I 
115TH CONGRESS 
2D SESSION 
H. R. 6370 
To provide that certain bad faith communications in connection with the 
assertion of a United States patent are unfair or deceptive acts or 
practices, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 13, 2018 
Mr. BURGESS (for himself and Ms. KAPTUR) introduced the following bill; 
which was referred to the Committee on Energy and Commerce 
A BILL 
To provide that certain bad faith communications in connec-
tion with the assertion of a United States patent are 
unfair or deceptive acts or practices, and for other pur-
poses. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Targeting Rogue and 
Opaque Letters Act of 2018’’. 
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SEC. 2. UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN 
CONNECTION WITH THE ASSERTION OF A 
UNITED STATES PATENT. 
(a) IN GENERAL.—It shall be an unfair or deceptive 
act or practice within the meaning of section 5(a)(1) of 
the Federal Trade Commission Act (15 U.S.C. 45(a)(1)) 
for a person, in connection with the assertion of a United 
States patent, to engage in a pattern or practice of send-
ing written communications that state or represent that 
the recipients are or may be infringing, or have or may 
have infringed, the patent and bear liability or owe com-
pensation to another, if— 
(1) the sender of the communications, in bad 
faith, states or represents in the communications 
that— 
(A) the sender is a person with the right 
to license or enforce the patent at the time the 
communications are sent, and the sender is not 
a person with such a right; 
(B) a civil action asserting a claim of in-
fringement of the patent has been filed against 
the recipient; 
(C) a civil action asserting a claim of in-
fringement of the patent has been filed against 
other persons; 
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(D) legal action for infringement of the 
patent will be taken against the recipient; 
(E) the sender is the exclusive licensee of 
the patent asserted in the communications; 
(F) persons other than the recipient pur-
chased a license for the patent asserted in the 
communications; 
(G) persons other than the recipient pur-
chased a license, and the sender does not dis-
close that such license is unrelated to the al-
leged infringement or the patent asserted in the 
communications; 
(H) an investigation of the recipient’s al-
leged infringement occurred; or 
(I) the sender or an affiliate of the sender 
previously filed a civil action asserting a claim 
of infringement of the patent based on the ac-
tivity that is the subject of the written commu-
nication when the sender knew such activity 
was held, in a final determination, not to in-
fringe the patent; 
(2) the sender of the communications, in bad 
faith, seeks compensation for— 
(A) a patent claim that has been held to 
be unenforceable due to inequitable conduct, in-
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valid, or otherwise unenforceable against the re-
cipient, in a final determination; 
(B) activities undertaken by the recipient 
after expiration of the patent asserted in the 
communications; or 
(C) activity of the recipient that the sender 
knew was authorized, with respect to the patent 
claim or claims that are the subject of the com-
munications, by a person with the right to li-
cense the patent; or 
(3) the sender of the communications, in bad 
faith, fails to include— 
(A) the identity of the person asserting a 
right to license the patent to, or enforce the 
patent against, the recipient, including the iden-
tity of any parent entity and the ultimate par-
ent entity of such person, unless such person is 
a public company and the name of the public 
company is identified; 
(B) an identification of at least one patent 
issued by the United States Patent and Trade-
mark Office alleged to have been infringed; 
(C) an identification, to the extent reason-
able under the circumstances, of at least one 
product, service, or other activity of the recipi-
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ent that is alleged to infringe the identified pat-
ent; 
(D) a description, to the extent reasonable 
under the circumstances, of how the product, 
service, or other activity of the recipient in-
fringes an identified patent and patent claim; or 
(E) a name and contact information for a 
person the recipient may contact about the as-
sertions or claims relating to the patent con-
tained in the communications. 
(b) AFFIRMATIVE DEFENSE.—With respect to sub-
section (a), there shall be an affirmative defense that 
statements, representations, or omissions were not made 
in bad faith (as defined in subparagraphs (B) and (C) of 
section 5(1)) if the sender can demonstrate that such 
statements, representations, or omissions were mistakes 
made in good faith, which may be demonstrated by a pre-
ponderance of evidence that the violation was not inten-
tional and resulted from a bona fide error notwithstanding 
the maintenance of procedures reasonably adapted to 
avoid any such error. 
(c) RULE OF CONSTRUCTION.—For purposes of sec-
tions 3 and 4, the commission of an act or practice that 
is declared under this section to be an unfair or deceptive 
act or practice within the meaning of section 5(a)(1) of 
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the Federal Trade Commission Act (15 U.S.C. 45(a)(1)) 
shall be considered to be a violation of this section. 
SEC. 3. ENFORCEMENT BY FEDERAL TRADE COMMISSION. 
(a) VIOLATION OF RULE.—A violation of section 2 
shall be treated as a violation of a rule defining an unfair 
or deceptive act or practice prescribed under section 
18(a)(1)(B) of the Federal Trade Commission Act (15 
U.S.C. 57a(a)(1)(B)). 
(b) POWERS
OF COMMISSION.—The Commission 
shall enforce this Act in the same manner, by the same 
means, and with the same jurisdiction, powers, and duties 
as though all applicable terms and provisions of the Fed-
eral Trade Commission Act (15 U.S.C. 41 et seq.) were 
incorporated into and made a part of this Act. Any person 
who violates section 2 shall be subject to the penalties and 
entitled to the privileges and immunities provided in the 
Federal Trade Commission Act. 
(c) EFFECT ON OTHER LAWS.—Nothing in this Act 
shall be construed in any way to limit or affect the author-
ity of the Commission under any other provision of law. 
SEC. 4. PREEMPTION OF STATE LAWS ON PATENT DEMAND 
LETTERS AND ENFORCEMENT BY STATE AT-
TORNEYS GENERAL. 
(a) PREEMPTION.— 
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(1) IN GENERAL.—This Act preempts any law, 
rule, regulation, requirement, standard, or other pro-
vision having the force and effect of law of any 
State, or political subdivision of a State, expressly 
relating to the transmission or contents of commu-
nications relating to the assertion of patent rights. 
(2) EFFECT ON OTHER STATE LAWS.—Except 
as provided in paragraph (1), this Act shall not be 
construed to preempt or limit any provision of any 
State law, including any State consumer protection 
law, any State law relating to acts of fraud or decep-
tion, and any State trespass, contract, or tort law. 
(b) ENFORCEMENT
BY STATE ATTORNEYS GEN-
ERAL.— 
(1) IN GENERAL.—In any case in which the at-
torney general of a State has reason to believe that 
an interest of the residents of that State has been 
adversely affected by any person who violates section 
2, the attorney general of the State, may bring a 
civil action on behalf of such residents of the State 
in a district court of the United States of appro-
priate jurisdiction— 
(A) to enjoin further such violation by the 
defendant; or 
(B) to obtain civil penalties. 
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(2) 
MAXIMUM
CIVIL
PENALTY.—Notwith-
standing the number of actions which may be 
brought against a person under this subsection, a 
person may not be liable for a total of more than 
$5,000,000 for a series of related violations of sec-
tion 2. 
(3) INTERVENTION BY THE FTC.— 
(A) NOTICE AND INTERVENTION.—The at-
torney general of a State shall provide prior 
written notice of any action under paragraph 
(1) to the Commission and provide the Commis-
sion with a copy of the complaint in the action, 
except in any case in which such prior notice is 
not feasible, in which case the attorney general 
shall serve such notice immediately upon insti-
tuting such action. The Commission shall have 
the right— 
(i) to intervene in the action; 
(ii) upon so intervening, to be heard 
on all matters arising therein; and 
(iii) to file petitions for appeal. 
(B) LIMITATION ON STATE ACTION WHILE 
FEDERAL ACTION IS PENDING.—If the Commis-
sion has instituted a civil action for violation of 
section 2, no State attorney general may bring 
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an action under this subsection during the 
pendency of that action against any defendant 
named in the complaint of the Commission for 
any violation of such section alleged in the com-
plaint. 
(4) CONSTRUCTION.—For purposes of bringing 
any civil action under paragraph (1), nothing in this 
Act shall be construed to prevent the attorney gen-
eral of a State from exercising the powers conferred 
on the attorney general by the laws of that State 
to— 
(A) conduct investigations; 
(B) administer oaths or affirmations; or 
(C) compel the attendance of witnesses or 
the production of documentary and other evi-
dence. 
SEC. 5. DEFINITIONS. 
In this Act: 
(1) BAD FAITH.—The term ‘‘bad faith’’ means, 
with respect to section 2(a), that the sender— 
(A) made knowingly false or knowingly 
misleading statements, representations, or omis-
sions; 
(B) made statements, representations, or 
omissions with reckless indifference as to the 
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false or misleading nature of such statements, 
representations, or omissions; or 
(C) made statements, representations, or 
omissions with awareness of the high prob-
ability of the statements, representations, or 
omissions to deceive and the sender inten-
tionally avoided the truth. 
(2) COMMISSION.—The term ‘‘Commission’’ 
means the Federal Trade Commission. 
(3) FINAL DETERMINATION.—The term ‘‘final 
determination’’ means, with respect to the invalidity 
or unenforceability of a patent, that the invalidity or 
unenforceability has been determined by a court of 
the United States or the United States Patent and 
Trademark Office in a final decision that is 
unappealable or for which any opportunity for ap-
peal is no longer available. 
Æ 
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