IB 

Union Calendar No. 200 

113TH CONGRESS 

1ST SESSION H. R. 3309 

[Report No. 113–279] 

To amend title 35, United States Code, and the Leahy-Smith America Invents 

Act to make improvements and technical corrections, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 23, 2013 

Mr. GOODLATTE (for himself, Mr. DEFAZIO, Mr. COBLE, Ms. LOFGREN, Mr. 

SMITH of Texas, Ms. ESHOO, Mr. CHAFFETZ, Mr. BACHUS, Mr. MARINO, 

Mr. FARENTHOLD, and Mr. HOLDING) introduced the following bill; 

which was referred to the Committee on the Judiciary 

DECEMBER 2, 2013 

Additional sponsors: Mr. CHABOT, Ms. MCCOLLUM, Mr. HUFFMAN, Mr. 

HONDA, Mr. JOHNSON of Ohio, and Mr. LARSEN of Washington 

DECEMBER 2, 2013 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on October 23, 2013] 


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A BILL 

To amend title 35, United States Code, and the LeahySmith America Invents Act to make improvements and 

technical corrections, and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the ‘‘In5 novation Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Definitions. 

Sec. 3. Patent infringement actions. 

Sec. 4. Transparency of patent ownership. 

Sec. 5. Customer-suit exception. 

Sec. 6. Procedures and practices to implement and recommendations to the Judicial Conference. 

Sec. 7. Small business education, outreach, and information access. 

Sec. 8. Studies on patent transactions, quality, and examination. 

Sec. 9. Improvements and technical corrections to the Leahy-Smith America Invents Act. 

Sec. 10. Effective date. 

8 SEC. 2. DEFINITIONS. 

9 In this Act: 

10 (1) DIRECTOR.—The term ‘‘Director’’ means the 

11 Under Secretary of Commerce for Intellectual Prop12 erty and Director of the United States Patent and 

13 Trademark Office. 

14 (2) OFFICE.—The term ‘‘Office’’ means the 

15 United States Patent and Trademark Office. 

16 SEC. 3. PATENT INFRINGEMENT ACTIONS. 

17 (a) PLEADING REQUIREMENTS.— 

18 (1) AMENDMENT.—Chapter 29 of title 35, United 

19 States Code, is amended by inserting after section 281 

20 the following: 


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1 ‘‘§ 281A. Pleading requirements for patent infringe2 ment actions 

3 ‘‘(a) PLEADING REQUIREMENTS.—Except as provided 

4 in subsection (b), in a civil action in which a party asserts 

5 a claim for relief arising under any Act of Congress relating 

6 to patents, a party alleging infringement shall include in 

7 the initial complaint, counterclaim, or cross-claim for pat8 ent infringement, unless the information is not reasonably 

9 accessible to such party, the following: 

10 ‘‘(1) An identification of each patent allegedly 

11 infringed. 

12 ‘‘(2) An identification of each claim of each pat13 ent identified under paragraph (1) that is allegedly 

14 infringed. 

15 ‘‘(3) For each claim identified under paragraph 

16 (2), an identification of each accused process, ma17 chine, manufacture, or composition of matter (re18 ferred to in this section as an ‘accused instrumen19 tality’) alleged to infringe the claim. 

20 ‘‘(4) For each accused instrumentality identified 

21 under paragraph (3), an identification with particu22 larity, if known, of— 

23 ‘‘(A) the name or model number of each ac24 cused instrumentality; or 

25 ‘‘(B) if there is no name or model number, 

26 a description of each accused instrumentality. 


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1 ‘‘(5) For each accused instrumentality identified 

2 under paragraph (3), a clear and concise statement 

3 of— 

4 ‘‘(A) where each element of each claim iden5 tified under paragraph (2) is found within the 

6 accused instrumentality; and 

7 ‘‘(B) with detailed specificity, how each 

8 limitation of each claim identified under para9 graph (2) is met by the accused instrumentality. 

10 ‘‘(6) For each claim of indirect infringement, a 

11 description of the acts of the alleged indirect infringer 

12 that contribute to or are inducing the direct infringe13 ment. 

14 ‘‘(7) A description of the authority of the party 

15 alleging infringement to assert each patent identified 

16 under paragraph (1) and of the grounds for the 

17 court’s jurisdiction. 

18 ‘‘(8) A clear and concise description of the prin19 cipal business, if any, of the party alleging infringe20 ment. 

21 ‘‘(9) A list of each complaint filed, of which the 

22 party alleging infringement has knowledge, that as23 serts or asserted any of the patents identified under 

24 paragraph (1). 


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1 ‘‘(10) For each patent identified under para2 graph (1), whether a standard-setting body has spe3 cifically declared such patent to be essential, poten4 tially essential, or having potential to become essen5 tial to that standard-setting body, and whether the 

6 United States Government or a foreign government 

7 has imposed specific licensing requirements with re8 spect to such patent. 

9 ‘‘(b) INFORMATION NOT READILY ACCESSIBLE.—If in10 formation required to be disclosed under subsection (a) is 

11 not readily accessible to a party, that information may in12 stead be generally described, along with an explanation of 

13 why such undisclosed information was not readily acces14 sible, and of any efforts made by such party to access such 

15 information. 

16 ‘‘(c) CONFIDENTIAL INFORMATION.—A party required 

17 to disclose information described under subsection (a) may 

18 file, under seal, information believed to be confidential, with 

19 a motion setting forth good cause for such sealing. If such 

20 motion is denied by the court, the party may seek to file 

21 an amended complaint. 

22 ‘‘(d) EXEMPTION.—A civil action that includes a 

23 claim for relief arising under section 271(e)(2) shall not 

24 be subject to the requirements of subsection (a).’’. 


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1 (2) CONFORMING AMENDMENT.—The table of sec2 tions for chapter 29 of title 35, United States Code, 

3 is amended by inserting after the item relating to sec4 tion 281 the following new item: 

‘‘281A. Pleading requirements for patent infringement actions.’’. 

5 (b) FEES AND OTHER EXPENSES.— 

6 (1) AMENDMENT.—Section 285 of title 35, 

7 United States Code, is amended to read as follows: 

8 ‘‘§ 285. Fees and other expenses 

9 ‘‘(a) AWARD.—The court shall award, to a prevailing 

10 party, reasonable fees and other expenses incurred by that 

11 party in connection with a civil action in which any party 

12 asserts a claim for relief arising under any Act of Congress 

13 relating to patents, unless the court finds that the position 

14 and conduct of the nonprevailing party or parties were rea15 sonably justified in law and fact or that special cir16 cumstances (such as severe economic hardship to a named 

17 inventor) make an award unjust. 

18 ‘‘(b) CERTIFICATION AND RECOVERY.—Upon motion 

19 of any party to the action, the court shall require another 

20 party to the action to certify whether or not the other party 

21 will be able to pay an award of fees and other expenses 

22 if such an award is made under subsection (a). If a nonpre23 vailing party is unable to pay an award that is made 

24 against it under subsection (a), the court may make a party 


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1 that has been joined under section 299(d) with respect to 

2 such party liable for the unsatisfied portion of the award. 

3 ‘‘(c) COVENANT NOT TO SUE.—A party to a civil ac4 tion that asserts a claim for relief arising under any Act 

5 of Congress relating to patents against another party, and 

6 that subsequently unilaterally extends to such other party 

7 a covenant not to sue for infringement with respect to the 

8 patent or patents at issue, shall be deemed to be a nonpre9 vailing party (and the other party the prevailing party) 

10 for purposes of this section, unless the party asserting such 

11 claim would have been entitled, at the time that such cov12 enant was extended, to voluntarily dismiss the action or 

13 claim without a court order under Rule 41 of the Federal 

14 Rules of Civil Procedure.’’. 

15 (2) CONFORMING AMENDMENT AND AMEND16 MENT.— 

17 (A) CONFORMING AMENDMENT.—The item 

18 relating to section 285 of the table of sections for 

19 chapter 29 of title 35, United States Code, is 

20 amended to read as follows: 

‘‘285. Fees and other expenses.’’. 

21 (B) AMENDMENT.—Section 273 of title 35, 

22 United States Code, is amended by striking sub23 sections (f) and (g). 

24 (3) EFFECTIVE DATE.—The amendments made 

25 by this subsection shall take effect on the date of the 


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1 enactment of this Act and shall apply to any action 

2 for which a complaint is filed on or after the first day 

3 of the 6-month period ending on that effective date. 

4 (c) JOINDER OF INTERESTED PARTIES.—Section 299 

5 of title 35, United States Code, is amended by adding at 

6 the end the following new subsection: 

7 ‘‘(d) JOINDER OF INTERESTED PARTIES.— 

8 ‘‘(1) JOINDER.—In a civil action arising under 

9 any Act of Congress relating to patents in which fees 

10 and other expenses have been awarded under section 

11 285 to a prevailing party defending against an alle12 gation of infringement of a patent claim, and in 

13 which the nonprevailing party alleging infringement 

14 is unable to pay the award of fees and other expenses, 

15 the court shall grant a motion by the prevailing party 

16 to join an interested party if such prevailing party 

17 shows that the nonprevailing party has no substantial 

18 interest in the subject matter at issue other than as19 serting such patent claim in litigation. 

20 ‘‘(2) LIMITATION ON JOINDER.— 

21 ‘‘(A) DISCRETIONARY DENIAL OF MOTION.— 

22 The court may deny a motion to join an inter23 ested party under paragraph (1) if— 

24 ‘‘(i) the interested party is not subject 

25 to service of process; or 


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1 ‘‘(ii) joinder under paragraph (1) 

2 would deprive the court of subject matter ju3 risdiction or make venue improper. 

4 ‘‘(B) REQUIRED DENIAL OF MOTION.—The 

5 court shall deny a motion to join an interested 

6 party under paragraph (1) if— 

7 ‘‘(i) the interested party did not timely 

8 receive the notice required by paragraph 

9 (3); or 

10 ‘‘(ii) within 30 days after receiving the 

11 notice required by paragraph (3), the inter12 ested party renounces, in writing and with 

13 notice to the court and the parties to the ac14 tion, any ownership, right, or direct finan15 cial interest (as described in paragraph (4)) 

16 that the interested party has in the patent 

17 or patents at issue. 

18 ‘‘(3) NOTICE REQUIREMENT.—An interested 

19 party may not be joined under paragraph (1) unless 

20 it has been provided actual notice, within 30 days 

21 after the date on which it has been identified in the 

22 initial disclosure provided under section 290(b), that 

23 it has been so identified and that such party may 

24 therefore be an interested party subject to joinder 

25 under this subsection. Such notice shall be provided 


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1 by the party who subsequently moves to join the inter2 ested party under paragraph (1), and shall include 

3 language that— 

4 ‘‘(A) identifies the action, the parties there5 to, the patent or patents at issue, and the plead6 ing or other paper that identified the party 

7 under section 290(b); and 

8 ‘‘(B) informs the party that it may be 

9 joined in the action and made subject to paying 

10 an award of fees and other expenses under sec11 tion 285(b) if— 

12 ‘‘(i) fees and other expenses are award13 ed in the action against the party alleging 

14 infringement of the patent or patents at 

15 issue under section 285(a); 

16 ‘‘(ii) the party alleging infringement is 

17 unable to pay the award of fees and other 

18 expenses; 

19 ‘‘(iii) the party receiving notice under 

20 this paragraph is determined by the court 

21 to be an interested party; and 

22 ‘‘(iv) the party receiving notice under 

23 this paragraph has not, within 30 days 

24 after receiving such notice, renounced in 

25 writing, and with notice to the court and 


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1 the parties to the action, any ownership, 

2 right, or direct financial interest (as de3 scribed in paragraph (4)) that the interested 

4 party has in the patent or patents at issue. 

5 ‘‘(4) INTERESTED PARTY DEFINED.—In this sub6 section, the term ‘interested party’ means a person, 

7 other than the party alleging infringement, that— 

8 ‘‘(A) is an assignee of the patent or patents 

9 at issue; 

10 ‘‘(B) has a right, including a contingent 

11 right, to enforce or sublicense the patent or pat12 ents at issue; or 

13 ‘‘(C) has a direct financial interest in the 

14 patent or patents at issue, including the right to 

15 any part of an award of damages or any part 

16 of licensing revenue, except that a person with a 

17 direct financial interest does not include— 

18 ‘‘(i) an attorney or law firm providing 

19 legal representation in the civil action de20 scribed in paragraph (1) if the sole basis for 

21 the financial interest of the attorney or law 

22 firm in the patent or patents at issue arises 

23 from the attorney or law firm’s receipt of 

24 compensation reasonably related to the pro25 vision of the legal representation; or 


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1 ‘‘(ii) a person whose sole financial in2 terest in the patent or patents at issue is 

3 ownership of an equity interest in the party 

4 alleging infringement, unless such person 

5 also has the right or ability to influence, di6 rect, or control the civil action.’’. 

7 (d) DISCOVERY LIMITS.— 

8 (1) AMENDMENT.—Chapter 29 of title 35, United 

9 States Code, is amended by adding at the end the fol10 lowing new section: 

11 ‘‘§ 299A. Discovery in patent infringement action 

12 ‘‘(a) DISCOVERY IN PATENT INFRINGEMENT ACTION.— 

13 Except as provided in subsection (b), in a civil action aris14 ing under any Act of Congress relating to patents, if the 

15 court determines that a ruling relating to the construction 

16 of terms used in a patent claim asserted in the complaint 

17 is required, discovery shall be limited, until such ruling is 

18 issued, to information necessary for the court to determine 

19 the meaning of the terms used in the patent claim, includ20 ing any interpretation of those terms used to support the 

21 claim of infringement. 

22 ‘‘(b) DISCRETION TO EXPAND SCOPE OF DIS23 COVERY.— 

24 ‘‘(1) TIMELY RESOLUTION OF ACTIONS.—If, 

25 under any provision of Federal law (including the 


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1 amendments made by the Drug Price Competition 

2 and Patent Term Restoration Act of 1984 (Public 

3 Law 98–417)), resolution within a specified period of 

4 time of a civil action arising under any Act of Con5 gress relating to patents will necessarily affect the 

6 rights of a party with respect to the patent, the court 

7 shall permit discovery, in addition to the discovery 

8 authorized under subsection (a), before the ruling de9 scribed in subsection (a) is issued as necessary to en10 sure timely resolution of the action. 

11 ‘‘(2) RESOLUTION OF MOTIONS.—When necessary 

12 to resolve a motion properly raised by a party before 

13 a ruling relating to the construction of terms de14 scribed in subsection (a) is issued, the court may 

15 allow limited discovery in addition to the discovery 

16 authorized under subsection (a) as necessary to resolve 

17 the motion. 

18 ‘‘(3) SPECIAL CIRCUMSTANCES.—In special cir19 cumstances that would make denial of discovery a 

20 manifest injustice, the court may permit discovery, in 

21 addition to the discovery authorized under subsection 

22 (a), as necessary to prevent the manifest injustice.’’. 

23 (2) CONFORMING AMENDMENT.—The table of sec24 tions for chapter 29 of title 35, United States Code, 


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1 is amended by adding at the end the following new 

2 item: 

‘‘299A. Discovery in patent infringement action.’’. 

3 (e) SENSE OF CONGRESS.—It is the sense of Congress 

4 that it is an abuse of the patent system and against public 

5 policy for a party to send out purposely evasive demand 

6 letters to end users alleging patent infringement. Demand 

7 letters sent should, at the least, include basic information 

8 about the patent in question, what is being infringed, and 

9 how it is being infringed. Any actions or litigation that 

10 stem from these types of purposely evasive demand letters 

11 to end users should be considered a fraudulent or deceptive 

12 practice and an exceptional circumstance when considering 

13 whether the litigation is abusive. 

14 (f) DEMAND LETTERS.—Section 284 of title 35, United 

15 States Code, is amended— 

16 (1) in the first undesignated paragraph, by 

17 striking ‘‘Upon finding’’ and inserting ‘‘(a) IN GEN18 ERAL.—Upon finding’’; 

19 (2) in the second undesignated paragraph, by 

20 striking ‘‘When the damages’’ and inserting ‘‘(b) AS21 SESSMENT BY COURT; TREBLE DAMAGES.—When the 

22 damages’’; 

23 (3) by inserting after subsection (b), as des24 ignated by paragraph (2) of this subsection, the fol25 lowing: 


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1 ‘‘(c) WILLFUL INFRINGEMENT.—A claimant seeking to 

2 establish willful infringement may not rely on evidence of 

3 pre-suit notification of infringement unless that notifica4 tion identifies with particularity the asserted patent, iden5 tifies the product or process accused, and explains with par6 ticularity, to the extent possible following a reasonable in7 vestigation or inquiry, how the product or process infringes 

8 one or more claims of the patent.’’; and 

9 (4) in the last undesignated paragraph, by strik10 ing ‘‘The court’’ and inserting ‘‘(d) EXPERT TESTI11 MONY.—The court’’. 

12 (g) EFFECTIVE DATE.—Except as otherwise provided 

13 in this section, the amendments made by this section shall 

14 take effect on the date of the enactment of this Act and shall 

15 apply to any action for which a complaint is filed on or 

16 after that date. 

17 SEC. 4. TRANSPARENCY OF PATENT OWNERSHIP. 

18 (a) AMENDMENTS.—Section 290 of title 35, United 

19 States Code, is amended— 

20 (1) in the heading, by striking ‘‘suits’’ and in21 serting ‘‘suits; disclosure of interests’’; 

22 (2) by striking ‘‘The clerks’’ and inserting ‘‘(a) 

23 NOTICE OF PATENT SUITS.—The clerks’’; and 

24 (3) by adding at the end the following new sub25 sections: 


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1 ‘‘(b) INITIAL DISCLOSURE.— 

2 ‘‘(1) IN GENERAL.—Except as provided in para3 graph (2), upon the filing of an initial complaint for 

4 patent infringement, the plaintiff shall disclose to the 

5 Patent and Trademark Office, the court, and each ad6 verse party the identity of each of the following: 

7 ‘‘(A) The assignee of the patent or patents 

8 at issue. 

9 ‘‘(B) Any entity with a right to sublicense 

10 or enforce the patent or patents at issue. 

11 ‘‘(C) Any entity, other than the plaintiff, 

12 that the plaintiff knows to have a financial in13 terest in the patent or patents at issue or the 

14 plaintiff. 

15 ‘‘(D) The ultimate parent entity of any as16 signee identified under subparagraph (A) and 

17 any entity identified under subparagraph (B) or 

18 (C). 

19 ‘‘(2) EXEMPTION.—The requirements of para20 graph (1) shall not apply with respect to a civil ac21 tion filed under subsection (a) that includes a cause 

22 of action described under section 271(e)(2). 

23 ‘‘(c) DISCLOSURE COMPLIANCE.— 

24 ‘‘(1) PUBLICLY TRADED.—For purposes of sub25 section (b)(1)(C), if the financial interest is held by 


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1 a corporation traded on a public stock exchange, an 

2 identification of the name of the corporation and the 

3 public exchange listing shall satisfy the disclosure re4 quirement. 

5 ‘‘(2) NOT PUBLICLY TRADED.—For purposes of 

6 subsection (b)(1)(C), if the financial interest is not 

7 held by a publicly traded corporation, the disclosure 

8 shall satisfy the disclosure requirement if the informa9 tion identifies— 

10 ‘‘(A) in the case of a partnership, the name 

11 of the partnership and the name and correspond12 ence address of each partner or other entity that 

13 holds more than a 5-percent share of that part14 nership; 

15 ‘‘(B) in the case of a corporation, the name 

16 of the corporation, the location of incorporation, 

17 the address of the principal place of business, 

18 and the name of each officer of the corporation; 

19 and 

20 ‘‘(C) for each individual, the name and cor21 respondence address of that individual. 

22 ‘‘(d) ONGOING DUTY OF DISCLOSURE TO THE PATENT

23 AND TRADEMARK OFFICE.— 

24 ‘‘(1) IN GENERAL.—A plaintiff required to sub25 mit information under subsection (b) or a subsequent 


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1 owner of the patent or patents at issue shall, not later 

2 than 90 days after any change in the assignee of the 

3 patent or patents at issue or an entity described 

4 under subparagraph (B) or (D) of subsection (b)(1), 

5 submit to the Patent and Trademark Office the up6 dated identification of such assignee or entity. 

7 ‘‘(2) FAILURE TO COMPLY.—With respect to a 

8 patent for which the requirement of paragraph (1) 

9 has not been met— 

10 ‘‘(A) the plaintiff or subsequent owner shall 

11 not be entitled to recover reasonable fees and 

12 other expenses under section 285 or increased 

13 damages under section 284 with respect to in14 fringing activities taking place during any pe15 riod of noncompliance with paragraph (1), un16 less the denial of such damages or fees would be 

17 manifestly unjust; and 

18 ‘‘(B) the court shall award to a prevailing 

19 party accused of infringement reasonable fees 

20 and other expenses under section 285 that are in21 curred to discover the updated assignee or entity 

22 described under paragraph (1), unless such sanc23 tions would be unjust. 

24 ‘‘(e) DEFINITIONS.—In this section: 


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1 ‘‘(1) FINANCIAL INTEREST.—The term ‘financial 

2 interest’— 

3 ‘‘(A) means— 

4 ‘‘(i) with regard to a patent or patents, 

5 the right of a person to receive proceeds re6 lated to the assertion of the patent or pat7 ents, including a fixed or variable portion 

8 of such proceeds; and 

9 ‘‘(ii) with regard to the plaintiff, direct 

10 or indirect ownership or control by a person 

11 of more than 5 percent of such plaintiff; 

12 and 

13 ‘‘(B) does not mean— 

14 ‘‘(i) ownership of shares or other inter15 ests in a mutual or common investment 

16 fund, unless the owner of such interest par17 ticipates in the management of such fund; 

18 or 

19 ‘‘(ii) the proprietary interest of a pol20 icyholder in a mutual insurance company 

21 or of a depositor in a mutual savings asso22 ciation, or a similar proprietary interest, 

23 unless the outcome of the proceeding could 

24 substantially affect the value of such inter25 est. 


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1 ‘‘(2) PROCEEDING.—The term ‘proceeding’ 

2 means all stages of a civil action, including pretrial 

3 and trial proceedings and appellate review. 

4 ‘‘(3) ULTIMATE PARENT ENTITY.— 

5 ‘‘(A) IN GENERAL.—Except as provided in 

6 subparagraph (B), the term ‘ultimate parent en7 tity’ has the meaning given such term in section 

8 801.1(a)(3) of title 16, Code of Federal Regula9 tions, or any successor regulation. 

10 ‘‘(B) MODIFICATION OF DEFINITION.—The 

11 Director may modify the definition of ‘ultimate 

12 parent entity’ by regulation.’’. 

13 (b) TECHNICAL AND CONFORMING AMENDMENT.—The 

14 item relating to section 290 in the table of sections for chap15 ter 29 of title 35, United States Code, is amended to read 

16 as follows: 

‘‘290. Notice of patent suits; disclosure of interests.’’. 

17 (c) REGULATIONS.—The Director may promulgate 

18 such regulations as are necessary to establish a registration 

19 fee in an amount sufficient to recover the estimated costs 

20 of administering subsections (b) through (e) of section 290 

21 of title 35, United States Code, as added by subsection (a), 

22 to facilitate the collection and maintenance of the informa23 tion required by such subsections, and to ensure the timely 

24 disclosure of such information to the public. 


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1 (d) EFFECTIVE DATE.—The amendments made by this 

2 section shall take effect upon the expiration of the 6-month 

3 period beginning on the date of the enactment of this Act 

4 and shall apply to any action for which a complaint is 

5 filed on or after such effective date. 

6 SEC. 5. CUSTOMER-SUIT EXCEPTION. 

7 (a) AMENDMENT.—Section 296 of title 35, United 

8 States Code, is amended to read as follows: 

9 ‘‘§ 296. Stay of action against customer 

10 ‘‘(a) STAY OF ACTION AGAINST CUSTOMER.—Except 

11 as provided in subsection (d), in any civil action arising 

12 under any Act of Congress relating to patents, the court 

13 shall grant a motion to stay at least the portion of the ac14 tion against a covered customer related to infringement of 

15 a patent involving a covered product or process if the fol16 lowing requirements are met: 

17 ‘‘(1) The covered manufacturer and the covered 

18 customer consent in writing to the stay. 

19 ‘‘(2) The covered manufacturer is a party to the 

20 action or to a separate action involving the same pat21 ent or patents related to the same covered product or 

22 process. 

23 ‘‘(3) The covered customer agrees to be bound by 

24 any issues that the covered customer has in common 

25 with the covered manufacturer and are finally deVerDate Mar 15 2010 21:53 Dec 02, 2013 Jkt 039200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6203 E:\BILLS\H3309.RH H3309

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1 cided as to the covered manufacturer in an action de2 scribed in paragraph (2). 

3 ‘‘(4) The motion is filed after the first pleading 

4 in the action but not later than the later of— 

5 ‘‘(A) the 120th day after the date on which 

6 the first pleading in the action is served that 

7 specifically identifies the covered product or 

8 process as a basis for the covered customer’s al9 leged infringement of the patent and that specifi10 cally identifies how the covered product or proc11 ess is alleged to infringe the patent; or 

12 ‘‘(B) the date on which the first scheduling 

13 order in the case is entered. 

14 ‘‘(b) APPLICABILITY OF STAY.—A stay issued under 

15 subsection (a) shall apply only to the patents, products, sys16 tems, or components accused of infringement in the action. 

17 ‘‘(c) LIFT OF STAY.— 

18 ‘‘(1) IN GENERAL.—A stay entered under this 

19 section may be lifted upon grant of a motion based 

20 on a showing that— 

21 ‘‘(A) the action involving the covered manu22 facturer will not resolve a major issue in suit 

23 against the covered customer; or 


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1 ‘‘(B) the stay unreasonably prejudices and 

2 would be manifestly unjust to the party seeking 

3 to lift the stay. 

4 ‘‘(2) SEPARATE MANUFACTURER ACTION IN5 VOLVED.—In the case of a stay entered based on the 

6 participation of the covered manufacturer in a sepa7 rate action involving the same patent or patents re8 lated to the same covered product or process, a motion 

9 under this subsection may only be made if the court 

10 in such separate action determines the showing re11 quired under paragraph (1) has been met. 

12 ‘‘(d) EXEMPTION.—This section shall not apply to an 

13 action that includes a cause of action described under sec14 tion 271(e)(2). 

15 ‘‘(e) CONSENT JUDGMENT.—If, following the grant of 

16 a motion to stay under this section, the covered manufac17 turer seeks or consents to entry of a consent judgment relat18 ing to one or more of the common issues that gave rise to 

19 the stay, or declines to prosecute through appeal a final de20 cision as to one or more of the common issues that gave 

21 rise to the stay, the court may, upon grant of a motion, 

22 determine that such consent judgment or unappealed final 

23 decision shall not be binding on the covered customer with 

24 respect to one or more of such common issues based on a 

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1 dice and be manifestly unjust to the covered customer in 

2 light of the circumstances of the case. 

3 ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this sec4 tion shall be construed to limit the ability of a court to 

5 grant any stay, expand any stay granted under this section, 

6 or grant any motion to intervene, if otherwise permitted 

7 by law. 

8 ‘‘(g) DEFINITIONS.—In this section: 

9 ‘‘(1) COVERED CUSTOMER.—The term ‘covered 

10 customer’ means a party accused of infringing a pat11 ent or patents in dispute based on a covered product 

12 or process. 

13 ‘‘(2) COVERED MANUFACTURER.—The term ‘cov14 ered manufacturer’ means a person that manufactures 

15 or supplies, or causes the manufacture or supply of, 

16 a covered product or process or a relevant part there17 of. 

18 ‘‘(3) COVERED PRODUCT OR PROCESS.—The 

19 term ‘covered product or process’ means a product, 

20 process, system, service, component, material, or ap21 paratus, or relevant part thereof, that— 

22 ‘‘(A) is alleged to infringe the patent or pat23 ents in dispute; or 

24 ‘‘(B) implements a process alleged to in25 fringe the patent or patents in dispute.’’. 


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1 (b) CONFORMING AMENDMENT.—The table of sections 

2 for chapter 29 of title 35, United States Code, is amended 

3 by striking the item relating to section 296 and inserting 

4 the following: 

‘‘296. Stay of action against customer.’’. 

5 (c) EFFECTIVE DATE.—The amendments made by this 

6 section shall take effect on the date of the enactment of this 

7 Act and shall apply to any action for which a complaint 

8 is filed on or after the first day of the 30-day period that 

9 ends on that date. 

10 SEC. 6. PROCEDURES AND PRACTICES TO IMPLEMENT REC11 OMMENDATIONS OF THE JUDICIAL CON12 FERENCE. 

13 (a) JUDICIAL CONFERENCE RULES AND PROCEDURES

14 ON DISCOVERY BURDENS AND COSTS.— 

15 (1) RULES AND PROCEDURES.—The Judicial 

16 Conference of the United States, using existing re17 sources, shall develop rules and procedures to imple18 ment the issues and proposals described in paragraph 

19 (2) to address the asymmetries in discovery burdens 

20 and costs in any civil action arising under any Act 

21 of Congress relating to patents. Such rules and proce22 dures shall include how and when payment for docu23 ment discovery in addition to the discovery of core 

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1 pacity before permitting document discovery in addi2 tion to the discovery of core documentary evidence. 

3 (2) RULES AND PROCEDURES TO BE CONSID4 ERED.—The rules and procedures required under 

5 paragraph (1) should address each of the following 

6 issues and proposals: 

7 (A) DISCOVERY OF CORE DOCUMENTARY

8 EVIDENCE.—Whether and to what extent each 

9 party to the action is entitled to receive core doc10 umentary evidence and shall be responsible for 

11 the costs of producing core documentary evidence 

12 within the possession or control of each such 

13 party, and whether and to what extent each 

14 party to the action may seek nondocumentary 

15 discovery as otherwise provided in the Federal 

16 Rules of Civil Procedure. 

17 (B) ELECTRONIC COMMUNICATION.—If the 

18 parties determine that the discovery of electronic 

19 communication is appropriate, whether such dis20 covery shall occur after the parties have ex21 changed initial disclosures and core documentary 

22 evidence and whether such discovery shall be in 

23 accordance with the following: 

24 (i) Any request for the production of 

25 electronic communication shall be specific 


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1 and may not be a general request for the 

2 production of information relating to a 

3 product or business. 

4 (ii) Each request shall identify the cus5 todian of the information requested, the 

6 search terms, and a time frame. The parties 

7 shall cooperate to identify the proper 

8 custodians, the proper search terms, and the 

9 proper time frame. 

10 (iii) A party may not submit produc11 tion requests to more than 5 custodians, un12 less the parties jointly agree to modify the 

13 number of production requests without leave 

14 of the court. 

15 (iv) The court may consider contested 

16 requests for up to 5 additional custodians 

17 per producing party, upon a showing of a 

18 distinct need based on the size, complexity, 

19 and issues of the case. 

20 (v) If a party requests the discovery of 

21 electronic communication for additional 

22 custodians beyond the limits agreed to by 

23 the parties or granted by the court, the re24 questing party shall bear all reasonable 

25 costs caused by such additional discovery. 


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1 (C) ADDITIONAL DOCUMENT DISCOVERY.— 

2 Whether the following should apply: 

3 (i) IN GENERAL.—Each party to the 

4 action may seek any additional document 

5 discovery otherwise permitted under the 

6 Federal Rules of Civil Procedure, if such 

7 party bears the reasonable costs, including 

8 reasonable attorney’s fees, of the additional 

9 document discovery. 

10 (ii) REQUIREMENTS FOR ADDITIONAL

11 DOCUMENT DISCOVERY.—Unless the parties 

12 mutually agree otherwise, no party may be 

13 permitted additional document discovery 

14 unless such a party posts a bond, or pro15 vides other security, in an amount sufficient 

16 to cover the expected costs of such additional 

17 document discovery, or makes a showing to 

18 the court that such party has the financial 

19 capacity to pay the costs of such additional 

20 document discovery. 

21 (iii) LIMITS ON ADDITIONAL DOCU22 MENT DISCOVERY.—A court, upon motion, 

23 may determine that a request for additional 

24 document discovery is excessive, irrelevant, 


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1 or otherwise abusive and may set limits on 

2 such additional document discovery. 

3 (iv) GOOD CAUSE MODIFICATION.—A 

4 court, upon motion and for good cause 

5 shown, may modify the requirements of sub6 paragraphs (A) and (B) and any definition 

7 under paragraph (3). Not later than 30 

8 days after the pretrial conference under 

9 Rule 16 of the Federal Rules of Civil Proce10 dure, the parties shall jointly submit any 

11 proposed modifications of the requirements 

12 of subparagraphs (A) and (B) and any defi13 nition under paragraph (3), unless the par14 ties do not agree, in which case each party 

15 shall submit any proposed modification of 

16 such party and a summary of the disagree17 ment over the modification. 

18 (v) COMPUTER CODE.—A court, upon 

19 motion and for good cause shown, may de20 termine that computer code should be in21 cluded in the discovery of core documentary 

22 evidence. The discovery of computer code 

23 shall occur after the parties have exchanged 

24 initial disclosures and other core documen25 tary evidence. 


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1 (D) DISCOVERY SEQUENCE AND SCOPE.— 

2 Whether the parties shall discuss and address in 

3 the written report filed pursuant to Rule 26(f) of 

4 the Federal Rules of Civil Procedure the views 

5 and proposals of each party on the following: 

6 (i) When the discovery of core docu7 mentary evidence should be completed. 

8 (ii) Whether additional document dis9 covery will be sought under subparagraph 

10 (C). 

11 (iii) Any issues about infringement, 

12 invalidity, or damages that, if resolved be13 fore the additional discovery described in 

14 subparagraph (C) commences, might sim15 plify or streamline the case, including the 

16 identification of any terms or phrases relat17 ing to any patent claim at issue to be con18 strued by the court and whether the early 

19 construction of any of those terms or 

20 phrases would be helpful. 

21 (3) DEFINITIONS.—In this subsection: 

22 (A) CORE DOCUMENTARY EVIDENCE.—The 

23 term ‘‘core documentary evidence’’— 

24 (i) includes— 


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1 (I) documents relating to the con2 ception of, reduction to practice of, and 

3 application for, the patent or patents 

4 at issue; 

5 (II) documents sufficient to show 

6 the technical operation of the product 

7 or process identified in the complaint 

8 as infringing the patent or patents at 

9 issue; 

10 (III) documents relating to poten11 tially invalidating prior art; 

12 (IV) documents relating to any li13 censing of, or other transfer of rights 

14 to, the patent or patents at issue before 

15 the date on which the complaint is 

16 filed; 

17 (V) documents sufficient to show 

18 profit attributable to the claimed in19 vention of the patent or patents at 

20 issue; 

21 (VI) documents relating to any 

22 knowledge by the accused infringer of 

23 the patent or patents at issue before the 

24 date on which the complaint is filed; 


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1 (VII) documents relating to any 

2 knowledge by the patentee of infringe3 ment of the patent or patents at issue 

4 before the date on which the complaint 

5 is filed; 

6 (VIII) documents relating to any 

7 licensing term or pricing commitment 

8 to which the patent or patents may be 

9 subject through any agency or stand10 ard-setting body; and 

11 (IX) documents sufficient to show 

12 any marking or other notice provided 

13 of the patent or patents at issue; and 

14 (ii) does not include computer code, ex15 cept as specified in paragraph (2)(C)(v). 

16 (B) ELECTRONIC COMMUNICATION.—The 

17 term ‘‘electronic communication’’ means any 

18 form of electronic communication, including 

19 email, text message, or instant message. 

20 (4) IMPLEMENTATION BY THE DISTRICT

21 COURTS.—Not later than 6 months after the date on 

22 which the Judicial Conference has developed the rules 

23 and procedures required by this subsection, each 

24 United States district court and the United States 

25 Court of Federal Claims shall revise the applicable 


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1 local rules for such court to implement such rules and 

2 procedures. 

3 (5) AUTHORITY FOR JUDICIAL CONFERENCE TO

4 REVIEW AND MODIFY.— 

5 (A) STUDY OF EFFICACY OF RULES AND

6 PROCEDURES.—The Judicial Conference shall 

7 study the efficacy of the rules and procedures re8 quired by this subsection during the 4-year pe9 riod beginning on the date on which such rules 

10 and procedures by the district courts and the 

11 United States Court of Federal Claims are first 

12 implemented. The Judicial Conference may mod13 ify such rules and procedures following such 4- 

14 year period. 

15 (B) INITIAL MODIFICATIONS.—Before the ex16 piration of the 4-year period described in sub17 paragraph (A), the Judicial Conference may 

18 modify the requirements under this subsection— 

19 (i) by designating categories of ‘‘core 

20 documentary evidence’’, in addition to those 

21 designated under paragraph (3)(A), as the 

22 Judicial Conference determines to be appro23 priate and necessary; and 

24 (ii) as otherwise necessary to prevent a 

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1 quirement the costs of which clearly out2 weigh its benefits, or a result that could not 

3 reasonably have been intended by the Con4 gress. 

5 (b) JUDICIAL CONFERENCE PATENT CASE MANAGE6 MENT.—The Judicial Conference of the United States, using 

7 existing resources, shall develop case management proce8 dures to be implemented by the United States district courts 

9 and the United States Court of Federal Claims for any civil 

10 action arising under any Act of Congress relating to pat11 ents, including initial disclosure and early case manage12 ment conference practices that— 

13 (1) will identify any potential dispositive issues 

14 of the case; and 

15 (2) focus on early summary judgment motions 

16 when resolution of issues may lead to expedited dis17 position of the case. 

18 (c) REVISION OF FORM FOR PATENT INFRINGE19 MENT.— 

20 (1) ELIMINATION OF FORM.—The Supreme 

21 Court, using existing resources, shall eliminate Form 

22 18 in the Appendix to the Federal Rules of Civil Pro23 cedure (relating to Complaint for Patent Infringe24 ment), effective on the date of the enactment of this 

25 Act. 


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1 (2) REVISED FORM.—The Supreme Court may 

2 prescribe a new form or forms setting out model alle3 gations of patent infringement that, at a minimum, 

4 notify accused infringers of the asserted claim or 

5 claims, the products or services accused of infringe6 ment, and the plaintiff’s theory for how each accused 

7 product or service meets each limitation of each as8 serted claim. The Judicial Conference should exercise 

9 the authority under section 2073 of title 28, United 

10 States Code, to make recommendations with respect to 

11 such new form or forms. 

12 (d) PROTECTION OF INTELLECTUAL-PROPERTY LI13 CENSES IN BANKRUPTCY.— 

14 (1) IN GENERAL.—Section 1520(a) of title 11, 

15 United States Code, is amended— 

16 (A) in paragraph (3), by striking ‘‘; and’’ 

17 and inserting a semicolon; 

18 (B) in paragraph (4), by striking the period 

19 at the end and inserting ‘‘; and’’; and 

20 (C) by inserting at the end the following 

21 new paragraph: 

22 ‘‘(5) section 365(n) applies to intellectual prop23 erty of which the debtor is a licensor or which the 

24 debtor has transferred.’’. 

25 (2) TRADEMARKS.— 


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1 (A) IN GENERAL.—Section 101(35A) of title 

2 11, United States Code, is amended— 

3 (i) in subparagraph (E), by striking 

4 ‘‘or’’; 

5 (ii) in subparagraph (F), by striking 

6 ‘‘title 17;’’ and inserting ‘‘title 17; or’’; and 

7 (iii) by adding after subparagraph (F) 

8 the following new subparagraph: 

9 ‘‘(G) a trademark, service mark, or trade 

10 name, as those terms are defined in section 45 of 

11 the Act of July 5, 1946 (commonly referred to as 

12 the ‘Trademark Act of 1946’) (15 U.S.C. 1127);’’. 

13 (B) CONFORMING AMENDMENT.—Section 

14 365(n)(2) of title 11, United States Code, is 

15 amended— 

16 (i) in subparagraph (B)— 

17 (I) by striking ‘‘royalty pay18 ments’’ and inserting ‘‘royalty or other 

19 payments’’; and 

20 (II) by striking ‘‘and’’ after the 

21 semicolon; 

22 (ii) in subparagraph (C), by striking 

23 the period at the end of clause (ii) and in24 serting ‘‘; and’’; and 


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1 (iii) by adding at the end the following 

2 new subparagraph: 

3 ‘‘(D) in the case of a trademark, service mark, 

4 or trade name, the trustee shall not be relieved of a 

5 contractual obligation to monitor and control the 

6 quality of a licensed product or service.’’. 

7 (3) EFFECTIVE DATE.—The amendments made 

8 by this subsection shall take effect on the date of the 

9 enactment of this Act and shall apply to any case 

10 that is pending on, or for which a petition or com11 plaint is filed on or after, such date of enactment. 

12 SEC. 7. SMALL BUSINESS EDUCATION, OUTREACH, AND IN13 FORMATION ACCESS. 

14 (a) SMALL BUSINESS EDUCATION AND OUTREACH.— 

15 (1) RESOURCES FOR SMALL BUSINESS.—Using 

16 existing resources, the Director shall develop edu17 cational resources for small businesses to address con18 cerns arising from patent infringement. 

19 (2) SMALL BUSINESS PATENT OMBUDSMAN.—The 

20 Patent Ombudsman Program established under sec21 tion 28 of the Leahy-Smith America Invents Act 

22 (Public Law 112–29; 125 Stat. 339; 35 U.S.C. 2 note) 

23 shall coordinate with the existing small business out24 reach programs of the Office, and the relevant offices 

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1 ity Business Development Agency, to provide edu2 cation and awareness on abusive patent litigation 

3 practices. The Director may give special consideration 

4 to the unique needs of small firms owned by disabled 

5 veterans, service-disabled veterans, women, and mi6 nority entrepreneurs in planning and executing the 

7 outreach efforts by the Office. 

8 (b) IMPROVING INFORMATION TRANSPARENCY FOR

9 SMALL BUSINESS AND THE UNITED STATES PATENT AND

10 TRADEMARK OFFICE USERS.— 

11 (1) WEB SITE.—Using existing resources, the Di12 rector shall create a user-friendly section on the offi13 cial Web site of the Office to notify the public when 

14 a patent case is brought in Federal court and, with 

15 respect to each patent at issue in such case, the Direc16 tor shall include— 

17 (A) information disclosed under subsections 

18 (b) and (d) of section 290 of title 35, United 

19 States Code, as added by section 4(a) of this Act; 

20 and 

21 (B) any other information the Director de22 termines to be relevant. 

23 (2) FORMAT.—In order to promote accessibility 

24 for the public, the information described in paragraph 


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1 (1) shall be searchable by patent number, patent art 

2 area, and entity. 

3 SEC. 8. STUDIES ON PATENT TRANSACTIONS, QUALITY, AND 

4 EXAMINATION. 

5 (a) STUDY ON SECONDARY MARKET OVERSIGHT FOR

6 PATENT TRANSACTIONS TO PROMOTE TRANSPARENCY AND

7 ETHICAL BUSINESS PRACTICES.— 

8 (1) STUDY REQUIRED.—The Director, in con9 sultation with the Secretary of Commerce, the Sec10 retary of the Treasury, the Chairman of the Securities 

11 and Exchange Commission, the heads of other rel12 evant agencies, and interested parties, shall, using ex13 isting resources of the Office, conduct a study— 

14 (A) to develop legislative recommendations 

15 to ensure greater transparency and account16 ability in patent transactions occurring on the 

17 secondary market; 

18 (B) to examine the economic impact that 

19 the patent secondary market has on the United 

20 States; 

21 (C) to examine licensing and other oversight 

22 requirements that may be placed on the patent 

23 secondary market, including on the participants 

24 in such markets, to ensure that the market is a 

25 level playing field and that brokers in the market 


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1 have the requisite expertise and adhere to ethical 

2 business practices; and 

3 (D) to examine the requirements placed on 

4 other markets. 

5 (2) REPORT ON STUDY.—Not later than 1 year 

6 after the date of the enactment of this Act, the Direc7 tor shall submit a report to the Committee on the Ju8 diciary of the House of Representatives and the Com9 mittee on the Judiciary of the Senate on the findings 

10 and recommendations of the Director from the study 

11 required under paragraph (1). 

12 (b) STUDY ON PATENTS OWNED BY THE UNITED

13 STATES GOVERNMENT.— 

14 (1) STUDY REQUIRED.—The Director, in con15 sultation with the heads of relevant agencies and in16 terested parties, shall, using existing resources of the 

17 Office, conduct a study on patents owned by the 

18 United States Government that— 

19 (A) examines how such patents are licensed 

20 and sold, and any litigation relating to the li21 censing or sale of such patents; 

22 (B) provides legislative and administrative 

23 recommendations on whether there should be re24 strictions placed on patents acquired from the 

25 United States Government; 


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1 (C) examines whether or not each relevant 

2 agency maintains adequate records on the pat3 ents owned by such agency, specifically whether 

4 such agency addresses licensing, assignment, and 

5 Government grants for technology related to such 

6 patents; and 

7 (D) provides recommendations to ensure 

8 that each relevant agency has an adequate point 

9 of contact that is responsible for managing the 

10 patent portfolio of the agency. 

11 (2) REPORT ON STUDY.—Not later than 6 

12 months after the date of the enactment of this Act, the 

13 Director shall submit to the Committee on the Judici14 ary of the House of Representatives and the Com15 mittee on the Judiciary of the Senate a report on the 

16 findings and recommendations of the Director from 

17 the study required under paragraph (1). 

18 (c) STUDY ON PATENT QUALITY AND ACCESS TO THE

19 BEST INFORMATION DURING EXAMINATION.— 

20 (1) GAO STUDY.—The Comptroller General of 

21 the United States shall conduct a study on patent ex22 amination at the Office and the technologies available 

23 to improve examination and improve patent quality. 


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1 (2) CONTENTS OF THE STUDY.—The study re2 quired under paragraph (1) shall include the fol3 lowing: 

4 (A) An examination of patent quality at the 

5 Office. 

6 (B) An examination of ways to improve 

7 patent quality, specifically through technology, 

8 that shall include examining best practices at 

9 foreign patent offices and the use of existing off10 the-shelf technologies to improve patent examina11 tion. 

12 (C) A description of how patents are classi13 fied. 

14 (D) An examination of procedures in place 

15 to prevent double patenting through filing by ap16 plicants in multiple art areas. 

17 (E) An examination of the types of off-the18 shelf prior art databases and search software 

19 used by foreign patent offices and governments, 

20 particularly in Europe and Asia, and whether 

21 those databases and search tools could be used by 

22 the Office to improve patent examination. 

23 (F) An examination of any other areas the 

24 Comptroller General determines to be relevant. 


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1 (3) REPORT ON STUDY.—Not later than 6 

2 months after the date of the enactment of this Act, the 

3 Comptroller General shall submit to the Committee on 

4 the Judiciary of the House of Representatives and the 

5 Committee on the Judiciary of the Senate a report on 

6 the findings and recommendations from the study re7 quired by this subsection, including recommendations 

8 for any changes to laws and regulations that will im9 prove the examination of patent applications and 

10 patent quality. 

11 (d) STUDY ON PATENT SMALL CLAIMS COURT.— 

12 (1) STUDY REQUIRED.— 

13 (A) IN GENERAL.—The Director of the Ad14 ministrative Office of the United States Courts, 

15 in consultation with the Director of the Federal 

16 Judicial Center and the United States Patent 

17 and Trademark Office, shall, using existing re18 sources, conduct a study to examine the idea of 

19 developing a pilot program for patent small 

20 claims courts in certain judicial districts within 

21 the existing patent pilot program mandated by 

22 Public Law 111–349. 

23 (B) CONTENTS OF STUDY.—The study 

24 under subparagraph (A) shall examine— 


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1 (i) the number of and qualifications 

2 for judges that could serve on such small 

3 claims courts; 

4 (ii) how such small claims courts 

5 would be designated and the necessary cri6 teria for such designation; 

7 (iii) the costs that would be incurred 

8 for establishing, maintaining, and oper9 ating such a pilot program; and 

10 (iv) the steps that would be taken to 

11 ensure that the courts in the pilot program 

12 are not misused for abusive patent litiga13 tion. 

14 (2) REPORT ON STUDY.—Not later than 1 year 

15 after the date of the enactment of this Act, the Direc16 tor of the Administrative Office of the United States 

17 Courts shall submit a report to the Committee on the 

18 Judiciary of the House of Representatives and the 

19 Committee on the Judiciary of the Senate on the find20 ings and recommendations of the Director of the Ad21 ministrative Office from the study required under 

22 paragraph (1). 

23 (e) STUDY ON DEMAND LETTERS.— 

24 (1) STUDY.—The Director, in consultation with 

25 the heads of other appropriate agencies, shall conduct 


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1 a study of the prevalence of the practice of sending 

2 patent demand letters in bad faith and the extent to 

3 which that practice may, through fraudulent or decep4 tive practices, impose a negative impact on the mar5 ketplace. 

6 (2) REPORT TO CONGRESS.—Not later than 1 

7 year after the date of the enactment of this Act, the 

8 Director shall submit a report to the Committee on 

9 the Judiciary of the House of Representatives and the 

10 Committee on the Judiciary of the Senate on the find11 ings and recommendations of the Director from the 

12 study required under paragraph (1). 

13 (3) PATENT DEMAND LETTER DEFINED.—In this 

14 subsection, the term ‘‘patent demand letter’’ means a 

15 written communication relating to a patent that 

16 states or indicates, directly or indirectly, that the re17 cipient or anyone affiliated with the recipient is or 

18 may be infringing the patent. 

19 (f) STUDY ON BUSINESS METHOD PATENT QUALITY.— 

20 (1) GAO STUDY.—The Comptroller General of 

21 the United States shall conduct a study on the volume 

22 and nature of litigation involving business method 

23 patents. 

24 (2) CONTENTS OF STUDY.—The study required 

25 under paragraph (1) shall focus on examining the 


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1 quality of business method patents asserted in suits 

2 alleging patent infringement, and may include an ex3 amination of any other areas that the Comptroller 

4 General determines to be relevant. 

5 (3) REPORT TO CONGRESS.—Not later than 6 

6 months after the date of the enactment of this Act, the 

7 Comptroller General shall submit to the Committee on 

8 the Judiciary of the House of Representatives and the 

9 Committee on the Judiciary of the Senate a report on 

10 the findings and recommendations from the study re11 quired by this subsection, including recommendations 

12 for any changes to laws or regulations that the Comp13 troller General considers appropriate on the basis of 

14 the study. 

15 SEC. 9. IMPROVEMENTS AND TECHNICAL CORRECTIONS TO 

16 THE LEAHY-SMITH AMERICA INVENTS ACT. 

17 (a) REPEAL OF CIVIL ACTION TO OBTAIN A PAT18 ENT.— 

19 (1) REPEAL.—Section 145 of title 35, United 

20 States Code, is repealed. 

21 (2) CONFORMING AMENDMENTS.— 

22 (A) FEDERAL CIRCUIT JURISDICTION.—Sec23 tion 1295(a)(4) of title 28, United States Code, 

24 is amended— 


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1 (i) in subparagraph (A), by striking 

2 ‘‘except that an applicant or a party’’ and 

3 all that follows through the end of the sub4 paragraph and inserting the following: ‘‘ex5 cept that a party to a derivation proceeding 

6 may also have remedy by civil action under 

7 section 146 of title 35; an appeal under this 

8 subparagraph of a decision of the Board 

9 with respect to a derivation proceeding shall 

10 waive the right of such party to proceed 

11 under section 146 of title 35;’’; and 

12 (ii) in subparagraph (C), by striking 

13 ‘‘section 145, 146, or’’ and inserting ‘‘sec14 tion 146 or’’. 

15 (B) FEDERAL CIRCUIT APPEAL.—Section 

16 141(a) of title 35, United States Code, is amend17 ed— 

18 (i) by striking ‘‘may appeal the 

19 Board’s decision to’’ and inserting ‘‘may 

20 appeal the Board’s decision only to’’; and 

21 (ii) by striking the second sentence. 

22 (C) ADJUSTMENT OF PATENT TERM.—Sec23 tion 154(b)(1)(A)(iii) of title 35, United States 

24 Code, is amended by striking ‘‘section 141, 145, 

25 or 146’’ and inserting ‘‘section 141 or 146’’. 


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1 (D) CLERICAL AMENDMENT.—The table of 

2 sections for chapter 13 of title 35, United States 

3 Code, is amended by repealing the item relating 

4 to section 145. 

5 (3) EFFECTIVE DATE.—The amendments made 

6 by this subsection shall take effect on the date of the 

7 enactment of this Act and apply to any proceeding in 

8 which a decision is made by the Patent Trial and Ap9 peal Board on or after such date of enactment. 

10 (b) POST-GRANT REVIEW AMENDMENT.—Section 

11 325(e)(2) of title 35, United States Code is amended by 

12 striking ‘‘or reasonably could have raised’’. 

13 (c) USE OF DISTRICT-COURT CLAIM CONSTRUCTION IN

14 POST-GRANT AND INTER PARTES REVIEWS.— 

15 (1) INTER PARTES REVIEW.—Section 316(a) of 

16 title 35, United States Code, is amended— 

17 (A) in paragraph (12), by striking ‘‘; and’’ 

18 and inserting a semicolon; 

19 (B) in paragraph (13), by striking the pe20 riod at the end and inserting ‘‘; and’’; and 

21 (C) by adding at the end the following new 

22 paragraph: 

23 ‘‘(14) providing that for all purposes under this 

24 chapter— 


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1 ‘‘(A) each claim of a patent shall be con2 strued as such claim would be in a civil action 

3 to invalidate a patent under section 282(b), in4 cluding construing each claim of the patent in 

5 accordance with the ordinary and customary 

6 meaning of such claim as understood by one of 

7 ordinary skill in the art and the prosecution his8 tory pertaining to the patent; and 

9 ‘‘(B) if a court has previously construed the 

10 claim or a claim term in a civil action in which 

11 the patent owner was a party, the Office shall 

12 consider such claim construction.’’. 

13 (2) POST-GRANT REVIEW.—Section 326(a) of 

14 title 35, United States Code, is amended— 

15 (A) in paragraph (11), by striking ‘‘; and’’ 

16 and inserting a semicolon; 

17 (B) in paragraph (12), by striking the pe18 riod at the end and inserting ‘‘; and’’; and 

19 (C) by adding at the end the following new 

20 paragraph: 

21 ‘‘(13) providing that for all purposes under this 

22 chapter— 

23 ‘‘(A) each claim of a patent shall be con24 strued as such claim would be in a civil action 

25 to invalidate a patent under section 282(b), inVerDate Mar 15 2010 21:53 Dec 02, 2013 Jkt 039200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6203 E:\BILLS\H3309.RH H3309

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1 cluding construing each claim of the patent in 

2 accordance with the ordinary and customary 

3 meaning of such claim as understood by one of 

4 ordinary skill in the art and the prosecution his5 tory pertaining to the patent; and 

6 ‘‘(B) if a court has previously construed the 

7 claim or a claim term in a civil action in which 

8 the patent owner was a party, the Office shall 

9 consider such claim construction.’’. 

10 (3) TECHNICAL AND CONFORMING AMEND11 MENT.—Section 18(a)(1)(A) of the Leahy-Smith 

12 America Invents Act (Public Law 112–29; 126 Stat. 

13 329; 35 U.S.C. 321 note) is amended by striking 

14 ‘‘Section 321(c)’’ and inserting ‘‘Sections 321(c) and 

15 326(a)(13)’’. 

16 (4) EFFECTIVE DATE.—The amendments made 

17 by this subsection shall take effect upon the expiration 

18 of the 90-day period beginning on the date of the en19 actment of this Act, and shall apply to any pro20 ceeding under chapter 31 or 32 of title 35, United 

21 States Code, as the case may be, for which the peti22 tion for review is filed on or after such effective date. 

23 (d) CODIFICATION OF THE DOUBLE-PATENTING DOC24 TRINE FOR FIRST-INVENTOR-TO-FILE PATENTS.— 


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1 (1) AMENDMENT.—Chapter 10 of title 35, United 

2 States Code, is amended by adding at the end the fol3 lowing new section: 

4 ‘‘§ 106. Prior art in cases of double patenting 

5 ‘‘A claimed invention of a patent issued under section 

6 151 (referred to as the ‘first patent’) that is not prior art 

7 to a claimed invention of another patent (referred to as the 

8 ‘second patent’) shall be considered prior art to the claimed 

9 invention of the second patent for the purpose of deter10 mining the nonobviousness of the claimed invention of the 

11 second patent under section 103 if— 

12 ‘‘(1) the claimed invention of the first patent was 

13 effectively filed under section 102(d) on or before the 

14 effective filing date of the claimed invention of the sec15 ond patent; 

16 ‘‘(2) either— 

17 ‘‘(A) the first patent and second patent 

18 name the same inventor; or 

19 ‘‘(B) the claimed invention of the first pat20 ent would constitute prior art to the claimed in21 vention of the second patent under section 

22 102(a)(2) if an exception under section 102(b)(2) 

23 were deemed to be inapplicable and the claimed 

24 invention of the first patent was, or were deemed 

25 to be, effectively filed under section 102(d) before 


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1 the effective filing date of the claimed invention 

2 of the second patent; and 

3 ‘‘(3) the patentee of the second patent has not 

4 disclaimed the rights to enforce the second patent 

5 independently from, and beyond the statutory term of, 

6 the first patent.’’. 

7 (2) REGULATIONS.—The Director shall promul8 gate regulations setting forth the form and content of 

9 any disclaimer required for a patent to be issued in 

10 compliance with section 106 of title 35, United States 

11 Code, as added by paragraph (1). Such regulations 

12 shall apply to any disclaimer filed after a patent has 

13 issued. A disclaimer, when filed, shall be considered 

14 for the purpose of determining the validity of the pat15 ent under section 106 of title 35, United States Code. 

16 (3) CONFORMING AMENDMENT.—The table of sec17 tions for chapter 10 of title 35, United States Code, 

18 is amended by adding at the end the following new 

19 item: 

‘‘106. Prior art in cases of double patenting.’’. 

20 (4) EXCLUSIVE RULE.—A patent subject to sec21 tion 106 of title 35, United States Code, as added by 

22 paragraph (1), shall not be held invalid on any non23 statutory, double-patenting ground. 

24 (5) EFFECTIVE DATE.—The amendments made 

25 by this subsection shall take effect on the date of the 


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1 enactment of this Act and shall apply to a patent or 

2 patent application only if both the first and second 

3 patents described in section 106 of title 35, United 

4 States Code, as added by paragraph (1), are patents 

5 or patent applications that are described in section 

6 3(n)(1) of the Leahy-Smith America Invents Act (35 

7 U.S.C. 100 note). 

8 (e) PTO PATENT REVIEWS.— 

9 (1) CLARIFICATION.— 

10 (A) SCOPE OF PRIOR ART.—Section 

11 18(a)(1)(C)(i) of the Leahy-Smith America In12 vents Act (35 U.S.C. 321 note) is amended by 

13 striking ‘‘section 102(a)’’ and inserting ‘‘sub14 section (a) or (e) of section 102’’. 

15 (B) EFFECTIVE DATE.—The amendment 

16 made by subparagraph (A) shall take effect on 

17 the date of the enactment of this Act and shall 

18 apply to any proceeding pending on, or filed on 

19 or after, such date of enactment. 

20 (2) AUTHORITY TO WAIVE FEE.—Subject to 

21 available resources, the Director may waive payment 

22 of a filing fee for a transitional proceeding described 

23 under section 18(a) of the Leahy-Smith America In24 vents Act (35 U.S.C. 321 note). 


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1 (f) CLARIFICATION OF LIMITS ON PATENT TERM AD2 JUSTMENT.— 

3 (1) AMENDMENTS.—Section 154(b)(1)(B) of title 

4 35, United States Code, is amended— 

5 (A) in the matter preceding clause (i), by 

6 striking ‘‘not including—’’ and inserting ‘‘the 

7 term of the patent shall be extended 1 day for 

8 each day after the end of that 3-year period until 

9 the patent is issued, not including—’’; 

10 (B) in clause (i), by striking ‘‘consumed by 

11 continued examination of the application re12 quested by the applicant’’ and inserting ‘‘con13 sumed after continued examination of the appli14 cation is requested by the applicant’’; 

15 (C) in clause (iii), by striking the comma at 

16 the end and inserting a period; and 

17 (D) by striking the matter following clause 

18 (iii). 

19 (2) EFFECTIVE DATE.—The amendments made 

20 by this subsection shall take effect on the date of the 

21 enactment of this Act and apply to any patent appli22 cation or patent that is pending on, or filed on or 

23 after, such date of enactment. 

24 (g) CLARIFICATION OF JURISDICTION.— 


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1 (1) IN GENERAL.—The Federal interest in pre2 venting inconsistent final judicial determinations as 

3 to the legal force or effect of the claims in a patent 

4 presents a substantial Federal issue that is important 

5 to the Federal system as a whole. 

6 (2) APPLICABILITY.—Paragraph (1)— 

7 (A) shall apply to all cases filed on or after, 

8 or pending on, the date of the enactment of this 

9 Act; and 

10 (B) shall not apply to a case in which a 

11 Federal court has issued a ruling on whether the 

12 case or a claim arises under any Act of Congress 

13 relating to patents or plant variety protection 

14 before the date of the enactment of this Act. 

15 (h) PATENT PILOT PROGRAM IN CERTAIN DISTRICT

16 COURTS DURATION.— 

17 (1) DURATION.—Section 1(c) of Public Law 

18 111–349 (124 Stat. 3674; 28 U.S.C. 137 note) is 

19 amended to read as follows: 

20 ‘‘(c) DURATION.—The program established under sub21 section (a) shall be maintained using existing resources, 

22 and shall terminate 20 years after the end of the 6-month 

23 period described in subsection (b).’’. 


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1 (2) EFFECTIVE DATE.—The amendment made by 

2 paragraph (1) shall take effect on the date of the en3 actment of this Act. 

4 (i) TECHNICAL CORRECTIONS.— 

5 (1) NOVELTY.— 

6 (A) AMENDMENT.—Section 102(b)(1)(A) of 

7 title 35, United States Code, is amended by 

8 striking ‘‘the inventor or joint inventor or by an9 other’’ and inserting ‘‘the inventor or a joint in10 ventor or another’’. 

11 (B) EFFECTIVE DATE.—The amendment 

12 made by subparagraph (A) shall be effective as 

13 if included in the amendment made by section 

14 3(b)(1) of the Leahy-Smith America Invents Act 

15 (Public Law 112–29). 

16 (2) INVENTOR’S OATH OR DECLARATION.— 

17 (A) AMENDMENT.—The second sentence of 

18 section 115(a) of title 35, United States Code, is 

19 amended— 

20 (i) by striking ‘‘Except as otherwise 

21 provided’’ and inserting ‘‘Except for an ap22 plication filed under section 118 or as oth23 erwise provided’’; and 


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1 (ii) by striking ‘‘shall execute’’ and in2 serting ‘‘may be required by the Director to 

3 execute’’. 

4 (B) EFFECTIVE DATE.—The amendments 

5 made by subparagraph (A) shall be effective as 

6 if included in the amendment made by section 

7 4(a)(1) of the Leahy-Smith America Invents Act 

8 (Public Law 112–29). 

9 (3) ASSIGNEE FILERS.— 

10 (A) BENEFIT OF EARLIER FILING DATE; 

11 RIGHT OF PRIORITY.—Section 119(e)(1) of title 

12 35, United States Code, is amended, in the first 

13 sentence, by striking ‘‘by an inventor or inven14 tors named’’ and inserting ‘‘that names the in15 ventor or a joint inventor’’. 

16 (B) BENEFIT OF EARLIER FILING DATE IN

17 THE UNITED STATES.—Section 120 of title 35, 

18 United States Code, is amended, in the first sen19 tence, by striking ‘‘names an inventor or joint 

20 inventor’’ and inserting ‘‘names the inventor or 

21 a joint inventor’’. 

22 (C) EFFECTIVE DATE.—The amendments 

23 made by this paragraph shall take effect on the 

24 date of the enactment of this Act and shall apply 

25 to any patent application, and any patent 


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1 issuing from such application, that is filed on or 

2 after September 16, 2012. 

3 (4) DERIVED PATENTS.— 

4 (A) AMENDMENT.—Section 291(b) of title 

5 35, United States Code, is amended by striking 

6 ‘‘or joint inventor’’ and inserting ‘‘or a joint in7 ventor’’. 

8 (B) EFFECTIVE DATE.—The amendment 

9 made by subparagraph (A) shall be effective as 

10 if included in the amendment made by section 

11 3(h)(1) of the Leahy-Smith America Invents Act 

12 (Public Law No. 112–29). 

13 (5) SPECIFICATION.—Notwithstanding section 

14 4(e) of the Leahy-Smith America Invents Act (Public 

15 Law 112–29; 125 Stat. 297), the amendments made 

16 by subsections (c) and (d) of section 4 of such Act 

17 shall apply to any proceeding or matter that is pend18 ing on, or filed on or after, the date of the enactment 

19 of this Act. 

20 (6) TIME LIMIT FOR COMMENCING MISCONDUCT

21 PROCEEDINGS.— 

22 (A) AMENDMENT.—The fourth sentence of 

23 section 32 of title 35, United States Code, is 

24 amended by striking ‘‘1 year’’ and inserting ‘‘2 

25 years’’. 


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1 (B) EFFECTIVE DATE.—The amendment 

2 made by this paragraph shall take effect on the 

3 date of the enactment of this Act and shall apply 

4 to any action in which the Office files a com5 plaint on or after such date of enactment. 

6 (7) PATENT OWNER RESPONSE.— 

7 (A) CONDUCT OF INTER PARTES REVIEW.— 

8 Paragraph (8) of section 316(a) of title 35, 

9 United States Code, is amended by striking ‘‘the 

10 petition under section 313’’ and inserting ‘‘the 

11 petition under section 311’’. 

12 (B) CONDUCT OF POST-GRANT REVIEW.— 

13 Paragraph (8) of section 326(a) of title 35, 

14 United States Code, is amended by striking ‘‘the 

15 petition under section 323’’ and inserting ‘‘the 

16 petition under section 321’’. 

17 (C) EFFECTIVE DATE.—The amendments 

18 made by this paragraph shall take effect on the 

19 date of the enactment of this Act. 

20 (8) INTERNATIONAL APPLICATIONS.— 

21 (A) AMENDMENTS.—Section 202(b) of the 

22 Patent Law Treaties Implementation Act of 

23 2012 (Public Law 112–211; 126 Stat. 1536) is 

24 amended— 

25 (i) by striking paragraph (7); and 


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1 (ii) by redesignating paragraphs (8) 

2 and (9) as paragraphs (7) and (8), respec3 tively. 

4 (B) EFFECTIVE DATE.—The amendments 

5 made by subparagraph (A) shall be effective as 

6 if included in title II of the Patent Law Treaties 

7 Implementation Act of 2012 (Public Law 112– 

8 21). 

9 SEC. 10. EFFECTIVE DATE. 

10 Except as otherwise provided in this Act, the provi11 sions of this Act shall take effect on the date of the enact12 ment of this Act, and shall apply to any patent issued, or 

13 any action filed, on or after that date. 


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Union Calendar No. 200 

113TH CONGRESS 

1ST SESSION H. R. 3309 

[Report No. 113–279] 

A BILL 

To amend title 35, United States Code, and the 

other purposes. provements and technical corrections, and for Leahy-Smith America Invents Act to make imDECEMBER 2, 2013 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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