[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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