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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. |
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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. DEFINITION. In this subchapter, "end user" |
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means a person that purchases, rents, leases, or otherwise obtains |
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a product, service, or technology in the commercial market that is |
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not for resale and that is, or later becomes, the subject of a |
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patent infringement assertion due to the person's use of the |
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product, service, or technology. |
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Sec. 17.952. BAD FAITH CLAIM OF PATENT INFRINGEMENT |
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PROHIBITED. (a) A person may not send to an end user located or |
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doing business in this state a written or electronic communication |
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that is a bad faith claim of patent infringement. |
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(b) A communication is a bad faith claim of patent |
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infringement if the communication includes a claim that the end |
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user or a person affiliated with the end user has infringed a patent |
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and is 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 end user; |
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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 |
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communication occurred after the patent expired; or |
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(3) the communication is likely to materially mislead |
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a reasonable end user because the communication does not contain |
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information sufficient to inform the end user 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 technology |
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obtained by the end user that is alleged to infringe the patent or |
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the activity of the end user that is alleged to infringe the patent. |
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Sec. 17.953. 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 17.952, 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 17.952; |
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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 17.952; 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. 17.954. 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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Sec. 17.955. NO PRIVATE CAUSE OF ACTION. This subchapter |
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does not create a private cause of action for a violation of Section |
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17.952. |
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SECTION 2. This Act takes effect September 1, 2015. |
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