Sec. 202. Unfair or deceptive acts or practices in connection with the assertion of a United States patent
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It shall be 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) ) for a person, in connection with the assertion of a United States patent, to engage in a pattern or practice of sending written communications that state or represent that the recipients are or may be infringing, or have or may have infringed, the patent and bear liability or owe compensation to another, if— the sender of the communications, in bad faith, states or represents in the communications that— the sender is a person with the right to license or enforce the patent at the time the communications are sent, and the sender is not a person with such a right; a civil action asserting a claim of infringement of the patent has been filed against the recipient; a civil action asserting a claim of infringement of the patent has been filed against other persons; legal action for infringement of the patent will be taken against the recipient; the sender is the exclusive licensee of the patent asserted in the communications; persons other than the recipient purchased a license for the patent asserted in the communications; persons other than the recipient purchased a license, and the sender does not disclose that such license is unrelated to the alleged infringement or the patent asserted in the communications; an investigation of the recipient’s alleged infringement occurred; or 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 held, in a final determination, not to infringe the patent; the sender of the communications, in bad faith, seeks compensation for— a patent claim that has been held to be unenforceable due to inequitable conduct, invalid, or otherwise unenforceable against the recipient, in a final determination; activities undertaken by the recipient after expiration of the patent asserted in the communications; or activity of the recipient that the sender knew was authorized, with respect to the patent claim or claims that are the subject of the communications, by a person with the right to license the patent; or the sender of the communications, in bad faith, fails to include— the identity of the person asserting a right to license the patent to, or enforce the patent against, the recipient, including the identity of any parent entity and the ultimate parent entity of such person, unless such person is a public company and the name of the public company is identified; an identification of at least one patent issued by the United States Patent and Trademark Office alleged to have been infringed; an identification, to the extent reasonable under the circumstances, of at least one product, service, or other activity of the recipient that is alleged to infringe the identified patent; a description, to the extent reasonable under the circumstances, of how the product, service, or other activity of the recipient infringes an identified patent and patent claim; or a name and contact information for a person the recipient may contact about the assertions or claims relating to the patent contained in the communications.
With respect to subsection (a), there shall be an affirmative defense that statements, representations, or omissions were not made in bad faith (as defined in subparagraphs
(B)and
(C)of section 201(1)) if the sender can demonstrate that such statements, representations, or omissions were mistakes made in good faith. Evidence that the sender in the usual course of business sends written communications that do not violate the provisions of this title shall be sufficient to demonstrate good faith. Good faith may also be demonstrated by other evidence. For purposes of sections 203 and 204, 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 5(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(1) ) shall be considered to be a violation of this section.
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Sec. 202
Unfair or deceptive acts or practices in connection with the assertion of a United States patent
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