II 

116TH CONGRESS 

1ST SESSION S. 2082 

To strengthen the position of the United States as the world’s leading innovator by amending title 35, United States Code, to protect the property 

rights of the inventors that grow the country’s economy. 

IN THE SENATE OF THE UNITED STATES 

JULY 10, 2019 

Mr. COONS (for himself, Mr. COTTON, Mr. DURBIN, Ms. HIRONO, Mr. KENNEDY, and Mr. CRAMER) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To strengthen the position of the United States as the 

world’s leading innovator by amending title 35, United 

States Code, to protect the property rights of the inventors that grow the country’s economy. 

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 

5 ‘‘Support Technology and Research for Our Nation’s 

6 Growth and Economic Resilience Patents Act of 2019’’ or 

7 the ‘‘STRONGER Patents Act of 2019’’. 


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

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—STRONGER PATENTS ACT 

Sec. 101. Findings. 

Sec. 102. Inter partes review. 

Sec. 103. Post-grant review. 

Sec. 104. Composition of post-grant review and inter partes review panels. 

Sec. 105. Reexamination of patents. 

Sec. 106. Restoration of patents as property rights. 

Sec. 107. Elimination of USPTO fee diversion. 

Sec. 108. Institutions of higher education. 

Sec. 109. Assisting small businesses in the U.S. patent system. 

TITLE II—TARGETING ROGUE AND OPAQUE LETTERS 

Sec. 201. Definitions. 

Sec. 202. Unfair or deceptive acts or practices in connection with the assertion 

of a United States patent. 

Sec. 203. Enforcement by Federal Trade Commission. 

Sec. 204. Preemption of State laws on patent demand letters and enforcement 

by State attorneys general. 

3 TITLE I—STRONGER PATENTS 

4 ACT 

5 SEC. 101. FINDINGS. 

6 Congress finds that— 

7 (1) the patent property rights enshrined in the 

8 Constitution of the United States provide the foun9 dation for the exceptional innovation environment in 

10 the United States; 

11 (2) strong patent rights encourage United 

12 States inventors to invest their resources in creating 

13 new inventions; 

14 (3) patent protection has led to patient cures, 

15 positive changes to the standard of living for all peoVerDate Sep 11 2014 05:30 Jul 16, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2082.IS S2082

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1 ple in the United States, and improvements to the 

2 agricultural, telecommunications, and electronics in3 dustries, among others; 

4 (4) the United States patent system is an es5 sential part of the country’s economic success; 

6 (5) strong patent protection improves the 

7 chances of success for small companies and increases 

8 their chances of securing financing from investors; 

9 (6) intellectual property-intensive industries in 

10 the United States generate tens of millions of jobs 

11 for individuals in the United States; 

12 (7) intellectual property-intensive industries in 

13 the United States account for more than one-third 

14 of the country’s gross domestic product; 

15 (8) in the highly competitive global economy, 

16 the United States needs to uphold strong patent 

17 protections to maintain its position as the world’s 

18 premier innovative country; 

19 (9) Congress last enacted comprehensive re20 forms of the patent system in 2011; 

21 (10) unintended consequences of the com22 prehensive 2011 reform of patent laws are con23 tinuing to become evident, including the strategic fil24 ing of post-grant review proceedings to depress stock 

25 prices and extort settlements, the filing of repetitive 


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1 petitions for inter partes and post-grant reviews that 

2 have the effect of harassing patent owners, and the 

3 unnecessary duplication of work by the district 

4 courts of the United States and the Patent Trial 

5 and Appeal Board; 

6 (11) the Judicial Conference of the United 

7 States has made significant revisions to rules gov8 erning pleadings and discovery in the Federal Rules 

9 of Civil Procedure, which took effect in December 

10 2015; 

11 (12) the Supreme Court issued rulings in Oc12 tane Fitness, LLC v. Icon Health & Fitness, Inc., 

13 134 S.Ct. 1749 (2014) and Highmark Inc. v. Allcare 

14 Health Management System, Inc., 134 S.Ct. 1744 

15 (2014) that significantly reduced the burden on an 

16 alleged infringer to recover attorney fees from the 

17 patent owner, and increased the incidence of fees 

18 shifted to the losing party; and 

19 (13) efforts by Congress to reform the patent 

20 system without careful scrutiny create a serious risk 

21 of making it more costly and difficult for legitimate 

22 innovators to protect their patents from infringe23 ment, thereby weakening United States companies 

24 and the United States economy. 


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1 SEC. 102. INTER PARTES REVIEW. 

2 (a) CLAIM CONSTRUCTION.—Section 316(a) of title 

3 35, United States Code, is amended— 

4 (1) in paragraph (9), by inserting after ‘‘sub5 stitute claims,’’ the following: ‘‘including the stand6 ard for how substitute claims should be construed,’’; 

7 (2) in paragraph (12), by striking ‘‘; and’’ and 

8 inserting a semicolon; 

9 (3) in paragraph (13), by striking the period at 

10 the end and inserting ‘‘; and’’; and 

11 (4) by adding at the end the following new 

12 paragraph: 

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

14 chapter— 

15 ‘‘(A) each challenged claim of a patent, or 

16 claim proposed in a motion to amend, shall be 

17 construed as the claim would be construed 

18 under section 282(b) in an action to invalidate 

19 a patent, including by construing each such 

20 claim in accordance with— 

21 ‘‘(i) the ordinary and customary 

22 meaning of the claim as understood by a 

23 person having ordinary skill in the art to 

24 which the claimed invention pertains; and 

25 ‘‘(ii) the prosecution history per26 taining to the patent; and 


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1 ‘‘(B) if a court has previously construed a 

2 challenged claim of a patent or a challenged 

3 claim term in a civil action to which the patent 

4 owner was a party, the Office shall consider 

5 that claim construction.’’. 

6 (b) BURDEN OF PROOF.—Section 316(e) of title 35, 

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

8 ‘‘(e) EVIDENTIARY STANDARDS.— 

9 ‘‘(1) PRESUMPTION OF VALIDITY.—The pre10 sumption of validity under section 282(a) shall apply 

11 to a previously issued claim that is challenged dur12 ing an inter partes review under this chapter. 

13 ‘‘(2) BURDEN OF PROOF.—In an inter partes 

14 review instituted under this chapter, the petitioner 

15 shall have the burden of proving a proposition of 

16 unpatentability of a previously issued claim by clear 

17 and convincing evidence.’’. 

18 (c) STANDING.—Section 311 of title 35, United 

19 States Code, is amended by adding at the end the fol20 lowing new subsection: 

21 ‘‘(d) PERSONS THAT MAY PETITION.— 

22 ‘‘(1) DEFINITION.—In this subsection, the term 

23 ‘charged with infringement’ means a real and sub24 stantial controversy regarding infringement of a pat25 ent exists such that the petitioner would have standVerDate Sep 11 2014 05:30 Jul 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2082.IS S2082

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1 ing to bring a declaratory judgment action in Fed2 eral court. 

3 ‘‘(2) NECESSARY CONDITIONS.—A person may 

4 not file with the Office a petition to institute an 

5 inter partes review of a patent unless the person, or 

6 a real party in interest or privy of the person, has 

7 been— 

8 ‘‘(A) sued for infringement of the patent; 

9 or 

10 ‘‘(B) charged with infringement under the 

11 patent.’’. 

12 (d) LIMITATION ON REVIEWS.—Section 314(a) of 

13 title 35, United States Code, is amended to read as fol14 lows: 

15 ‘‘(a) THRESHOLD.— 

16 ‘‘(1) LIKELIHOOD OF PREVAILING.—Subject to 

17 paragraph (2), the Director may not authorize an 

18 inter partes review to be instituted unless the Direc19 tor determines that the information presented in the 

20 petition filed under section 311 and any response 

21 filed under section 313 show that there is a reason22 able likelihood that the petitioner would prevail with 

23 respect to at least one of the claims challenged in 

24 the petition. 


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1 ‘‘(2) PREVIOUS INSTITUTION.—The Director 

2 may not authorize an inter partes review to be insti3 tuted on a claim challenged in a petition if the Di4 rector has previously instituted an inter partes re5 view or post-grant review with respect to that 

6 claim.’’. 

7 (e) REVIEWABILITY OF INSTITUTION DECISIONS.— 

8 Section 314 of title 35, United States Code, is amended 

9 by striking subsection (d) and inserting the following: 

10 ‘‘(d) NO APPEAL.— 

11 ‘‘(1) NONAPPEALABLE DETERMINATIONS.— 

12 ‘‘(A) THRESHOLD DETERMINATION.—A 

13 determination by the Director on the reasonable 

14 likelihood that the petitioner will prevail under 

15 subsection (a)(1) shall be final and nonappeal16 able. 

17 ‘‘(B) DENIALS OF INSTITUTION.—A deter18 mination by the Director not to institute an 

19 inter partes review under this section shall be 

20 final and nonappealable. 

21 ‘‘(2) APPEALABLE DETERMINATIONS.—Any as22 pect of a determination by the Director to institute 

23 an inter partes review under this section, other than 

24 a determination described in paragraph (1)(A), may 


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1 be reviewed during an appeal of a final written deci2 sion issued under section 318(a).’’. 

3 (f) ELIMINATING REPETITIVE PROCEEDINGS.—Sec4 tion 315(e) of title 35, United States Code, is amended 

5 to read as follows: 

6 ‘‘(e) ESTOPPEL.— 

7 ‘‘(1) PROCEEDINGS BEFORE THE OFFICE.—A 

8 person petitioning for an inter partes review of a 

9 claim in a patent under this chapter, or the real 

10 party in interest or privy of the petitioner, may not 

11 petition for a subsequent inter partes review before 

12 the Office with respect to that patent on any ground 

13 that the petitioner raised or reasonably could have 

14 raised in the initial petition, unless, after the filing 

15 of the initial petition, the petitioner, or the real 

16 party in interest or privy of the petitioner, is 

17 charged with infringement of additional claims of 

18 the patent. 

19 ‘‘(2) CIVIL ACTIONS AND OTHER PRO20 CEEDINGS.—A person petitioning for an inter partes 

21 review of a claim in a patent under this chapter that 

22 results in an institution decision under section 314, 

23 or the real party in interest or privy of the peti24 tioner, may not assert either in a civil action arising 

25 in whole or in part under section 1338 of title 28 


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1 or in a proceeding before the International Trade 

2 Commission under section 337 of the Tariff Act of 

3 1930 (19 U.S.C. 1337) that the claim is invalid 

4 based on section 102 or 103 of this title, unless the 

5 invalidity argument is based on allegations that the 

6 claimed invention was in public use, on sale, or oth7 erwise available to the public before the effective fil8 ing date of the claimed invention.’’. 

9 (g) REAL PARTY IN INTEREST.— 

10 (1) CLARIFICATION OF DEFINITION.—Section 

11 315 of title 35, United States Code, is amended by 

12 adding at the end the following new subsection: 

13 ‘‘(f) PETITIONER.—For purposes of this chapter, a 

14 person that directly or through an affiliate, subsidiary, or 

15 proxy makes a financial contribution to the preparation 

16 for, or conduct during, an inter partes review on behalf 

17 of the petitioner shall be considered a real party in interest 

18 of the petitioner.’’. 

19 (2) DISCOVERY OF REAL PARTY IN INTER20 EST.—Section 316(a)(5) of title 35, United States 

21 Code, is amended to read as follows: 

22 ‘‘(5) setting forth standards and procedures for 

23 discovery of relevant evidence, including that such 

24 discovery shall be limited to— 


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1 ‘‘(A) the deposition of witnesses submitting 

2 affidavits or declarations; 

3 ‘‘(B) evidence identifying the petitioner’s 

4 real parties in interest; and 

5 ‘‘(C) what is otherwise necessary in the in6 terest of justice;’’. 

7 (h) PRIORITY OF FEDERAL COURT VALIDITY DE8 TERMINATIONS.— 

9 (1) IN GENERAL.—Section 315 of title 35, 

10 United States Code, as amended by subsections (f) 

11 and (g), is further amended— 

12 (A) by redesignating subsections (c) 

13 through (f) as subsections (d) through (g), re14 spectively; and 

15 (B) by inserting after subsection (b) the 

16 following new subsection: 

17 ‘‘(c) FEDERAL COURT VALIDITY DETERMINA18 TIONS.— 

19 ‘‘(1) INSTITUTION BARRED.—An inter partes 

20 review of a patent claim may not be instituted if, in 

21 a civil action arising in whole or in part under sec22 tion 1338 of title 28 or in a proceeding before the 

23 International Trade Commission under section 337 

24 of the Tariff Act of 1930 (19 U.S.C. 1337), a court 

25 has entered a final judgment— 


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1 ‘‘(A) that decides the validity of the patent 

2 claim with respect to section 102 or 103; and 

3 ‘‘(B) from which an appeal under section 

4 1295 of title 28 may be taken, or from which 

5 an appeal under section 1295 of title 28 was 

6 previously available but is no longer available. 

7 ‘‘(2) STAY OF PROCEEDINGS.— 

8 ‘‘(A) IN GENERAL.—If, in a civil action 

9 arising in whole or in part under section 1338 

10 of title 28 or in a proceeding before the Inter11 national Trade Commission under section 337 

12 of the Tariff Act of 1930 (19 U.S.C. 1337), a 

13 court has entered a final judgment that decides 

14 the validity of a patent claim with respect to 

15 section 102 or 103 and from which an appeal 

16 under section 1295 of title 28 may be taken, 

17 the Patent Trial and Appeal Board shall stay 

18 any ongoing inter partes review of that patent 

19 claim pending a final decision. 

20 ‘‘(B) TERMINATION.—If the validity of a 

21 patent claim described in subparagraph (A) is 

22 finally upheld by a court or the International 

23 Trade Commission, as applicable, the Patent 

24 Trial and Appeal Board shall terminate the 

25 inter partes review.’’. 


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1 (2) TECHNICAL AND CONFORMING AMEND2 MENTS.—Chapter 31 of title 35, United States 

3 Code, is amended— 

4 (A) in section 315(b), by striking ‘‘sub5 section (c)’’ and inserting ‘‘subsection (d)’’; 

6 (B) in section 316(a)— 

7 (i) in paragraph (11), by striking 

8 ‘‘section 315(c)’’ and inserting ‘‘section 

9 315(d)’’; and 

10 (ii) in paragraph (12), by striking 

11 ‘‘section 315(c)’’ and inserting ‘‘section 

12 315(d)’’; and 

13 (C) in section 317(a), by striking ‘‘section 

14 315(e)’’ and inserting ‘‘section 315(f)’’. 

15 SEC. 103. POST-GRANT REVIEW. 

16 (a) CLAIM CONSTRUCTION.—Section 326(a) of title 

17 35, United States Code, is amended— 

18 (1) in paragraph (9), by inserting after ‘‘sub19 stitute claims,’’ the following: ‘‘including the stand20 ard for how substitute claims should be construed,’’; 

21 (2) in paragraph (11), by striking ‘‘; and’’ and 

22 inserting a semicolon; 

23 (3) in paragraph (12), by striking the period at 

24 the end and inserting ‘‘; and’’; and 


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1 (4) by adding at the end the following new 

2 paragraph: 

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

4 chapter— 

5 ‘‘(A) each challenged claim of a patent 

6 shall be construed as the claim would be con7 strued under section 282(b) in an action to in8 validate a patent, including by construing each 

9 challenged claim of the patent in accordance 

10 with— 

11 ‘‘(i) the ordinary and customary 

12 meaning of the claim as understood by a 

13 person having ordinary skill in the art to 

14 which the claimed invention pertains; and 

15 ‘‘(ii) the prosecution history per16 taining to the patent; and 

17 ‘‘(B) if a court has previously construed a 

18 challenged claim of a patent or a challenged 

19 claim term in a civil action to which the patent 

20 owner was a party, the Office shall consider 

21 that claim construction.’’. 

22 (b) BURDEN OF PROOF.—Section 326(e) of title 35, 

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

24 ‘‘(e) EVIDENTIARY STANDARDS.— 


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1 ‘‘(1) PRESUMPTION OF VALIDITY.—The pre2 sumption of validity under section 282(a) shall apply 

3 to a previously issued claim that is challenged dur4 ing a proceeding under this chapter. 

5 ‘‘(2) BURDEN OF PROOF.—In a post-grant re6 view instituted under this chapter, the petitioner 

7 shall have the burden of proving a proposition of 

8 unpatentability of a previously issued claim by clear 

9 and convincing evidence.’’. 

10 (c) STANDING.—Section 321 of title 35, United 

11 States Code, is amended by adding at the end the fol12 lowing new subsection: 

13 ‘‘(d) PERSONS THAT MAY PETITION.— 

14 ‘‘(1) DEFINITION.—In this subsection, the term 

15 ‘charged with infringement’ means a real and sub16 stantial controversy regarding infringement of a pat17 ent exists such that the petitioner would have stand18 ing to bring a declaratory judgment action in Fed19 eral court. 

20 ‘‘(2) NECESSARY CONDITIONS.—A person may 

21 not file with the Office a petition to institute a post22 grant review of a patent unless the person, or a real 

23 party in interest or privy of the person, dem24 onstrates— 

25 ‘‘(A) a reasonable possibility of being— 


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1 ‘‘(i) sued for infringement of the pat2 ent; or 

3 ‘‘(ii) charged with infringement under 

4 the patent; or 

5 ‘‘(B) a competitive harm related to the va6 lidity of the patent.’’. 

7 (d) LIMITATION ON REVIEWS.—Section 324(a) of 

8 title 35, United States Code, is amended to read as fol9 lows: 

10 ‘‘(a) THRESHOLD.— 

11 ‘‘(1) LIKELIHOOD OF PREVAILING.—Subject to 

12 paragraph (2), the Director may not authorize a 

13 post-grant review to be instituted unless the Director 

14 determines that the information presented in the pe15 tition filed under section 321, if such information is 

16 not rebutted, would demonstrate that it is more like17 ly than not that at least one of the claims challenged 

18 in the petition is unpatentable. 

19 ‘‘(2) PREVIOUS INSTITUTION.—The Director 

20 may not authorize a post-grant review to be insti21 tuted on a claim challenged in a petition if the Di22 rector has previously instituted an inter partes re23 view or post-grant review with respect to that 

24 claim.’’. 


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1 (e) REVIEWABILITY OF INSTITUTION DECISIONS.— 

2 Section 324 of title 35, United States Code, is amended 

3 by striking subsection (e) and inserting the following: 

4 ‘‘(e) NO APPEAL.— 

5 ‘‘(1) NON-APPEALABLE DETERMINATIONS.— 

6 ‘‘(A) THRESHOLD DETERMINATION.—A 

7 determination by the Director on the likelihood 

8 that the petitioner will prevail under subsection 

9 (a)(1) shall be final and nonappealable. 

10 ‘‘(B) EXERCISE OF DISCRETION.—A deter11 mination by the Director not to institute a post12 grant review under this section shall be final 

13 and nonappealable. 

14 ‘‘(2) APPEALABLE DETERMINATIONS.—Any as15 pect of a determination by the Director to institute 

16 a post-grant review under this section, other than a 

17 determination described in paragraph (1)(A), may be 

18 reviewed during an appeal of a final written decision 

19 issued under section 328(a).’’. 

20 (f) ELIMINATING REPETITIVE PROCEEDINGS.—Sec21 tion 325(e)(1) of title 35, United States Code, is amended 

22 to read as follows: 

23 ‘‘(1) PROCEEDINGS BEFORE THE OFFICE.—A 

24 person petitioning for a post-grant review of a claim 

25 in a patent under this chapter, or the real party in 


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1 interest or privy of the petitioner, may not petition 

2 for a subsequent post-grant review before the Office 

3 with respect to that patent on any ground that the 

4 petitioner raised or reasonably could have raised in 

5 the initial petition, unless, after the filing of the ini6 tial petition, the petitioner, or the real party in in7 terest or privy of the petitioner, is charged with in8 fringement of additional claims of the patent.’’. 

9 (g) REAL PARTY IN INTEREST.— 

10 (1) CLARIFICATION OF DEFINITION.—Section 

11 325 of title 35, United States Code, is amended by 

12 adding at the end the following new subsection: 

13 ‘‘(g) REAL PARTY IN INTEREST.—For purposes of 

14 this chapter, a person that directly or through an affiliate, 

15 subsidiary, or proxy, makes a financial contribution to the 

16 preparation for, or conduct during, a post-grant review on 

17 behalf of the petitioner shall be considered a real party 

18 in interest of the petitioner.’’. 

19 (2) DISCOVERY OF REAL PARTY IN INTER20 EST.—Section 326(a)(5) of title 35, United States 

21 Code, is amended to read as follows: 

22 ‘‘(5) setting forth standards and procedures for 

23 discovery of relevant evidence, including that such 

24 discovery shall be limited to— 


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1 ‘‘(A) the deposition of witnesses submitting 

2 affidavits or declarations; 

3 ‘‘(B) evidence identifying the petitioner’s 

4 real parties in interest; and 

5 ‘‘(C) what is otherwise necessary in the in6 terest of justice;’’. 

7 (h) PRIORITY OF FEDERAL COURT VALIDITY DE8 TERMINATIONS.— 

9 (1) IN GENERAL.—Section 325 of title 35, 

10 United States Code, as amended by subsections (f) 

11 and (g), is further amended— 

12 (A) by redesignating subsections (c) 

13 through (g) as subsections (d) through (h), re14 spectively; and 

15 (B) by inserting after subsection (b) the 

16 following new subsection: 

17 ‘‘(c) FEDERAL COURT VALIDITY DETERMINA18 TIONS.— 

19 ‘‘(1) INSTITUTION BARRED.—A post-grant re20 view of a patent claim may not be instituted if, in 

21 a civil action arising in whole or in part under sec22 tion 1338 of title 28 or in a proceeding before the 

23 International Trade Commission under section 337 

24 of the Tariff Act of 1930 (19 U.S.C. 1337), a court 

25 has entered a final judgment— 


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1 ‘‘(A) that decides the validity of the patent 

2 claim with respect to section 102 or 103; and 

3 ‘‘(B) from which an appeal under section 

4 1295 of title 28 may be taken, or from which 

5 an appeal under section 1295 of title 28 was 

6 previously available but is no longer available. 

7 ‘‘(2) STAY OF PROCEEDINGS.— 

8 ‘‘(A) IN GENERAL.—If, in a civil action 

9 arising in whole or in part under section 1338 

10 of title 28 or in a proceeding before the Inter11 national Trade Commission under section 337 

12 of the Tariff Act of 1930 (19 U.S.C. 1337), a 

13 court has entered a final judgment that decides 

14 the validity of a patent claim with respect to 

15 section 102 or 103 and from which an appeal 

16 under section 1295 of title 28 may be taken, 

17 the Patent Trial and Appeal Board shall stay 

18 any ongoing post-grant review of that patent 

19 claim pending a final decision. 

20 ‘‘(B) TERMINATION.—If the validity of a 

21 patent claim described in subparagraph (A) is 

22 finally upheld by a court or the International 

23 Trade Commission, as applicable, the Patent 

24 Trial and Appeal Board shall terminate the 

25 post-grant review.’’. 


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1 (2) TECHNICAL AND CONFORMING AMEND2 MENTS.—Chapter 32 of title 35, United States 

3 Code, is amended— 

4 (A) in section 326(a)(11), by striking ‘‘sec5 tion 325(c)’’ and inserting ‘‘section 325(d)’’; 

6 and 

7 (B) in section 327(a), by striking ‘‘section 

8 325(e)’’ and inserting ‘‘section 325(f)’’. 

9 SEC. 104. COMPOSITION OF POST-GRANT REVIEW AND 

10 INTER PARTES REVIEW PANELS. 

11 Section 6(c) of title 35, United States Code, is 

12 amended to read as follows: 

13 ‘‘(c) 3-MEMBER PANELS.— 

14 ‘‘(1) IN GENERAL.—Each appeal, derivation 

15 proceeding, post-grant review, and inter partes re16 view shall be heard by at least 3 members of the 

17 Patent Trial and Appeal Board, who shall be des18 ignated by the Director. 

19 ‘‘(2) INELIGIBILITY TO HEAR REVIEW.—A 

20 member of the Patent Trial and Appeal Board who 

21 participates in the decision to institute a post-grant 

22 review or an inter partes review of a patent shall be 

23 ineligible to hear the review. 

24 ‘‘(3) REHEARINGS.—Only the Patent Trial and 

25 Appeal Board may grant rehearings.’’. 


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1 SEC. 105. REEXAMINATION OF PATENTS. 

2 (a) REQUEST FOR REEXAMINATION.—Section 302 of 

3 title 35, United States Code, is amended to read as fol4 lows: 

5 ‘‘§ 302. Request for reexamination 

6 ‘‘Any person at any time may file a request for reex7 amination by the Office of any claim of a patent on the 

8 basis of any prior art cited under the provisions of section 

9 301. The request must be in writing and must be accom10 panied by payment of a reexamination fee established by 

11 the Director pursuant to the provisions of section 41. The 

12 request must identify all real parties in interest and certify 

13 that reexamination is not barred under section 303(d). 

14 The request must set forth the pertinency and manner of 

15 applying cited prior art to every claim for which reexam16 ination is requested. Unless the requesting person is the 

17 owner of the patent, the Director promptly will send a 

18 copy of the request to the owner of record of the patent.’’. 

19 (b) REEXAMINATION BARRED BY CIVIL ACTION.— 

20 Section 303 of title 35, United States Code, is amended 

21 by adding at the end the following new subsection: 

22 ‘‘(d) An ex parte reexamination may not be instituted 

23 if the request for reexamination is filed more than 1 year 

24 after the date on which the requester or a real party in 

25 interest or privy of the requester is served with a com26 plaint alleging infringement of the patent.’’. 


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1 SEC. 106. RESTORATION OF PATENTS AS PROPERTY 

2 RIGHTS. 

3 Section 283 of title 35, United States Code, is 

4 amended— 

5 (1) by striking ‘‘The several courts’’ and insert6 ing the following: 

7 ‘‘(a) IN GENERAL.—The several courts’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(b) INJUNCTION.—Upon a finding by a court of in10 fringement of a patent not proven invalid or unenforce11 able, the court shall presume that— 

12 ‘‘(1) further infringement of the patent would 

13 cause irreparable injury; and 

14 ‘‘(2) remedies available at law are inadequate to 

15 compensate for that injury.’’. 

16 SEC. 107. ELIMINATION OF USPTO FEE DIVERSION. 

17 (a) FUNDING.—Section 42 of title 35, United States 

18 Code, is amended— 

19 (1) in subsection (a), by striking ‘‘All fees’’ and 

20 inserting ‘‘FEES FOR SERVICE BY PTO.—All fees’’; 

21 (2) in subsection (b)— 

22 (A) by striking ‘‘All fees’’ and inserting 

23 ‘‘ ‘INNOVATION PROMOTION FUND.—All fees’ ’’; 

24 and 

25 (B) by striking ‘‘Patent and Trademark 

26 Office Appropriation Account’’ and inserting 


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1 ‘‘United States Patent and Trademark Office 

2 Innovation Promotion Fund’’; 

3 (3) in subsection (c)— 

4 (A) by striking ‘‘(c)(1)’’ and all that fol5 lows through the end of paragraph (1) and in6 serting the following: ‘‘(c) COLLECTION OF

7 FUNDS FOR PTO ACTIVITIES.— 

8 ‘‘(1) IN GENERAL.—Fees authorized in this 

9 title or any other Act to be charged or established 

10 by the Director shall be collected by the Director 

11 and shall be available to the Director until expended 

12 to carry out the activities of the Patent and Trade13 mark Office.’’; 

14 (B) by striking paragraph (2); 

15 (C) by striking ‘‘(3)(A) Any’’ and inserting 

16 the following: ‘‘(2) USE OF FEES.— 

17 ‘‘(A) PATENT FEES.—Any’’; and 

18 (D) by striking ‘‘(B) Any fees that are col19 lected under section 31 of the Trademark Act 

20 of 1946’’ and inserting the following: 

21 ‘‘(B) TRADEMARK FEES.—Any fees that 

22 are collected under section 31 of the Trademark 

23 Act of 1946 (as defined in subsection (d)) (15 

24 U.S.C. 1113)’’; 


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1 (4) by redesignating subsections (d) and (e) as 

2 subsections (e) and (f), respectively; 

3 (5) by inserting after subsection (c) the fol4 lowing new subsection: 

5 ‘‘(d) REVOLVING FUND.— 

6 ‘‘(1) DEFINITIONS.—In this subsection— 

7 ‘‘(A) the term ‘Fund’ means the United 

8 States Patent and Trademark Office Innovation 

9 Promotion Fund established under paragraph 

10 (2); and 

11 ‘‘(B) the term ‘Trademark Act of 1946’ 

12 means the Act entitled ‘An Act to provide for 

13 the registration and protection of trademarks 

14 used in commerce, to carry out the provisions 

15 of certain international conventions, and for 

16 other purposes’, approved July 5, 1946 (15 

17 U.S.C. 1051 et seq.) (commonly referred to as 

18 the ‘Trademark Act of 1946’ or the ‘Lanham 

19 Act’). 

20 ‘‘(2) ESTABLISHMENT.—There is established in 

21 the Treasury a revolving fund to be known as the 

22 ‘United States Patent and Trademark Office Inno23 vation Promotion Fund’. 


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1 ‘‘(3) DERIVATION OF RESOURCES.—There shall 

2 be deposited into the Fund any fees collected 

3 under— 

4 ‘‘(A) this title; or 

5 ‘‘(B) the Trademark Act of 1946. 

6 ‘‘(4) EXPENSES.—Amounts deposited into the 

7 Fund under paragraph (3) shall be available, with8 out fiscal year limitation, to cover— 

9 ‘‘(A) all expenses to the extent consistent 

10 with the limitation on the use of fees set forth 

11 in subsection (c), including all administrative 

12 and operating expenses, determined in the dis13 cretion of the Director to be ordinary and rea14 sonable, incurred by the Director for the contin15 ued operation of all services, programs, activi16 ties, and duties of the Office relating to patents 

17 and trademarks, as such services, programs, ac18 tivities, and duties are described under— 

19 ‘‘(i) this title; and 

20 ‘‘(ii) the Trademark Act of 1946; and 

21 ‘‘(B) all expenses incurred pursuant to any 

22 obligation, representation, or other commitment 

23 of the Office.’’; 


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1 (6) in subsection (e), as redesignated, by strik2 ing ‘‘The Director’’ and inserting ‘‘REFUNDS.—The 

3 Director’’; and 

4 (7) in subsection (f), as redesignated, by strik5 ing ‘‘The Secretary’’ and inserting ‘‘REPORT.—The 

6 Secretary’’. 

7 (b) EFFECTIVE DATE; TRANSFER FROM AND TERMI8 NATION OF OBSOLETE FUNDS.— 

9 (1) EFFECTIVE DATE.—The amendments made 

10 by subsection (a) shall take effect on the first day 

11 of the first fiscal year that begins on or after the 

12 date of the enactment of this Act. 

13 (2) REMAINING BALANCES.—On the effective 

14 date described in paragraph (1), there shall be de15 posited in the United States Patent and Trademark 

16 Office Innovation Promotion Fund established under 

17 section 42(d)(2) of title 35, United States Code (as 

18 added by subsection (a)), any available unobligated 

19 balances remaining in the Patent and Trademark 

20 Office Appropriation Account, and in the Patent and 

21 Trademark Fee Reserve Fund established under sec22 tion 42(c)(2) of title 35, United States Code, as in 

23 effect on the date before the effective date. 

24 (3) TERMINATION OF RESERVE FUND.—Upon 

25 the payment of all obligated amounts in the Patent 


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1 and Trademark Fee Reserve Fund under paragraph 

2 (2), the Patent and Trademark Fee Reserve Fund 

3 shall be terminated. 

4 SEC. 108. INSTITUTIONS OF HIGHER EDUCATION. 

5 Section 123(d) of title 35, United States Code, is 

6 amended to read as follows: 

7 ‘‘(d) INSTITUTIONS OF HIGHER EDUCATION.—For 

8 purposes of this section, a micro entity shall include an 

9 applicant who certifies that— 

10 ‘‘(1) the applicant’s employer, from which the 

11 applicant obtains the majority of the applicant’s in12 come, is an institution of higher education as de13 fined in section 101(a) of the Higher Education Act 

14 of 1965 (20 U.S.C. 1001(a)); 

15 ‘‘(2) the applicant has assigned, granted, con16 veyed, or is under an obligation by contract or law, 

17 to assign, grant, or convey, a license or other owner18 ship interest in the particular applications to such 

19 an institution of higher education; 

20 ‘‘(3) the applicant is such an institution of 

21 higher education; or 

22 ‘‘(4) the applicant is an organization described 

23 in section 501(c)(3) of the Internal Revenue Code of 

24 1986 and exempt from taxation under section 

25 501(a) of such Code that holds title to patents and 


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1 patent applications on behalf of such an institution 

2 of higher education for the purpose of facilitating 

3 commercialization of the technologies of the patents 

4 and patent applications.’’. 

5 SEC. 109. ASSISTING SMALL BUSINESSES IN THE U.S. PAT6 ENT SYSTEM. 

7 (a) DEFINITION.—In this section, the term ‘‘small 

8 business concern’’ has the meaning given the term in sec9 tion 3 of the Small Business Act (15 U.S.C. 632). 

10 (b) SMALL BUSINESS ADMINISTRATION REPORT.— 

11 Not later than 1 year after the date of the enactment of 

12 this Act, the Small Business Administration, using exist13 ing resources, shall submit to the Committee on Small 

14 Business and Entrepreneurship of the Senate and the 

15 Committee on Small Business of the House of Representa16 tives a report analyzing the impact of— 

17 (1) patent ownership by small business con18 cerns; and 

19 (2) civil actions against small business concerns 

20 arising under title 35, United States Code, relating 

21 to patent infringement. 

22 (c) EXPANSION OF PATENT PILOT PROGRAM IN CER23 TAIN DISTRICT COURTS.— 

24 (1) IN GENERAL.—Not later than 180 days 

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1 rector of the Administrative Office of the United 

2 States Courts shall designate not fewer than 6 of the 

3 district courts of the United States that are partici4 pating in the patent cases pilot program established 

5 under section 1 of Public Law 111–349 (28 U.S.C. 

6 137 note) for the purpose of expanding that pro7 gram to address special issues raised in patent in8 fringement suits against individuals or small busi9 ness concerns. 

10 (2) PROCEDURES FOR SMALL BUSINESSES.— 

11 Not later than 2 years after the date of the enact12 ment of this Act, each district court designated 

13 under paragraph (1) shall develop procedures for ex14 pediting cases in which an individual or small busi15 ness concern is accused of patent infringement. 

16 (3) PARTICIPATING JUDGES.— 

17 (A) IN GENERAL.—In each district court 

18 designated under paragraph (1), each district 

19 court judge participating in the patent cases 

20 pilot program established under section 1 of 

21 Public Law 111–349 may appoint 1 additional 

22 law clerk or secretary in excess of any other 

23 limitation on the number of such employees. 

24 (B) EDUCATION AND TRAINING.—The 

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1 sources, shall prepare educational and training 

2 materials to assist district court judges de3 scribed in subparagraph (A) in developing ex4 pertise in patent and plant variety protection 

5 cases. 

6 (4) FUNDS.—There are authorized to be appro7 priated such sums as may be necessary to carry out 

8 paragraph (3)(A). 

9 (d) FREE ONLINE AVAILABILITY OF PUBLIC SEARCH

10 FACILITY MATERIALS.—Section 41(i) of title 35, United 

11 States Code, is amended by adding at the end the fol12 lowing new paragraph: 

13 ‘‘(5) FREE ONLINE AVAILABILITY OF PUBLIC

14 SEARCH FACILITY MATERIALS.—The Director shall 

15 make available online and at no charge all patent 

16 and trademark information that is available at the 

17 Public Search Facility of the Office located in Alex18 andria, Virginia, including, except to the extent that 

19 licenses with third-party contractors would make 

20 such provision financially unviable— 

21 ‘‘(A) search tools and databases; 

22 ‘‘(B) informational materials; and 

23 ‘‘(C) training classes and materials.’’. 


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1 TITLE II—TARGETING ROGUE 

2 AND OPAQUE LETTERS 

3 SEC. 201. DEFINITIONS. 

4 In this title: 

5 (1) BAD FAITH.—The term ‘‘bad faith’’ means, 

6 with respect to section 202(a), that the sender— 

7 (A) made knowingly false or knowingly 

8 misleading statements, representations, or omis9 sions; 

10 (B) made statements, representations, or 

11 omissions with reckless indifference as to the 

12 false or misleading nature of such statements, 

13 representations, or omissions; or 

14 (C) made statements, representations, or 

15 omissions with awareness of the high prob16 ability of the statements, representations, or 

17 omissions to deceive and the sender inten18 tionally avoided the truth. 

19 (2) COMMISSION.—The term ‘‘Commission’’ 

20 means the Federal Trade Commission. 

21 (3) FINAL DETERMINATION.—The term ‘‘final 

22 determination’’ means, with respect to the invalidity 

23 or unenforceability of a patent, that the invalidity or 

24 unenforceability has been determined by a court of 

25 the United States or the United States Patent and 


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1 Trademark Office in a final decision that is 

2 unappealable or for which any opportunity for ap3 peal is no longer available. 

4 SEC. 202. UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN 

5 CONNECTION WITH THE ASSERTION OF A 

6 UNITED STATES PATENT. 

7 (a) IN GENERAL.—It shall be an unfair or deceptive 

8 act or practice within the meaning of section 5(a)(1) of 

9 the Federal Trade Commission Act (15 U.S.C. 45(a)(1)) 

10 for a person, in connection with the assertion of a United 

11 States patent, to engage in a pattern or practice of send12 ing written communications that state or represent that 

13 the recipients are or may be infringing, or have or may 

14 have infringed, the patent and bear liability or owe com15 pensation to another, if— 

16 (1) the sender of the communications, in bad 

17 faith, states or represents in the communications 

18 that— 

19 (A) the sender is a person with the right 

20 to license or enforce the patent at the time the 

21 communications are sent, and the sender is not 

22 a person with such a right; 

23 (B) a civil action asserting a claim of in24 fringement of the patent has been filed against 

25 the recipient; 


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1 (C) a civil action asserting a claim of in2 fringement of the patent has been filed against 

3 other persons; 

4 (D) legal action for infringement of the 

5 patent will be taken against the recipient; 

6 (E) the sender is the exclusive licensee of 

7 the patent asserted in the communications; 

8 (F) persons other than the recipient pur9 chased a license for the patent asserted in the 

10 communications; 

11 (G) persons other than the recipient pur12 chased a license, and the sender does not dis13 close that such license is unrelated to the al14 leged infringement or the patent asserted in the 

15 communications; 

16 (H) an investigation of the recipient’s al17 leged infringement occurred; or 

18 (I) the sender or an affiliate of the sender 

19 previously filed a civil action asserting a claim 

20 of infringement of the patent based on the ac21 tivity that is the subject of the written commu22 nication when the sender knew such activity 

23 was held, in a final determination, not to in24 fringe the patent; 


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1 (2) the sender of the communications, in bad 

2 faith, seeks compensation for— 

3 (A) a patent claim that has been held to 

4 be unenforceable due to inequitable conduct, in5 valid, or otherwise unenforceable against the re6 cipient, in a final determination; 

7 (B) activities undertaken by the recipient 

8 after expiration of the patent asserted in the 

9 communications; or 

10 (C) activity of the recipient that the sender 

11 knew was authorized, with respect to the patent 

12 claim or claims that are the subject of the com13 munications, by a person with the right to li14 cense the patent; or 

15 (3) the sender of the communications, in bad 

16 faith, fails to include— 

17 (A) the identity of the person asserting a 

18 right to license the patent to, or enforce the 

19 patent against, the recipient, including the iden20 tity of any parent entity and the ultimate par21 ent entity of such person, unless such person is 

22 a public company and the name of the public 

23 company is identified; 


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1 (B) an identification of at least one patent 

2 issued by the United States Patent and Trade3 mark Office alleged to have been infringed; 

4 (C) an identification, to the extent reason5 able under the circumstances, of at least one 

6 product, service, or other activity of the recipi7 ent that is alleged to infringe the identified pat8 ent; 

9 (D) a description, to the extent reasonable 

10 under the circumstances, of how the product, 

11 service, or other activity of the recipient in12 fringes an identified patent and patent claim; or 

13 (E) a name and contact information for a 

14 person the recipient may contact about the as15 sertions or claims relating to the patent con16 tained in the communications. 

17 (b) AFFIRMATIVE DEFENSE.—With respect to sub18 section (a), there shall be an affirmative defense that 

19 statements, representations, or omissions were not made 

20 in bad faith (as defined in subparagraphs (B) and (C) of 

21 section 201(1)) if the sender can demonstrate that such 

22 statements, representations, or omissions were mistakes 

23 made in good faith. Evidence that the sender in the usual 

24 course of business sends written communications that do 

25 not violate the provisions of this title shall be sufficient 


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1 to demonstrate good faith. Good faith may also be dem2 onstrated by other evidence. 

3 (c) RULE OF CONSTRUCTION.—For purposes of sec4 tions 203 and 204, the commission of an act or practice 

5 that is declared under this section to be an unfair or de6 ceptive act or practice within the meaning of section 

7 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 

8 45(a)(1)) shall be considered to be a violation of this sec9 tion. 

10 SEC. 203. ENFORCEMENT BY FEDERAL TRADE COMMIS11 SION. 

12 (a) VIOLATION OF RULE.—A violation of section 202 

13 shall be treated as a violation of a rule defining an unfair 

14 or deceptive act or practice prescribed under section 

15 18(a)(1)(B) of the Federal Trade Commission Act (15 

16 U.S.C. 57a(a)(1)(B)). 

17 (b) POWERS OF COMMISSION.—The Commission 

18 shall enforce this title in the same manner, by the same 

19 means, and with the same jurisdiction, powers, and duties 

20 as though all applicable terms and provisions of the Fed21 eral Trade Commission Act (15 U.S.C. 41 et seq.) were 

22 incorporated into and made a part of this title. Any person 

23 who violates section 202 shall be subject to the penalties 

24 and entitled to the privileges and immunities provided in 

25 the Federal Trade Commission Act. 


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1 (c) EFFECT ON OTHER LAWS.—Nothing in this title 

2 shall be construed in any way to limit or affect the author3 ity of the Commission under any other provision of law. 

4 SEC. 204. PREEMPTION OF STATE LAWS ON PATENT DE5 MAND LETTERS AND ENFORCEMENT BY 

6 STATE ATTORNEYS GENERAL. 

7 (a) PREEMPTION.— 

8 (1) IN GENERAL.—This title preempts any law, 

9 rule, regulation, requirement, standard, or other pro10 vision having the force and effect of law of any 

11 State, or political subdivision of a State, expressly 

12 relating to the transmission or contents of commu13 nications relating to the assertion of patent rights. 

14 (2) EFFECT ON OTHER STATE LAWS.—Except 

15 as provided in paragraph (1), this title shall not be 

16 construed to preempt or limit any provision of any 

17 State law, including any State consumer protection 

18 law, any State law relating to acts of fraud or decep19 tion, and any State trespass, contract, or tort law. 

20 (b) ENFORCEMENT BY STATE ATTORNEYS GEN21 ERAL.— 

22 (1) IN GENERAL.—In any case in which the at23 torney general of a State has reason to believe that 

24 an interest of the residents of that State has been 

25 adversely affected by any person who violates section 


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1 202, the attorney general of the State may bring a 

2 civil action on behalf of such residents of the State 

3 in a district court of the United States of appro4 priate jurisdiction— 

5 (A) to enjoin further such violation by the 

6 defendant; or 

7 (B) to obtain civil penalties on behalf of 

8 recipients who suffered actual damages as a re9 sult of such violation. 

10 (2) MAXIMUM CIVIL PENALTY.—Notwith11 standing the number of actions which may be 

12 brought against a person under this subsection, a 

13 person may not be liable for a total of more than 

14 $5,000,000 for a series of related violations of sec15 tion 202. 

16 (3) INTERVENTION BY THE FTC.— 

17 (A) NOTICE AND INTERVENTION.—The at18 torney general of a State shall provide prior 

19 written notice of any action under paragraph 

20 (1) to the Commission and provide the Commis21 sion with a copy of the complaint in the action, 

22 except in any case in which such prior notice is 

23 not feasible, in which case the attorney general 

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1 tuting such action. The Commission shall have 

2 the right— 

3 (i) to intervene in the action; 

4 (ii) upon so intervening, to be heard 

5 on all matters arising therein; and 

6 (iii) to file petitions for appeal. 

7 (B) LIMITATION ON STATE ACTION WHILE

8 FEDERAL ACTION IS PENDING.—If the Commis9 sion has instituted a civil action for violation of 

10 section 202, no State attorney general may 

11 bring an action under this subsection during 

12 the pendency of that action against any defend13 ant named in the complaint of the Commission 

14 for any violation of such section alleged in the 

15 complaint. 

16 (4) CONSTRUCTION.—For purposes of bringing 

17 any civil action under paragraph (1), nothing in this 

18 title shall be construed to prevent the attorney gen19 eral of a State from exercising the powers conferred 

20 on the attorney general by the laws of that State 

21 to— 

22 (A) conduct investigations; 

23 (B) administer oaths or affirmations; or 


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1 (C) compel the attendance of witnesses or 

2 the production of documentary and other evi3 dence. 

Æ 


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