I 
117TH CONGRESS 
1ST SESSION H. R. 3978 
To make it unlawful to send a demand letter in bad faith for a patent 
relating to COVID–19 related products, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 17, 2021 
Mr. BURGESS introduced the following bill; which was referred to the 
Committee on Energy and Commerce 
A BILL 
To make it unlawful to send a demand letter in bad faith 
for a patent relating to COVID–19 related products, 
and for other purposes. 
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 ‘‘Vaccine Targeting 
Rogue and Opaque Letters Act of 2021’’ or the ‘‘Vaccine 
TROL Act of 2021’’. 
SEC. 2. SUSPENSION OF DEMAND LETTERS RELATED TO 
COVID–19. 
(a) SUSPENDING DEMAND LETTERS RELATED TO 
COVID–19.—For the duration of a public health emer-
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gency declared pursuant to section 319 of the Public 
Health Service Act (42 U.S.C. 247d) as a result of con-
firmed cases of 2019 novel coronavirus (COVID–19), in-
cluding any renewal thereof, it shall be unlawful for any 
person, in connection with the assertion of a United States 
patent, to engage in a pattern or practice of sending writ-
ten communications that state or represent that the recipi-
ents are or may be infringing, or have or may have in-
fringed, a patent regarding COVID–19 related products 
and bear liability or owe compensation 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; 
(D) legal action for infringement of the 
patent will be taken against the recipient; 
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(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 such activity was held, in a final 
determination, not to infringe 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-
valid, or otherwise unenforceable against the re-
cipient, in a final determination; 
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(B) activities undertaken by the recipient 
after expiration of the patent asserted in the 
communications; or 
(C) activity of the recipient that was au-
thorized, with respect to the patent claim or 
claims that are the subject of the communica-
tions, by a person with the right to license 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-
ent that is alleged to infringe the identified pat-
ent; 
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(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) PRESUMPTION OF BAD FAITH.—A written com-
munication is presumed to have been sent in bad faith if, 
after receiving a written request by the recipient to provide 
any of the information required in subsection (a)(3) or a 
patent claim reasonably believed to have been infringed, 
the sender fails to provide such information to the recipi-
ent within 10 business days after the date on which the 
request is received. 
(c) AFFIRMATIVE DEFENSE.—With respect to sub-
section (a), there shall be an affirmative defense that a 
statement, representation, or omission was not made in 
bad faith (as defined in subparagraphs (B) or (C) of sec-
tion 4(1)) if the sender can demonstrate that such state-
ment, representation, or omission was a mistake made in 
good faith, which may be demonstrated by a preponder-
ance of evidence that the violation was not intentional and 
resulted from a bona fide error notwithstanding the main-
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tenance of procedures or policies reasonably adapted to 
avoid any such error. 
(d) 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 
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. 
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(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. 
(d) 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 on behalf of 
recipients who suffered actual damages as a re-
sult of such violation. 
(2) MAXIMUM CIVIL PENALTY.—Notwithstand-
ing 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 
$1,000,000 for every death related to COVID–19 in 
the United States. 
(3) INTERVENTION BY THE FTC.— 
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(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 
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 
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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. 4. DEFINITIONS. 
In this Act: 
(1) BAD FAITH.—The term ‘‘bad faith’’ means, 
with respect to section 2, that the sender— 
(A) made a knowingly false or knowingly 
misleading statement, representation, or omis-
sion; 
(B) made a statement, representation, or 
omission with reckless indifference as to the 
false or misleading nature of such statement, 
representation, or omission; or 
(C) made a statement, representation, or 
omission with awareness of the high probability 
of the statement, representation, or omission to 
deceive and the sender intentionally avoided the 
truth. 
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(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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