PUBLIC LAW 106-113—APPENDIX I 113 STAT. 1501A-555 SEC. 4204. STUDY ON ALTERNATIVE FEE STRUCTURES. The Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office shall conduct a study of alternative fee structures that could be adopted by the United States Patent and Trademark Office to encourage maximum participation by the inventor community in the United States. The Director shall submit such study to the Committees on the Judiciary of the House of l^epresentatives and the Senate not later than 1 year after the date of the enactment of this Act. SEC. 4205. PATENT AND TRADEMARK OFFICE FUNDING. Section 42(c) of title 35, United States Code, is amended in the second sentence— (1) by striking "Fees available" and inserting "All fees available"; and (2) by striking "may and inserting "shall". SEC. 4206. EFFECTIVE DATE. (a) IN GENERAL. —Except as provided in subsection (b), the amendments made by this subtitle shall take: effect on the date of the enactment of this Act. (b) SECTION 4202.—The amendments made by section 4202 of this subtitle shall take effect 30 days after the date of the enactment of this Act. Subtitle C—First Inventor Defense SEC. 4301. SHORT TITLE. This subtitle may be cited as the "First Inventor Defense Act of 1999". SEC. 4302. DEFENSE TO PATENT INFRINGEMENT BASED ON EARLIER INVENTOR. (a) DEFENSE. — Chapter 28 of title 35, United States Code, is amended by adding at the end the following new section:
- §273. Defense to infringement based on earlier inventor
"(a) DEFINITIONS.— For purposes of this section— "(1) the terms 'commercially used' and 'commercial use' mean use of a method in the United States, so long as such use is 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, whether or not the subject matter at issue is accessible to or otherwise known to the public, except that the 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 'commercially used' and in 'commercial use' during such regulatory review period; "(2) in the case of activities performed by a nonprofit research laboratory, or nonprofit entity such as a university, research center, or hospital, a use for which the public is the intended beneficiary shall be considered to be a use described in paragraph (1), except that the use—
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