I 
116TH CONGRESS 
1ST SESSION 
H. R. 108 
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 
JANUARY 3, 2019 
Mr. BURGESS 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 2019’’. 
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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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