[Congressional Record Volume 159, Number 153 (Wednesday, October 30, 2013)]
[Senate]
[Page S7675]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S. 1612. A bill to deter abusive patent litigation by targeting the 
economic incentives that fuel frivolous lawsuits; to the Committee on 
the Judiciary.
  Mr. HATCH. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1612

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

     SECTION 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.

                    TITLE I--MANDATORY FEE SHIFTING

     SEC. 101. LITIGATION AND OTHER EXPENSES.

       (a) In General.--Section 285 of title 35, United States 
     Code, is amended to read as follows:

     ``Sec. 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.''.

                    TITLE II--DISCRETIONARY BONDING

     SEC. 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:

     ``Sec. 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.''.
                                 ______