Title: Defending American Courts Act
Policy area: Commerce

Summary:
Defending American Courts Act
This bill imposes limitations relating to a person (i.e., individual or entity) that seeks to use an injunction from a foreign tribunal to restrict a patent infringement claim in the United States.
For example, if the person asserting such a foreign injunction has been found liable for patent infringement in a U.S. court, that court shall, with certain exceptions, make specified presumptions that generally increase the likelihood of the court (1) increasing the damages awarded in the case, and (2) awarding attorney fees to the patent owner.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3772 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 3772

 To amend title 35, United States Code, to limit foreign interference 
 with respect to the right to file and maintain a patent infringement 
                     claim, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                March 8 (legislative day, March 7), 2022

  Mr. Tillis (for himself, Mr. Coons, Mr. Cotton, Ms. Hirono, and Mr. 
 Scott of Florida) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 35, United States Code, to limit foreign interference 
 with respect to the right to file and maintain a patent infringement 
                     claim, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defending American Courts Act''.

SEC. 2. LIMITING FOREIGN INTERFERENCE.

    (a) In General.--Chapter 28 of title 35, United States Code, is 
amended by adding at the end the following:
``Sec. 274. Foreign interference
    ``(a) Definition.--In this section, the term `anti-suit injunction' 
means an injunction issued by a foreign tribunal that purports to 
restrict the rights of a person to file or maintain--
            ``(1) a claim of infringement of any claim of a United 
        States patent in a tribunal of the United States, including--
                    ``(A) in a civil action arising in whole or in part 
                under section 1338 of title 28; or
                    ``(B) in a proceeding before the United States 
                International Trade Commission pursuant to section 337 
                of the Tariff Act of 1930 (19 U.S.C. 1337); or
            ``(2) any appeal from a civil action or proceeding 
        described in paragraph (1), including any appeal arising under 
        paragraph (1) or (6) of section 1295(a) of title 28.
    ``(b) Civil Action Presumptions.--Upon a finding of infringement of 
a patent under section 271 in a civil action against any person that 
has asserted an anti-suit injunction in any tribunal of the United 
States seeking to restrict the claim of infringement of the patent on 
the basis of the anti-suit injunction, the court shall presume that--
            ``(1) the infringement is willful when determining whether 
        to increase damages under section 284; and
            ``(2) the action is exceptional when determining whether to 
        award attorney fees under section 285.
    ``(c) Patent Trial and Appeal Board.--In determining whether to 
institute a review under chapter 31 or 32 with respect to a patent, the 
Director shall decline to institute such a review if the petitioner, 
real party in interest, or privy of the petitioner has asserted an 
anti-suit injunction in any tribunal of the United States seeking to 
restrict a claim for infringement of the patent on the basis of the 
anti-suit injunction.
    ``(d) Consent or Prior Agreement.--Neither subsection (b) nor (c) 
shall apply if--
            ``(1) the person subject to the applicable anti-suit 
        injunction consents to be bound by the anti-suit injunction; or
            ``(2) the applicable anti-suit injunction was issued to 
        enforce a contractual agreement between the parties to submit 
        disputes concerning the patent that is the subject of the anti-
        suit injunction to resolution by a specified court or arbitral 
        tribunal.''.
    (b) Table of Sections Amendment.--The table of sections for chapter 
28 of title 35, United States Code, is amended by inserting after the 
item relating to section 273 the following:

``274. Foreign interference.''.

SEC. 3. STUDY ON PATENTS AND ANTI-SUIT INJUNCTIONS.

    (a) Study Required.--The Under Secretary of Commerce for 
Intellectual Property and Director of the United States Patent and 
Trademark Office (referred to in this section as the ``Director''), in 
consultation with the head of any other appropriate agency, shall 
conduct a study that examines--
            (1) the importance of patents to the technological 
        leadership of the United States in critical and emerging 
        technologies, including by incentivizing research and 
        development in innovation and standards development in the 
        United States; and
            (2) the harms resulting from anti-suit injunctions, as that 
        term is defined in section 274(a) of title 35, United States 
        Code, as added by section 2 of this Act.
    (b) Report.--Not later than 1 year after the date of enactment of 
this Act, the Director shall submit to the Committee on the Judiciary 
of the Senate and the Committee on the Judiciary of the House of 
Representatives a report on the results of the study conducted under 
subsection (a).
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