117 S3772 IS: Defending American Courts Act U.S. Senate 2022-03-08 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

II117th CONGRESS2d SessionS. 3772IN THE SENATE OF THE UNITED STATESMarch 8 (legislative day, March 7), 2022Mr. 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 JudiciaryA BILLTo 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.

1.

Short title

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

2.

Limiting foreign interference

(a)

In general

Chapter 28 of title 35, United States Code, is amended by adding at the end the following:

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..

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).