,i #aafth ,,congress #ast ,session ,h4 ,r4 #ajh ,,in ,,the ,,house ,,of ,,representatives ,january #c1 #bjai,mr4 ,burgess introduced the following bill2 which was referred to the ,committee on ,energy and ,commerce ,a ,,bill ,to provide that certain bad faith communications in connection with the assertion of a ,united ,states patent are unfair or deceptive acts or practices1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,targeting ,rogue and ,opaque ,letters ,act of #bjai4 #b4 ,unfair or deceptive acts or practices in connection with the assertion of a ,united ,states patent 7a7 ,in general ,it shall be an unfair or deceptive act or practice within the meaning of section #e7;a77#a7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7;a77#a77 for a person1 in connection with the assertion of a ,united ,states patent1 to engage in a pattern or practice of sending written communications that state or represent that the recipients are or may be infringing1 or have or may have infringed1 the patent and bear liability or owe compensation to another1 if-- 7#a7 the sender of the communications1 in bad faith1 states or represents in the communications that-- 7,a7 the sender is a person with the right to license or enforce the patent at the time the communications are sent1 and the sender is not a person with such a right2 7,b7 a civil action asserting a claim of infringement of the patent has been filed against the recipient2 7,c7 a civil action asserting a claim of infringement of the patent has been filed against other persons2 7,d7 legal action for infringement of the patent will be taken against the recipient2 7,e7 the sender is the exclusive licensee of the patent asserted in the communications2 7,f7 persons other than the recipient purchased a license for the patent asserted in the communications2 7,g7 persons other than the recipient purchased a license1 and the sender does not disclose that such license is unrelated to the alleged infringement or the patent asserted in the communications2 7,h7 an investigation of the recipient's alleged infringement occurred2 or 7,i7 the sender or an affiliate of the sender previously filed a civil action asserting a claim of infringement of the patent based on the activity that is the subject of the written communication when the sender knew such activity was held1 in a final determination1 not to infringe the patent2 7#b7 the sender of the communications1 in bad faith1 seeks compensation for-- 7,a7 a patent claim that has been held to be unenforceable due to inequitable conduct1 invalid1 or otherwise unenforceable against the recipient1 in a final determination2 7,b7 activities undertaken by the recipient after expiration of the patent asserted in the communications2 or 7,c7 activity of the recipient that the sender knew was authorized1 with respect to the patent claim or claims that are the subject of the communications1 by a person with the right to license the patent2 or 7#c7 the sender of the communications1 in bad faith1 fails to include-- 7,a7 the identity of the person asserting a right to license the patent to1 or enforce the patent against1 the recipient1 including the identity of any parent entity and the ultimate parent entity of such person1 unless such person is a public company and the name of the public company is identified2 7,b7 an identification of at least one patent issued by the ,united ,states ,patent and ,trademark ,office alleged to have been infringed2 7,c7 an identification1 to the extent reasonable under the circumstances1 of at least one product1 service1 or other activity of the recipient that is alleged to infringe the identified patent2 7,d7 a description1 to the extent reasonable under the circumstances1 of how the product1 service1 or other activity of the recipient infringes an identified patent and patent claim2 or 7,e7 a name and contact information for a person the recipient may contact about the assertions or claims relating to the patent contained in the communications4 7b7 ,affirmative defense ,with respect to subsection 7a71 there shall be an affirmative defense that statements1 representations1 or omissions were not made in bad faith 7as defined in subparagraphs 7,b7 and 7,c7 of section #e7a77 if the sender can demonstrate that such statements1 representations1 or omissions were mistakes made in good faith1 which may be demonstrated by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error4 7c7 ,rule of construction ,for purposes of sections #c and #d1 the commission of an act or practice that is declared under this section to be an unfair or deceptive act or practice within the meaning of section #e7;a77#a7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7;a77#a77 shall be considered to be a violation of this section4 #c4 ,enforcement by ,federal ,trade ,commission 7a7 ,violation of rule ,a violation of section #b shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section #ah7;a77#a77;,b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #eg;a7a77#a77;,b774 7b7 ,powers of ,commission ,the ,commission shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this ,act4 ,any person who violates section #b shall be subject to the penalties and entitled to the privileges and immunities provided in the ,federal ,trade ,commission ,act4 7c7 ,effect on other laws ,nothing in this ,act shall be construed in any way to limit or affect the authority of the ,commission under any other provision of law4 #d4 ,preemption of ,state laws on patent demand letters and enforcement by ,state attorneys general 7a7 ,preemption 7#a7 ,in general ,this ,act preempts any law1 rule1 regulation1 requirement1 standard1 or other provision having the force and effect of law of any ,state1 or political subdivision of a ,state1 expressly relating to the transmission or contents of communications relating to the assertion of patent rights4 7#b7 ,effect on other ,state laws ,except as provided in paragraph 7#a71 this ,act shall not be construed to preempt or limit any provision of any ,state law1 including any ,state consumer protection law1 any ,state law relating to acts of fraud or deception1 and any ,state trespass1 contract1 or tort law4 7b7 ,enforcement by ,state attorneys general 7#a7 ,in general ,in any case in which the attorney general of a ,state has reason to believe that an interest of the residents of that ,state has been adversely affected by any person who violates section #b1 the attorney general of the ,state1 may bring a civil action on behalf of such residents of the ,state in a district court of the ,united ,states of appropriate jurisdiction-- 7,a7 to enjoin further such violation by the defendant2 or 7,b7 to obtain civil penalties4 7#b7 ,maximum civil penalty ,notwithstanding the number of actions which may be brought against a person under this subsection1 a person may not be liable for a total of more than #e1jjj1jjj for a series of related violations of section #b4 7#c7 ,intervention by the ,,ftc 7,a7 ,notice and intervention ,the attorney general of a ,state shall provide prior written notice of any action under paragraph 7#a7 to the ,commission and provide the ,commission with a copy of the complaint in the action1 except in any case in which such prior notice is not feasible1 in which case the attorney general shall serve such notice immediately upon instituting such action4 ,the ,commission shall have the right-- 7i7 to intervene in the action2 7ii7 upon so intervening1 to be heard on all matters arising therein2 and 7iii7 to file petitions for appeal4 7,b7 ,limitation on ,state action while ,federal action is pending ,if the ,commission has instituted a civil action for violation of section #b1 no ,state attorney general may bring an action under this subsection during the pendency of that action against any defendant named in the complaint of the ,commission for any violation of such section alleged in the complaint4 7#d7 ,construction ,for purposes of bringing any civil action under paragraph 7#a71 nothing in this ,act shall be construed to prevent the attorney general of a ,state from exercising the powers conferred on the attorney general by the laws of that ,state to-- 7,a7 conduct investigations2 7,b7 administer oaths or affirmations2 or 7,c7 compel the attendance of witnesses or the production of documentary and other evidence4 #e4 ,definitions ,in this ,act3 7#a7 ,bad faith ,the term bad faith means1 with respect to section #b7;a71 that the sender-- 7,a7 made knowingly false or knowingly misleading statements1 representations1 or omissions2 7,b7 made statements1 representations1 or omissions with reckless indifference as to the false or misleading nature of such statements1 representations1 or omissions2 or 7,c7 made statements1 representations1 or omissions with awareness of the high probability of the statements1 representations1 or omissions to deceive and the sender intentionally avoided the truth4 7#b7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#c7 ,final determination ,the term final determination means1 with respect to the invalidity or unenforceability of a patent1 that the invalidity or unenforceability has been determined by a court of the ,united ,states or the ,united ,states ,patent and ,trademark ,office in a final decision that is unappealable or for which any opportunity for appeal is no longer available4