“To protect main street retailers and end users in secondary patent actions, and for other purposes.”
No CRS summary available for this bill.
This section establishes a new section 299A of title 35, U.S. Code, requiring courts in patent infringement actions to grant a motion to stay claims against a retailer or end user of an accused instrumentality (i.e., a product or process-implementing device accused of infringement) if (1) the manufacturer is a party to the action or a separate action involving the same patent and instrumentality; (2) the retailer or end user does not manufacture, assemble, integrate, or transform the instrumentality or relevant part; (3) the retailer or end user agrees to waive defenses under 35 U.S.C. §282(b) (i.e., defenses of invalidity, unenforceability, or non-infringement) and be bound by issues decided in the manufacturer's action for any future action involving the same instrumentality from the same manufacturer; and (4) the motion is filed no later than the later of six months after service of the first pleading identifying the instrumentality, six months after the manufacturer becomes a party, or entry of the first scheduling order. The stay may be lifted if the manufacturer cannot satisfy a damages judgment, in which case the court may require the retailer or end user to post a bond or escrow funds if there is a substantial likelihood the manufacturer will not pay; the court also may require stipulations on the extent of use and allow limited discovery thereon. The provision does not limit courts' discretion to grant stays under other authority and includes definitions of retailer (i.e., entity primarily selling consumer goods/services to the public or affiliate), end user (i.e., entity using instrumentality only for its ordinary purpose without directing its manufacture), and manufacturer (i.e., entity that makes, assembles, integrates, transforms, or supplies it). The amendments apply to actions in which a complaint is served on or after the date of enactment.