(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; 
(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 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
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 
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. 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
(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.— 
(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 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
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. 
(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; 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
(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 
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: 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
(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 
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. 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS
Union Calendar No. 688 
114TH CONGRESS 
2D SESSION 
H. R. 2045 
[Report No. 114–877] 
A BILL 
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. 
DECEMBER 16, 2016 
Committed to the Committee of the Whole House on the 
State of the Union and ordered to be printed 
VerDate Sep 11 2014 
19:59 Dec 16, 2016
Jkt 069200
PO 00000
Frm 00012
Fmt 6651
Sfmt 6651
E:\BILLS\H2045.RH
H2045
asabaliauskas on DSK3SPTVN1PROD with BILLS