Sec. 6. Procedures and practices to implement recommendations of the Judicial Conference
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In this subsection, the term electronic communication means any form of electronic communication, including email, text message, and instant message. Not later than 3 months after the date of the enactment of this Act, the Director of the Administrative Office of the United States Courts shall designate not fewer than 6 of the district courts of the United States that are participating in the patent cases pilot program established under section 1 of Public Law 111–349 (28 U.S.C.137 note) to develop rules and procedures to implement the proposals described in paragraphs
(3)through
(5)to address the asymmetries in discovery burdens and costs, and to establish case management procedures, in any civil action arising under any Act of Congress relating to patents. The discovery rules and procedures required under paragraph
(2)shall address each of the following: Whether and to what extent each party to the action is entitled to receive core documentary evidence and should be responsible for the costs of producing core documentary evidence within the possession or control of each such party, and whether and to what extent each party may seek non-core documentary discovery as otherwise provided in the Federal Rules of Civil Procedure. If the parties request discovery of electronic communication, how such discovery should be phased to occur relative to the exchange of initial disclosures and core documentary evidence, and appropriate limitations to apply to such discovery. The kinds of evidence that should constitute core documentary evidence . The discovery rules and procedures required under paragraph
(2)shall address whether the following provisions, or variations on the following provisions, should apply: Whether each party to the action may seek any additional document discovery otherwise permitted under the Federal Rules of Civil Procedure beyond core documentary evidence, if such party bears the reasonable costs, including reasonable attorney’s fees, of the additional document discovery. Whether, unless the parties mutually agree otherwise, no party may be permitted additional document discovery unless such a party posts a bond, or provides other security, in an amount sufficient to cover the expected costs of such additional document discovery, or makes a showing to the court that such party has the financial capacity to pay the costs of such additional document discovery. Whether a court, upon motion and for good cause shown, may modify the requirements of subparagraphs
(A)and
(B)and any definition of core documentary evidence. Whether a court, upon motion and for good cause shown, may determine that computer code should be included in the discovery of core documentary evidence, and whether the discovery of computer code shall occur after the parties have exchanged initial disclosures and other core documentary evidence. Whether the parties shall discuss and address in the written report filed pursuant to rule 26(f) of the Federal Rules of Civil Procedure the views and proposals of each party on the following: When the discovery of core documentary evidence should be completed. Whether additional document discovery described in subparagraphs
(A)and
(B)will be sought. Any issues about infringement, invalidity, or damages that, if resolved before the additional document discovery described in subparagraphs
(A)and
(B)commences, might simplify or streamline the case. The rules and procedures required under paragraph
(2)shall also address case management procedures for any civil action arising under any Act of Congress relating to patents, including initial disclosure and early case management conference practices that— will identify any potential dispositive issues of the case; and focus on early summary judgment motions when resolution of issues may lead to expedited disposition of the case. Within 18 months after the designation by the Director of the Administrative Office of the 6 district courts to develop the rules and procedures pursuant to subsection (a), the 6 district courts shall complete the development of the rules and procedures, and begin to implement them. After the rules and procedures developed by the pilot program pursuant to subsection
(a)have been in effect for at least 2 years, the Judicial Conference of the United States, using existing resources, may expand the application of some or all of those rules and procedures to be implemented by all the district courts, and the United States Court of Federal Claims, for any civil action arising under any Act of Congress relating to patents. The Supreme Court, using existing resources, shall eliminate Form 18 in the Appendix to the Federal Rules of Civil Procedure (relating to Complaint for Patent Infringement), effective on the date of the enactment of this Act. The Supreme Court may prescribe a new form or forms setting out model allegations of patent infringement that, at a minimum, notify accused infringers of the asserted claim or claims, the products or services accused of infringement, and the plaintiff’s theory for how each accused product or service meets each limitation of each asserted claim. The Judicial Conference should exercise the authority under section 2073 of title 28, United States Code, to make recommendations with respect to such new form or forms. Section 1522 of title 11, United States Code, is amended by adding at the end the following: Section 365(n) shall apply to cases under this chapter. If the foreign representative rejects or repudiates a contract under which the debtor is a licensor of intellectual property, the licensee under such contract shall be entitled to make the election and exercise the rights described in section 365(n). . Section 101(35A) of title 11, United States Code, is amended— in subparagraph (E), by striking or ; in subparagraph (F), by striking title 17; and inserting title 17; or ; and by adding after subparagraph
(F)the following new subparagraph: a trademark, service mark, or trade name, as those terms are defined in section 45 of the Act of July 5, 1946 (commonly referred to as the Trademark Act of 1946 ) ( 15 U.S.C. 1127 ); . Section 365(n)(2) of title 11, United States Code, is amended— in subparagraph (B)— by striking royalty payments and inserting royalty or other payments ; and by striking and after the semicolon; in subparagraph (C), by striking the period at the end of clause
(ii)and inserting ; and ; and by adding at the end the following new subparagraph: in the case of a trademark, service mark, or trade name, the licensee shall not be relieved of any of its obligations to maintain the quality of the products and services offered under or in connection with the licensed trademark, service mark, or trade name, and the trustee shall retain the right to oversee and enforce quality control for such products or services, or both. . The amendments made by this subsection shall take effect on the date of the enactment of this Act and shall apply to any case that is pending on, or for which a petition or complaint is filed on or after, such date of enactment. Not later than 12 months after the date of the enactment of this Act, the Judicial Conference of the United States, with the assistance of the Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts, shall prepare and transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report on discovery proceedings in cases pertaining to litigation involving patent laws of the United States. The report shall contain, after looking at data compiled for the previous two years before the date of the enactment of this Act, the following: The percentage of courts that have distinct phases of discovery in the court rules. A description of at least two of the definitions of such phases. Identify by name any court that does not have such distinct phases and a description of why such courts have not implemented such phases. With regard to proceedings in courts that have phases, in the case of a discovery proceeding that extends beyond the core documents phase, a description of— what additional discovery was requested and any consistent pattern or trend in the reasons or justifications for the request; how much longer, on average, the proceedings lasted than those settled within the first phase; and any patterns for the courts that repeatedly have extended requests. Looking at proceedings in the courts that do not have phase rules, a description of— how long, on average, the discovery proceedings last; and the scope of the requests.
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- Pub. L. 111-349
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Sec. 6
Procedures and practices to implement recommendations of the Judicial Conference
Pub. L.Pub. L. 111-349
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