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A BILL TO BE ENTITLED
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AN ACT
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relating to bad faith claims of patent infringement; providing a |
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civil penalty; creating a criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 17, Business & Commerce Code, is amended |
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by adding Subchapter L to read as follows: |
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SUBCHAPTER L. BAD FAITH CLAIMS OF PATENT INFRINGEMENT |
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Sec. 17.951. BAD FAITH CLAIMS OF PATENT INFRINGEMENT |
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PROHIBITED. A person may not send 10 or more written communications |
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per calendar year in which the person makes a bad faith claim of |
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patent infringement against a person located or doing business in |
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this state. A person makes a bad faith claim of patent infringement |
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if the communication includes an allegation that the recipient or a |
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person affiliated with the recipient has infringed a patent and is |
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liable for that infringement and: |
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(1) the communication falsely states that the sender |
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has filed a lawsuit in connection with the claim; |
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(2) the claim is objectively baseless because: |
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(A) the sender or a person the sender represents |
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does not have a current right to license the patent to or enforce |
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the patent against the recipient; |
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(B) the patent has been held invalid or |
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unenforceable in a final judgment or administrative decision; or |
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(C) the infringing activity alleged in the patent |
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occurred after the patent expired; or |
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(3) the communication is likely to materially mislead |
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a reasonable recipient because the communication does not contain |
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information sufficient to inform the recipient of: |
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(A) the identity of the person asserting the |
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claim; |
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(B) the patent that is alleged to have been |
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infringed; and |
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(C) at least one product, service, or activity of |
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the recipient that is alleged to infringe the patent. |
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Sec. 17.952. ENFORCEMENT BY ATTORNEY GENERAL; INJUNCTION |
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AND CIVIL PENALTY. (a) If the attorney general believes that a |
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person has violated or is violating Section 17.951, the attorney |
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general may bring an action on behalf of the state to enjoin the |
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person from violating that section. |
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(b) In addition to seeking an injunction under Subsection |
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(a), the attorney general may request and the court may order any |
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other relief that may be in the public interest, including: |
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(1) the imposition of a civil penalty in an amount not |
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to exceed $50,000 for each violation of Section 17.951; |
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(2) an order requiring reimbursement to this state for |
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the reasonable value of investigating and prosecuting a violation |
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of Section 17.951; and |
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(3) an order requiring restitution to a victim for |
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legal and professional expenses related to the violation. |
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Sec. 17.953. CONSTRUCTION OF SUBCHAPTER. This subchapter |
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may not be construed to: |
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(1) limit rights and remedies available to the state |
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or another person under any other law; |
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(2) alter or restrict the attorney general's authority |
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under other law with regard to conduct involving claims of patent |
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infringement; or |
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(3) prohibit a person who owns or has a right to |
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license or enforce a patent from: |
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(A) notifying others of the person's ownership or |
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right; |
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(B) offering the patent to others for license or |
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sale; |
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(C) notifying any person of the person's |
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infringement of the patent as provided by 35 U.S.C. Section 287; or |
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(D) seeking compensation for past or present |
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infringement of the patent or for a license to the patent. |
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SECTION 2. Section 38.12, Penal Code, is amended by |
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amending Subsections (a) and (f) and adding Subsection (f-1) to |
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read as follows: |
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(a) A person commits an offense if, with intent to obtain an |
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economic benefit the person: |
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(1) knowingly institutes a suit or claim that the |
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person has not been authorized to pursue; |
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(2) solicits employment, either in person or by |
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telephone, for himself or for another; |
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(3) pays, gives, or advances or offers to pay, give, or |
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advance to a prospective client money or anything of value to obtain |
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employment as a professional from the prospective client; |
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(4) pays or gives or offers to pay or give a person |
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money or anything of value to solicit employment; |
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(5) pays or gives or offers to pay or give a family |
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member of a prospective client money or anything of value to solicit |
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employment; [or] |
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(6) accepts or agrees to accept money or anything of |
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value to solicit employment; or |
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(7) knowingly institutes a suit or claim for patent |
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infringement that constitutes a bad faith claim of patent |
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infringement under Section 17.951, Business & Commerce Code. |
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(f) Except as provided by Subsection (f-1), an [An] offense |
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under Subsection (a) or (b) is a felony of the third degree. |
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(f-1) An offense under Subsection (a)(7) is a Class A |
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misdemeanor. |
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SECTION 3. This Act takes effect September 1, 2015. |