As anticipated by our prior post about a second discussion draft of patent reform legislation, House Judiciary Committee Chairman Robert W. Goodlatte (R-Va) joined others in introducing today a patent reform bill entitled the “Innovation Act“. They also provided a section-by-section summary of the Innovation Act. This bill includes the prior proposed enhanced pleading requirement for patent infringement with a specific pleading requirement for “declared” standard essential patents, stating:
§281A. Pleading requirements for patent infringement actions
(a) Pleading Requirements. — … a party alleging infringement shall include in the initial complaint, counterclaim, or cross-claim for patent infringement, unless the information is not reasonably accessible to such party, the following:
(1) An identification of each patent allegedly infringed.
(10) For each patent identified under paragraph (1), whether such patent has been specifically declared as essential, potentially essential, or having potential to become essential to any standard-setting body, and whether the United States Government or a foreign government has imposed specific licensing requirements with respect to such patent.
In the prior discussion draft, this section (10) required pleading “whether such patent is subject to any licensing term or pricing commitments through an agency or standard-setting body.” That provision has been revised and no longer requires pleading whether the patent is subject to an SSO obligation. This may simplify meeting this pleading requirement and consequences thereof, because pleading whether the patent “has been specifically declared as essential …” seems a cleaner, knowable fact as compared to the prior draft’s requirement to plead whether there are SSO “commitments” and attendant pitfalls of an accused infringer’s response thereto in admitting or denying that a patent is essential or has an SSO commitment.