objectively reasonable apprehension of suit 
on such patent, and 
‘‘(ii) identifying with particularity 
each claim of the patent, each product or 
process that the patent owner alleges in-
fringes the patent, and the relationship of 
such product or process to such claim, 
the infringer, after a reasonable opportunity to 
investigate, thereafter performed one or more of 
the alleged acts of infringement; 
‘‘(B) the infringer intentionally copied the 
patented invention with knowledge that it was 
patented; or 
‘‘(C) after having been found by a court to 
have infringed that patent, the infringer en-
gaged in conduct that was not colorably dif-
ferent from the conduct previously found to 
have infringed the patent, and which resulted in 
a separate finding of infringement of the same 
patent. 
‘‘(3) LIMITATIONS
ON
WILLFULNESS.—(A) A 
court may not find that an infringer has willfully in-
fringed a patent under paragraph (2) for any period 
of time during which the infringer had an informed 
good faith belief that the patent was invalid or unen-
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forceable, or would not be infringed by the conduct 
later shown to constitute infringement of the patent. 
‘‘(B) An informed good faith belief within the 
meaning of subparagraph (A) may be established 
by— 
‘‘(i) reasonable reliance on advice of coun-
sel; 
‘‘(ii) evidence that the infringer sought to 
modify its conduct to avoid infringement once it 
had discovered the patent; or 
‘‘(iii) other evidence a court may find suffi-
cient to establish such good faith belief. 
‘‘(C) The decision of the infringer not to 
present evidence of advice of counsel is not relevant 
to a determination of willful infringement under 
paragraph (2). 
‘‘(4) LIMITATION
ON
PLEADING.—Before the 
date on which a court determines that the patent in 
suit is not invalid, is enforceable, and has been in-
fringed by the infringer, a patentee may not plead 
and a court may not determine that an infringer has 
willfully infringed a patent. The court’s determina-
tion of an infringer’s willfulness shall be made with-
out a jury.’’; and 
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(3) in the third undesignated paragraph, by 
striking ‘‘The court’’ and inserting ‘‘(c) EXPERT 
TESTIMONY.—The court’’. 
(b) DEFENSE TO INFRINGEMENT BASED ON EAR-
LIER INVENTOR.—Section 273 of title 35, United States 
Code, is amended— 
(1) in subsection (a)— 
(A) in paragraph (1)— 
(i) by striking ‘‘of a method’’; and 
(ii) by striking ‘‘review period;’’ and 
inserting ‘‘review period; and’’; 
(B) in paragraph (2)(B), by striking the 
semicolon at the end and inserting a period; 
and 
(C) by striking paragraphs (3) and (4); 
(2) in subsection (b)— 
(A) in paragraph (1)— 
(i) by striking ‘‘for a method’’; and 
(ii) by striking ‘‘at least 1 year before 
the effective filing date of such patent, 
and’’ and all that follows through the pe-
riod and inserting ‘‘and commercially used, 
or made substantial preparations for com-
mercial use of, the subject matter before 
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the effective filing date of the claimed in-
vention.’’; 
(B) in paragraph (2)— 
(i) by striking ‘‘The sale or other dis-
position of a useful end result produced by 
a patented method’’ and inserting ‘‘The 
sale or other disposition of subject matter 
that qualifies for the defense set forth in 
this section’’; and 
(ii) by striking ‘‘a defense under this 
section with respect to that useful end re-
sult’’ and inserting ‘‘such defense’’; and 
(C) in paragraph (3)— 
(i) by striking subparagraph (A); and 
(ii) by redesignating subparagraphs 
(B) and (C) as subparagraphs (A) and 
(B), respectively; 
(3) in paragraph (7), by striking ‘‘of the pat-
ent’’ and inserting ‘‘of the claimed invention’’; and 
(4) by amending the heading to read as follows: 
‘‘§ 273. Special defenses to and exemptions from in-
fringement’’. 
(c) TABLE OF SECTIONS.—The item relating to sec-
tion 273 in the table of sections for chapter 28 is amended 
to read as follows: 
‘‘273. Special defenses to and exemptions from infringement.’’. 
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(d) EFFECTIVE DATE.—The amendments made by 
this section shall apply to any civil action commenced on 
or after the date of enactment of this Act. 
SEC. 6. POST-GRANT PROCEDURES AND OTHER QUALITY 
ENHANCEMENTS. 
(a) REEXAMINATION.—Section 303(a) is amended to 
read as follows: 
‘‘(a) Within 3 months after the owner of a patent 
files a request for reexamination under section 302, the 
Director shall determine whether a substantial new ques-
tion of patentability affecting any claim of the patent con-
cerned is raised by the request, with or without consider-
ation of other patents or printed publications. On the Di-
rector’s own initiative, and at any time, the Director may 
determine whether a substantial new question of patent-
ability is raised by patents and publications discovered by 
the Director, is cited under section 301, or is cited by any 
person other than the owner of the patent under section 
302 or section 311. The existence of a substantial new 
question of patentability is not precluded by the fact that 
a patent or printed publication was previously cited by or 
to the Office or considered by the Office.’’. 
(b) REEXAMINATION.—Section 315(c) is amended by 
striking ‘‘or could have raised’’. 
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(c) REEXAMINATION PROHIBITED AFTER DISTRICT 
COURT DECISION.—Section 317(b) is amended— 
(1) in the subsection heading, by striking 
‘‘FINAL DECISION’’ and inserting ‘‘DISTRICT COURT 
DECISION’’; and 
(2) by striking ‘‘Once a final decision has been 
entered’’ and inserting ‘‘Once the judgment of the 
district court has been entered’’. 
(d) EFFECTIVE DATES.—Notwithstanding any other 
provision of law, sections 311 through 318 of title 35, 
United States Code, as amended by this Act, shall apply 
to any patent that issues before, on, or after the date of 
enactment of this Act from an original application filed 
on any date. 
(e) POST-GRANT OPPOSITION PROCEDURES.— 
(1) IN GENERAL.—Part III is amended by add-
ing at the end the following new chapter: 
‘‘CHAPTER 32—POST-GRANT REVIEW 
PROCEDURES 
‘‘Sec. 
‘‘321. Petition for post-grant review. 
‘‘322. Timing and bases of petition. 
‘‘323. Requirements of petition. 
‘‘324. Prohibited filings. 
‘‘325. Submission of additional information; showing of sufficient grounds. 
‘‘326. Conduct of post-grant review proceedings. 
‘‘327. Patent owner response. 
‘‘328. Proof and evidentiary standards. 
‘‘329. Amendment of the patent. 
‘‘330. Decision of the Board. 
‘‘331. Effect of decision. 
‘‘332. Relationship to other pending proceedings. 
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