II 113th CONGRESS 1st Session S. 1612 IN THE SENATE OF THE UNITED STATES October 30, 2013 Mr. Hatch introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To deter abusive patent litigation by targeting the economic incentives that fuel frivolous lawsuits.

1. Short title; table of contents (a) Short title This Act may be cited as the Patent Litigation Integrity Act of 2013 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Mandatory fee shifting Sec. 101. Litigation and other expenses. TITLE II—Discretionary Bonding Sec. 201. Motion for a bond. I Mandatory fee shifting 101. Litigation and other expenses (a) In general Section 285 of title 35, United States Code, is amended to read as follows: 285. Fees and other expenses The court shall award to a prevailing party reasonable fees and other expenses, including attorney fees, incurred by that party in connection with a civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, unless the court finds that the position and conduct of the nonprevailing party or parties were substantially justified or that special circumstances make an award unjust. . (b) Technical and conforming amendment The table of sections for chapter 29 of title 35, United States Code, is amended by striking the item relating to section 285 and inserting the following: 285. Fees and other expenses. . II Discretionary Bonding 201. Motion for a bond (a) In general Chapter 29 of title 35, United States Code, is amended by inserting after section 285 the following: 285A. Motion for a bond (a) In general The court, on motion by the defendant or a respondent in a proceeding, may order the party alleging infringement to post a bond sufficient to ensure payment of the accused infringer’s reasonable fees and other expenses, including attorney fees. (b) Factors To be considered For purposes of this section, in determining whether a bond requirement would be unreasonable or unnecessary, the court shall consider— (1) whether the bond will burden the ability of the party alleging infringement to pursue activities unrelated to the assertion, acquisition, litigation, or licensing of any patent; (2) whether the party alleging infringement is— (A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) )); or (B) a non-profit technology transfer organization whose primary purpose is to facilitate the commercialization of technologies developed by one or more institutions of higher education; (3) whether a licensee, who has an exclusive right under a patent held by an institution of higher education or a non-profit organization described in paragraph (2), conducts further research on or development of the subject matter to make the subject matter more licensable; (4) whether the party alleging infringement is a named inventor of or an original assignee to an asserted patent; (5) whether the party alleging infringement makes or sells a product related to the subject matter described in an asserted patent; (6) whether the party alleging infringement can demonstrate that it has and will have the ability to pay the accused infringer’s fees and other expenses if ordered to do so; and (7) whether any party will agree to pay the accused infringer’s shifted fees and other expenses, provided that the person or entity can demonstrate that it has and will have the ability to pay the accused infringer’s shifted fees and other expenses. . (b) Technical and conforming amendment The table of sections for chapter 29 of title 35, United States Code, as amended by section 101, is amended by inserting after the item relating to section 285 the following: 285A. Motion for a bond. .