II 

117TH CONGRESS 

2D SESSION S. 3772 

To amend title 35, United States Code, to limit foreign interference with 

respect to the right to file and maintain a patent infringement claim, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 8 (legislative day, MARCH 7), 2022 

Mr. TILLIS (for himself, Mr. COONS, Mr. COTTON, Ms. HIRONO, and Mr. 

SCOTT of Florida) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL 

To amend title 35, United States Code, to limit foreign 

interference with respect to the right to file and maintain 

a patent infringement claim, and for other purposes. 

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. 

4 This Act may be cited as the ‘‘Defending American 

5 Courts Act’’. 

6 SEC. 2. LIMITING FOREIGN INTERFERENCE. 

7 (a) IN GENERAL.—Chapter 28 of title 35, United 

8 States Code, is amended by adding at the end the fol9 lowing: 


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1 ‘‘§ 274. Foreign interference 

2 ‘‘(a) DEFINITION.—In this section, the term ‘anti3 suit injunction’ means an injunction issued by a foreign 

4 tribunal that purports to restrict the rights of a person 

5 to file or maintain— 

6 ‘‘(1) a claim of infringement of any claim of a 

7 United States patent in a tribunal of the United 

8 States, including— 

9 ‘‘(A) in a civil action arising in whole or in 

10 part under section 1338 of title 28; or 

11 ‘‘(B) in a proceeding before the United 

12 States International Trade Commission pursu13 ant to section 337 of the Tariff Act of 1930 (19 

14 U.S.C. 1337); or 

15 ‘‘(2) any appeal from a civil action or pro16 ceeding described in paragraph (1), including any 

17 appeal arising under paragraph (1) or (6) of section 

18 1295(a) of title 28. 

19 ‘‘(b) CIVIL ACTION PRESUMPTIONS.—Upon a finding 

20 of infringement of a patent under section 271 in a civil 

21 action against any person that has asserted an anti-suit 

22 injunction in any tribunal of the United States seeking 

23 to restrict the claim of infringement of the patent on the 

24 basis of the anti-suit injunction, the court shall presume 

25 that— 


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1 ‘‘(1) the infringement is willful when deter2 mining whether to increase damages under section 

3 284; and 

4 ‘‘(2) the action is exceptional when determining 

5 whether to award attorney fees under section 285. 

6 ‘‘(c) PATENT TRIAL AND APPEAL BOARD.—In deter7 mining whether to institute a review under chapter 31 or 

8 32 with respect to a patent, the Director shall decline to 

9 institute such a review if the petitioner, real party in inter10 est, or privy of the petitioner has asserted an anti-suit in11 junction in any tribunal of the United States seeking to 

12 restrict a claim for infringement of the patent on the basis 

13 of the anti-suit injunction. 

14 ‘‘(d) CONSENT OR PRIOR AGREEMENT.—Neither 

15 subsection (b) nor (c) shall apply if— 

16 ‘‘(1) the person subject to the applicable anti17 suit injunction consents to be bound by the anti-suit 

18 injunction; or 

19 ‘‘(2) the applicable anti-suit injunction was 

20 issued to enforce a contractual agreement between 

21 the parties to submit disputes concerning the patent 

22 that is the subject of the anti-suit injunction to reso23 lution by a specified court or arbitral tribunal.’’. 

24 (b) TABLE OF SECTIONS AMENDMENT.—The table of 

25 sections for chapter 28 of title 35, United States Code, 


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1 is amended by inserting after the item relating to section 

2 273 the following: 

‘‘274. Foreign interference.’’. 

3 SEC. 3. STUDY ON PATENTS AND ANTI-SUIT INJUNCTIONS. 

4 (a) STUDY REQUIRED.—The Under Secretary of 

5 Commerce for Intellectual Property and Director of the 

6 United States Patent and Trademark Office (referred to 

7 in this section as the ‘‘Director’’), in consultation with the 

8 head of any other appropriate agency, shall conduct a 

9 study that examines— 

10 (1) the importance of patents to the techno11 logical leadership of the United States in critical and 

12 emerging technologies, including by incentivizing re13 search and development in innovation and standards 

14 development in the United States; and 

15 (2) the harms resulting from anti-suit injunc16 tions, as that term is defined in section 274(a) of 

17 title 35, United States Code, as added by section 2 

18 of this Act. 

19 (b) REPORT.—Not later than 1 year after the date 

20 of enactment of this Act, the Director shall submit to the 

21 Committee on the Judiciary of the Senate and the Com22 mittee on the Judiciary of the House of Representatives 

23 a report on the results of the study conducted under sub24 section (a). 

Æ 


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