U.S. Senator Orrin Hatch (R-Utah) introduced today the Patent Litigation Integrity Act (S. 1612) “to address the growing threat of so-called ‘patent trolls'” who “purchase existing broad patents and then threaten businesses of infringing” them. Sen. Hatch issued a press release and one-page summary of the proposed legisltation, which provides two reform measures.
First, the legislation would replace the discretionary “exceptional case” standard for awarding attorneys fees under 35 U.S.C. § 285 with a mandatory award of attorney fees and expenses to the prevailing party unless the non-prevailing party’s position and conduct “were substantially justified” or “special circumstances make an award unjust.”
Second, the legistlation would provide for circumstances in which a court may require a patent owner to “post a bond sufficient to ensure payment of the accused infringer’s reasonable fees and other expenses, including attorney fees.”
The first fee-shifting provision is similar to that proposed last week by Rep. Goodlatte. The main difference is that, in Rep. Goodlatte’s proposal, if the nonprevailing party could not pay the prevailing party’s fees and expenses, then the court could require another party joined in the case to pay them. Perhaps Sen. Hatch considered this latter provision unnecessary given his proposed bond to secure such fees and expenses.