention are assigned. 
       Post-Grant Review Proceedings. The America Invents Act changes the current system of administrative patent challenges at the U.S. Patent and Trademark Office (USPTO) by establishing post-grant review, inter partes review, and a transitional program for business method patents. 
       Public Participation in USPTO Procedures. The legislation allows members of the public to submit pertinent information to the USPTO concerning particular applications both before and after patent issuance. 
       USPTO Fees. The new law stipulates fees for USPTO patent services and allows the agency to adjust the fees in order to cover its costs. It also requires that fees collected above the amount provided for in the appropriations process be used only for the USPTO. 
       Patent Marking. The America Invents Act limits lawsuits challenging patent owners with false patent marking and allows for virtual, Internet-based marking. 
       Patentable Subject Matter. The America Invents Act prevents patents claiming or encompassing human organisms and limits the availability of patents claiming tax strategies. 
       Best Mode. The statute maintains the requirement that patents describe the best mode, or superior way for practicing the claimed invention, but eliminates failures to do so as a basis for invalidating the patent.
The America Invents Act introduces a number of additional changes to the patent law, including changes to the venue statute, the introduction of supplemental examination, and a clarification of the law of willful infringement.

Although the America Invents Act arguably makes the most significant changes to the U.S. patent statute since the 19th century, the legislation does not reflect all of the issues that were the subject of legislative discussion including the assessment of damages during infringement litigation and the publication of all pending patent applications prior to grant.



Date of Report: September 16, 2011
Number of Pages: 24
Order Number: R42014
Price: $29.95

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Tuesday, September 27, 2011

Federal Research and Development Funding: FY2012


John F. Sargent Jr., Coordinator
Specialist in Science and Technology Policy

President Obama has requested $147.911 billion for research and development (R&D) in FY2012, a $772 million (0.5%) increase from the FY2010 actual R&D funding level of $147.139 billion. Congress will play a central role in defining the nation’s R&D priorities, especially with respect to two overarching issues: the extent to which the federal R&D investment can grow in the context of increased pressure on discretionary spending and how available funding will be prioritized and allocated. Low or negative growth in the overall R&D investment may require movement of resources across disciplines, programs, or agencies to address priorities.

At the time the President’s FY2012 budget was released, action had not been completed on FY2011 full-year funding. In the absence of FY2011 appropriations data, the President’s budget compares his FY2012 request to FY2010 appropriations. On April 15, 2011, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10) was signed into law. Division A of the act provides FY2011 appropriations for the Department of Defense; Division B provides full-year continuing funding for FY2011 for all other agencies at their FY2010 levels unless other provisions in the act specify otherwise. With respect to federal R&D funding overall and to several agencies in particular, it is not possible yet to assess the level of funding provided under the act. Therefore this report compares the President’s FY2012 funding request to FY2011 levels, where possible, and to FY2010 levels elsewhere. This report will be updated as additional information about FY2011 R&D funding becomes available and as Congress acts on FY2012 appropriations bills. Comparison of the President’s request to enacted funding levels is complicated by several factors, including the omission of congressionally directed spending from the President’s FY2012 budget request.

Under the President’s request, six federal agencies would receive 94.8% of total federal R&D spending: the Department of Defense (DOD, 51.8%), Department of Health and Human Services (largely the National Institutes of Health, 21.9%), National Aeronautics and Space Administration (6.6%), Department of Energy (DOE, 8.8%), National Science Foundation (NSF, 4.3%), and Department of Agriculture (1.5%). The Department of Energy would receive the largest R&D dollar increase for FY2012 of any agency, $2.153 billion (19.9%) above its FY2010 funding level. The DOD would receive the largest reduction in R&D funding, $3.969 billion (-4.9%) less than its FY2010 level.

President Obama’s request includes increases in the R&D budgets of the three agencies targeted for doubling over 7 years by the America COMPETES Act, and over 10 years by the America COMPETES Reauthorization Act of 2010 and by President Bush under his American Competitiveness Initiative, as measured using FY2006 funding as the baseline. Although President Obama supported a 10-year doubling in his FY2010 budget, his FY2012 budget is intentionally silent on a timeframe. Under the FY2012 budget request, funding for the DOE Office of Science would increase by $512 million (10.4%) over its FY2010 funding level, the NSF budget would rise by $795 million (11.4%), and the National Institute of Standards and Technology’s core research and facilities construction funding would grow by $111.1 million (17.0%).

For the past five years, federal R&D funding and execution has been affected by mechanisms used to complete the annual appropriations process. Completion of appropriations after the beginning of each fiscal year may cause agencies to delay or cancel some planned R&D and equipment acquisition.



Date of Report:
August 19, 2011
Number of Pages:
54
Order Number: R
41706
Price: $29.95

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Assistance to Firefighters Program: Distribution of Fire Grant Funding


Lennard G. Kruger
Specialist in Science and Technology Policy

The Assistance to Firefighters Grant (AFG) Program, also known as fire grants or the FIRE Act grant program, was established by Title XVII of the FY2001 National Defense Authorization Act (P.L. 106-398). Currently administered by the Federal Emergency Management Agency (FEMA), Department of Homeland Security (DHS), the program provides federal grants directly to local fire departments and unaffiliated Emergency Medical Services (EMS) organizations to help address a variety of equipment, training, and other firefighter-related and EMS needs. A related program is the Staffing for Adequate Fire and Emergency Response Firefighters (SAFER) program, which provides grants for hiring, recruiting, and retaining firefighters.

The fire grant program is now in its 11th year. The Fire Act statute was reauthorized in 2004 (Title XXXVI of P.L. 108-375) and provides overall guidelines on how fire grant money should be distributed. There is no set geographical formula for the distribution of fire grants—fire departments throughout the nation apply, and award decisions are made by a peer panel based on the merits of the application and the needs of the community. However, the law does require that fire grants be distributed to a diverse mix of fire departments, with respect to type of department (paid, volunteer, or combination), geographic location, and type of community served (e.g., urban, suburban, or rural).

The full-year continuing appropriation bill for FY2011, which was signed into law on April 15, 2011 (Department of Defense and Continuing Appropriations Act, 2011, P.L. 112-10) funded AFG at $405 million and SAFER at $405 million for FY2011.

The Administration’s FY2012 budget proposed $670 million for firefighter assistance, including $250 million for AFG and $420 million for SAFER. According to the budget proposal, the request would fund 2,200 firefighter positions and approximately 5,000 AFG grants. The Department of Homeland Security Appropriations, 2012, bill (H.R. 2017) was passed by the House on June 2, 2011. H.R. 2017 provides $670 million for firefighter assistance, including $335 million for AFG and $335 million for SAFER. On September 7, 2011, the Senate Appropriations Committee approved $750 million for firefighter assistance, including $375 million for AFG and $375 million for SAFER.

On March 10, 2011, S. 550, the Fire Grants Authorization Act of 2011 was introduced into the 112th Congress. Previously in the 111th Congress, reauthorization legislation for AFG and SAFER was passed by the House, but was not passed by the Senate. Debate over the reauthorization reflected a competition for funding between career/urban/suburban departments and volunteer/rural departments. The urgency of this debate was heightened by the proposed reduction of overall AFG funding in FY2011, and the economic downturn in many local communities increasingly hard pressed to allocate funding for their local fire departments.

On June 22, 2011, H.R. 2269, the Fire Grants Reauthorization Act of 2011, was introduced into the 112th Congress. H.R. 2269 is virtually identical to House legislation that was passed in the 111th Congress.



Date of Report: September 9, 2011
Number of Pages: 25
Order Number: RL32341
Price: $29.95

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Monday, September 26, 2011

Nanotechnology: A Policy Primer


John F. Sargent Jr.
Specialist in Science and Technology Policy

Nanoscale science, engineering, and technology—commonly referred to collectively as nanotechnology—is believed by many to offer extraordinary economic and societal benefits. Congress has demonstrated continuing support for nanotechnology and has directed its attention primarily to three topics that may affect the realization of this hoped for potential: federal research and development (R&D) in nanotechnology; U.S. competitiveness; and environmental, health, and safety (EHS) concerns. This report provides an overview of these topics—which are discussed in more detail in other CRS reports—and two others: nanomanufacturing and public understanding of and attitudes toward nanotechnology.

The development of this emerging field has been fostered by significant and sustained public investments in nanotechnology R&D. Nanotechnology R&D is directed toward the understanding and control of matter at dimensions of roughly 1 to 100 nanometers. At this size, the properties of matter can differ in fundamental and potentially useful ways from the properties of individual atoms and molecules and of bulk matter. Since the launch of the National Nanotechnology Initiative (NNI) in 2000 through FY2011, Congress has appropriated approximately $14.4 billion for nanotechnology R&D, including approximately $1.8 billion in FY2011 funding under the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10). President Obama has requested $2.1 billion in NNI funding for FY2012. More than 60 nations have established similar programs. In 2006 alone, total global public R&D investments reached an estimated $6.4 billion, complemented by an estimated private sector investment of $6.0 billion. Data on economic outputs used to assess competitiveness in mature technologies and industries, such as revenues and market share, are not available for assessing nanotechnology. Alternatively, data on inputs (e.g., R&D expenditures) and non-financial outputs (e.g., scientific papers, patents) may provide insight into the current U.S. position and serve as bellwethers of future competitiveness. By these criteria, the United States appears to be the overall global leader in nanotechnology, though some believe the U.S. lead may not be as large as it was for previous emerging technologies.

Some research has raised concerns about the safety of nanoscale materials. There is general agreement that more information on EHS implications is needed to protect the public and the environment; to assess and manage risks; and to create a regulatory environment that fosters prudent investment in nanotechnology-related innovation. Nanomanufacturing—the bridge between nanoscience and nanotechnology products—may require the development of new technologies, tools, instruments, measurement science, and standards to enable safe, effective, and affordable commercial-scale production of nanotechnology products. Public understanding and attitudes may also affect the environment for R&D, regulation, and market acceptance of products incorporating nanotechnology.

In 2003, Congress enacted the 21st Century Nanotechnology Research and Development Act providing a legislative foundation for some of the activities of the NNI, addressing concerns, establishing programs, assigning agency responsibilities, and setting authorization levels. Legislation was introduced in the 110th Congress and 111th Congress to amend and reauthorize the act.



Date of Report: September 2, 2011
Number of Pages: 16
Order Number: RL34511
Price: $29.95

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Friday, September 23, 2011

Staffing for Adequate Fire and Emergency Response: The SAFER Grant Program


Lennard G. Kruger
Specialist in Science and Technology Policy

In response to concerns over the adequacy of firefighter staffing, the Staffing for Adequate Fire and Emergency Response Act—popularly called the “SAFER Act”—was enacted by the 108th Congress as Section 1057 of the FY2004 National Defense Authorization Act (P.L. 108-136). The SAFER Act authorizes grants to career, volunteer, and combination local fire departments for the purpose of increasing the number of firefighters to help communities meet industry-minimum standards and attain 24-hour staffing to provide adequate protection from fire and fire-related hazards. Also authorized are grants to volunteer fire departments for recruitment and retention of volunteers. The SAFER grant program is authorized through FY2010.

With the economic turndown adversely affecting budgets of local governments, concerns have arisen that modifications to the SAFER statute may be necessary to enable fire departments to more effectively participate in the program. The American Recovery and Reinvestment Act of 2009 (P.L. 111-5) included a provision (§603) that waived the matching requirements for SAFER grants awarded in FY2009 and FY2010. The FY2009 Supplemental Appropriations Act (P.L. 111- 32) included a provision authorizing the Secretary of Homeland Security to waive further limitations and restrictions in the SAFER statute for FY2009 and FY2010.

The Department of Defense and Continuing Appropriations Act, 2011 (P.L. 112-10) funded SAFER at $405 million. The law also contained language that removes cost-share requirements and allows SAFER grants to be used to rehire laid-off firefighters and fill positions eliminated through attrition. However, P.L. 112-10 did not remove the requirement that SAFER grants fund a firefighter position for four years, with the fifth year funded wholly by the grant recipient. The law also did not waive the cap of $100,000 per firefighter hired by a SAFER grant.

The Administration’s FY2012 budget proposed $670 million for firefighter assistance, including $420 million for SAFER, which according to the FY2012 budget proposal, would fund 2,200 firefighter positions. The Department of Homeland Security Appropriations, 2012, bill (H.R. 2017) was passed by the House on June 2, 2011. The House bill, as amended on the House floor, would provide $335 million for SAFER and would allow FY2012 grants to be used to rehire laidoff firefighters and fill positions eliminated through attrition, remove cost-share requirements, allow grants to extend longer than the current five-year duration, and permit the amount of funding per position at levels exceeding the current limit of $100,000.

On September 7, 2011, the Senate Appropriations Committee approved $750 million for firefighter assistance in FY2012 (S.Rept. 112-74), which is a 12% increase over the House-passed level. The total includes $375 million for SAFER and $375 million for AFG. As does the House bill, the Senate bill also waives or prohibits SAFER requirements in FY2012. The Administration’s American Jobs Act provides $1 billion in additional FY2012 appropriations for SAFER. S. 1549 would give DHS the authority to waive SAFER limitations and restrictions.

Concern over local fire departments’ budgetary problems has framed debate over the SAFER reauthorization, which is included in S. 550/H.R. 2269, the Fire Grants Authorization Act of 2011. Previously in the 111th Congress, reauthorization legislation for SAFER was passed by the House, but was not passed by the Senate. As part of the reauthorization debate, Congress may consider whether some SAFER rules and restrictions governing the hiring grants should be permanently eliminated or altered in order to make it economically feasible for more fire departments to participate in the program.



Date of Report: September 15, 2011
Number of Pages: 15
Order Number: RL33375
Price: $29.95

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