,,ii #aacth ,,congress #ast ,session ,s4 #ajac ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #bb1 #bjac ,mr4 ,cornyn introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ce1 ,united ,states ,code1 to add procedural requirements for patent infringement suits4 #a4 ,short title ,this ,act may be cited as the ,patent ,abuse ,reduction ,act of #bjac4 #b4 ,pleading requirements 7a7 ,in general ,chapter #bi of title #ce1 ,united ,states ,code1 is amended by inserting after section #bha the following3 #bha;,a4 ,pleading requirements for patent infringement actions ,in a civil action arising under any ,act of ,congress relating to patents1 a party alleging infringement shall include in the initial complaint1 counterclaim1 or cross-claim for patent infringement-- 7#a7 an identification of each patent allegedly infringed2 7#b7 an identification of each claim of each patent identified under paragraph 7#a7 that is allegedly infringed2 7#c7 for each claim identified under paragraph 7#b71 an identification of each accused apparatus1 product1 feature1 device1 method1 system1 process1 function1 act1 service1 or other instrumentality 7referred to in this section as an accused instrumentality7 alleged to infringe the claim2 7#d7 for each accused instrumentality identified under paragraph 7#c71 an identification with particularity1 if known1 of-- 7,a7 the name or model number of each accused instrumentality2 and 7,b7 the name of each accused method1 system1 process1 function1 act1 or service1 or the name or model number of each apparatus1 product1 feature1 or device that1 when used1 allegedly results in the practice of the claimed invention2 7#e7 for each accused instrumentality identified under paragraph 7#c71 an explanation of-- 7,a7 where each element of each asserted claim identified under paragraph 7#b7 is found within the accused instrumentality2 7,b7 whether each such element is infringed literally or under the doctrine of equivalents2 and 7,c7 with detailed specificity1 how the terms in each asserted claim identified under paragraph 7#b7 correspond to the functionality of the accused instrumentality2 7#f7 for each claim that is alleged to have been infringed indirectly1 a description of-- 7,a7 the direct infringement2 7,b7 any person alleged to be a direct infringer known to the party alleging infringement2 and 7,c7 the acts of the alleged indirect infringer that contribute to or are inducing the direct infringement2 7#g7 a description of the right of the party alleging infringement to assert each-- 7,a7 patent identified under paragraph 7#a72 and 7,b7 patent claim identified in paragraph 7#b72 7#h7 a description of the principal business of the party alleging infringement2 7#i7 a list of each complaint filed1 of which the party alleging infringement has knowledge1 that asserts or asserted any of the patents identified under paragraph 7#a72 7#aj7 for each patent identified under paragraph 7#a71 whether such patent is subject to any licensing term or pricing commitments through any agency1 organization1 standard-setting body1 or other entity or community2 7#aa7 the identity of any person other than the party alleging infringement1 known to the party alleging infringement1 who-- 7,a7 owns or co-owns a patent identified under paragraph 7#a72 7,b7 is the assignee of a patent identified under paragraph 7#a72 or 7,c7 is an exclusive licensee to a patent identified under paragraph 7#a72 7#ab7 the identity of any person other than the party alleging infringement1 known to the party alleging infringement1 who has a legal right to enforce a patent identified under paragraph 7#a7 through a civil action under any ,act of ,congress relating to patents or is licensed under such patent2 7#ac7 the identity of any person with a direct financial interest in the outcome of the action1 including a right to receive proceeds1 or any fixed or variable portion thereof2 and 7#ad7 a description of any agreement or other legal basis for a financial interest described in paragraph 7#ac74 4 7b7 ,technical and conforming amendment ,the table of sections for chapter #bi of title #ce1 ,united ,states ,code1 is amended by inserting after the item relating to section #bha the following3 #bha;,a4 ,pleading requirements for patent infringement actions4 4 7c7 ,review of form #ah ,not later than #ab months after the date of enactment of this ,act1 the ,supreme ,court shall review and amend ,form #ah of the ,federal ,rules of ,civil ,procedure to ensure that ,form #ah is consistent with the requirements under section #bha;,a of title #ce1 ,united ,states ,code1 as added by subsection 7a74 7d7 ,rule of construction ,nothing in this section or the amendments made by this section shall be construed to alter existing law or rules relating to joinder4 #c4 ,joinder of interested parties ,section #bii of title #ce1 ,united ,states ,code1 is amended by adding at the end the following3 7d7 ,joinder of interested parties 7#a7 ,definition ,in this subsection1 the term interested party1 with respect to a civil action arising under any ,act of ,congress relating to patents-- 7,a7 means a person described in paragraph 7#aa7 or 7#ac7 of section #bha;,a2 and 7,b7 does not include an attorney or law firm providing legal representation in the action if the sole basis for the financial interest of the attorney or law firm in the outcome of the action arises from an agreement to provide that legal representation4 7#b7 ,joinder of interested parties ,in a civil action arising under any ,act of ,congress relating to patents1 the court shall grant a motion by a party defending an infringement claim to join an interested party if the defending party shows that the interest of the plaintiff in any patent identified in the complaint1 including a claim asserted in the complaint1 is limited primarily to asserting any such patent claim in litigation4 7#c7 ,limitation on joinder ,the court may deny a motion to join an interested party under paragraph 7#b7 if-- 7,a7 the interested party is not subject to service of process2 or 7,b7 joinder under paragraph 7#b7 would deprive the court of subject matter jurisdiction or make venue improper4 4 #d4 ,discovery limits 7a7 ,in general ,chapter #bi of title #ce1 ,united ,states ,code1 is amended by adding at the end the following3 #cjj4 ,discovery in patent infringement suits 7a7 ,discovery limitation prior to claim construction 7#a7 ,in general ,except as provided in paragraph 7#b71 in a civil action arising under any ,act of ,congress relating to patents1 if the court determines that a ruling relating to the construction of terms used in a patent claim asserted in the complaint is required1 discovery shall be limited1 until such ruling1 to information necessary for the court to determine the meaning of the terms used in the patent claim1 including any interpretation of those terms used to support the claim of infringement4 7#b7 ,discretion to expand scope of discovery 7,a7 ,timely resolution of actions ,if1 under any provision of ,federal law 7including the ,drug ,price ,competition and ,patent ,term ,restoration ,act 7,public ,law #ih-dag771 resolution within a specified period of time of a civil action arising under any ,act of ,congress relating to patents will have an automatic impact upon the rights of a party with respect to the patent1 the court may permit discovery in addition to the discovery authorized under paragraph 7#a7 before the ruling described in paragraph 7#a7 as necessary to ensure timely resolution of the action4 7,b7 ,resolution of motions ,when necessary to resolve a motion properly raised by a party before a ruling relating to the construction of terms 7as described in paragraph 7#a771 the court may allow limited discovery in addition to the discovery authorized under paragraph 7#a7 as necessary to resolve the motion4 7b7 ,sequence and scope2 cost-,shifting 7#a7 ,definitions ,in this subsection-- 7,a7 the term additional discovery means discovery of evidence other than core documentary evidence2 and 7,b7 the term core documentary evidence1 with respect to a civil action arising under any ,act of ,congress relating to patents-- 7i7 subject to clause 7ii71 includes only documents that-- 7,i7 relate to the conception1 reduction to practice1 and application for the asserted patent2 7,,ii7 are sufficient to show the technical operation of the instrumentality identified in the complaint as infringing the asserted patent2 7,,iii7 relate to potentially invalidating prior art2 7,,iv7 relate to previous licensing or conveyances of the asserted patent2 7,v7 are sufficient to show revenue attributable to any claimed invention2 7,,vi7 are sufficient to show the organizational ownership and structure of each party1 including identification of any person that has a financial interest in the asserted patent2 7,,vii7 relate to awareness of the asserted patent or claim1 or the infringement1 before the action was filed2 and 7,,viii7 sufficient to show any marking1 lack of marking1 or notice of the asserted patent provided to the accused infringer2 and 7ii7 does not include computer code or electronic communication1 such as e-mail1 text messages1 instant messaging1 and other forms of electronic communication1 unless the court finds good cause for including such computer code or electronic communication as core documentary evidence of a particular party under clause 7i74 7#b7 ,discovery sequence and scope ,in a civil action arising under any ,act of ,congress relating to patents1 the parties shall discuss and address in the written report filed under rule #bf7;f77#b7 of the ,federal ,rules of ,civil ,procedure the views and proposals of the parties on-- 7,a7 when the discovery of core documentary evidence should be completed2 7,b7 whether the parties will seek additional discovery under paragraph 7#c72 and 7,c7 any issues relating to infringement1 invalidity1 or damages that1 if resolved before the additional discovery described in paragraph 7#c7 commences1 will simplify or streamline the case1 including the identification of any key patent claim terms or phrases to be construed by the court and whether the early construction of any of those terms or phrases would be helpful4 7#c7 ,discovery cost-shifting 7,a7 ,in general ,in a civil action arising under any ,act of ,congress relating to patents1 each party shall be responsible for the costs of producing core documentary evidence within the possession1 custody1 or control of that party4 7,b7 ,additional discovery 7i7 ,in general ,a party to a civil action arising under any ,act of ,congress relating to patents may seek additional discovery if the party bears the costs of the additional discovery1 including reasonable attorney's fees4 7ii7 ,requirements ,a party shall not be allowed additional discovery unless the party-- 7,i7 at the time that such party seeks additional discovery1 provides to the party from whom the additional discovery is sought payment of the anticipated costs of the discovery2 or 7,,ii7 posts a bond in an amount sufficient to cover the anticipated costs of the discovery4 7,c7 ,rules of construction ,nothing in subparagraph 7,a7 or 7,b7 shall be construed to-- 7i7 entitle a party to information not otherwise discoverable under the ,federal ,rules of ,civil ,procedure or any other applicable rule or order2 7ii7 require a party to produce privileged matter or other discovery otherwise limited under the ,federal ,rules of ,civil ,procedure2 or 7iii7 prohibit a court from-- 7,i7 determining that a request for discovery is excessive1 irrelevant1 or otherwise abusive2 or 7,,ii7 setting other limits on discovery4 4 #e4 ,costs and expenses 7a7 ,in general ,section #bhe of title #ce1 ,united ,states ,code1 is amended to read as follows3 #bhe4 ,costs and expenses 7a7 ,in general ,the court shall award to the prevailing party reasonable costs and expenses1 including attorney's fees1 unless-- 7#a7 the position and conduct of the non-prevailing party were objectively reasonable and substantially justified2 or 7#b7 exceptional circumstances make such an award unjust4 7b7 ,prohibition on consideration of certain settlements ,in determining whether an exception under paragraph 7#a7 or 7#b7 of subsection 7a7 applies1 the court shall not consider as evidence any license taken in settlement of an asserted claim4 7c7 ,recovery ,if the non-prevailing party is unable to pay reasonable costs and expenses awarded by the court under subsection 7a71 the court may make the reasonable costs and expenses recoverable against any interested party1 as defined in section #bii7;d74 4 7b7 ,technical and conforming amendments 7#a7 ,table of sections ,the table of sections for chapter #bi of title #ce1 ,united ,states ,code1 is amended by striking the item relating to section #bhe and inserting the following3 #bhe4 ,costs and expenses4 4 7#b7 ,conforming amendments ,chapter #bi of title #ce1 ,united ,states ,code1 is amended-- 7,a7 in section #bga7;e77#d71 in the flush text following subparagraph 7,d71 by striking attorney fees and inserting reasonable costs and expenses1 including attorney's fees12 7,b7 in section #bgc7;f71 by striking attorney fees and inserting reasonable costs and expenses1 including attorney's fees12 and 7,c7 in section #bif7;b71 by striking attorney fees and inserting reasonable costs and expenses 7including attorney's fees74