Sec. 9. Abusive demand letters
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Chapter 29 of title 35, United States Code, as amended by section 8, is amended by adding at the end the following: In this section, the term affiliated person means a person affiliated with the intended recipient of a written communication. A person who commits an unfair or deceptive act or practice within the meaning of section 5(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(1) ), in connection with the assertion of a United States patent, and who engages in the widespread sending of written communications representing that the intended recipients, or any persons affiliated with those recipients, are or may be infringing, or have or may have infringed, the patent and may bear liability or owe compensation to another, shall be deemed to have violated a rule defining an unfair or deceptive act or practice described under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) if— the communications falsely— represent that administrative or judicial relief has been sought against the recipient or others; or threaten litigation if compensation is not paid, the infringement issue is not otherwise resolved, or the communication is not responded to; and there is a pattern of false statements or threats described in subparagraph
(A)having been made without litigation or other relief then having been pursued; the assertions contained in the communications lack a reasonable basis in fact or law, because— the person asserting the patent is not a person, or does not represent a person, with the current right to license the patent to, or to enforce the patent against, the intended recipients or any affiliated persons; the communications seek compensation on account of activities undertaken after the patent has expired; the communications seek compensation for a patent that has been held to be invalid or unenforceable in a final judicial or administrative proceeding that is unappealable or for which any opportunity for appeal is no longer available; the communications seek compensation for activities by the recipient that the sender knows do not infringe the patent because such activities are authorized by the patentee; the communications falsely represent that an investigation of the recipient’s alleged infringement has occurred; or the communications falsely state that litigation has been filed against, or a license has been paid by persons similarly situated to the recipient; or the content of the written communications is likely to materially mislead a reasonable recipient because the content fails to include facts reasonably necessary to inform the recipient— of the identity of the person asserting a right to license the patent to, or enforce the patent against, the intended recipient or any affiliated person; of the patent issued by the United States Patent and Trademark Office alleged to have been infringed; and if infringement or the need to pay compensation for a license is alleged, of an identification of at least one product, service, or other activity of the recipient that is alleged to infringe the identified patent or patents and, unless the information is not readily accessible, an explanation of the basis for such allegation. The Federal Trade Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this section. Any person who engages in an act or practice described in subsection
(b)shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ). . The table of sections for chapter 29 of title 35, United States Code, as amended by section 8, is amended by inserting after the item relating to section 299C the following: 299D. Bad-faith demand letters. .
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