Florida Senate - 2015                          SENATOR AMENDMENT
       Bill No. CS for SB 1362
       
       
       
       
       
       
                                Ì317938RÎ317938                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: NC/2R          .                                
             04/22/2015 03:02 PM       .                                
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       Senator Simmons moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 213 - 523
    4  and insert:
    5  written communication asserting or claiming that a person has
    6  engaged in patent infringement.
    7         (2) “Institution of higher education” means an educational
    8  institution as defined in 20 U.S.C. s. 1001(a).
    9         (3) “Target” means a person residing in, incorporated in,
   10  or organized under the laws of this state who purchases, rents,
   11  leases, or otherwise obtains a product or service in the
   12  commercial market which is not for resale in the commercial
   13  market and who:
   14         (a)Has received a demand letter or against whom a written
   15  assertion or allegation of patent infringement has been made; or
   16         (b)Has been threatened in writing with litigation or
   17  against whom a lawsuit has been filed alleging patent
   18  infringement.
   19         Section 9. Section 501.993, Florida Statutes, is created to
   20  read:
   21         501.993 Bad faith assertions of patent infringement.—A
   22  person may not make a bad faith assertion of patent
   23  infringement.
   24         (1) A court may consider the following factors as evidence
   25  that a person has made a bad faith assertion of patent
   26  infringement:
   27         (a) The demand letter does not contain the following
   28  information:
   29         1. The patent number;
   30         2. The name and address of the patent owner and assignee,
   31  if any; and
   32         3. Factual allegations concerning the specific areas in
   33  which the target’s products, services, or technology infringe or
   34  are covered by the claims in the patent.
   35         (b) Before sending the demand letter, the person failed to
   36  conduct an analysis comparing the claims in the patent to the
   37  target’s products, services, or technology, or the analysis did
   38  not identify specific areas in which the target’s products,
   39  services, and technology were covered by the claims of the
   40  patent.
   41         (c) The demand letter lacked the information listed under
   42  paragraph (a), the target requested the information, and the
   43  person failed to provide the information within a reasonable
   44  period.
   45         (d) The demand letter requested payment of a license fee or
   46  response within an unreasonable period.
   47         (e) The person offered to license the patent for an amount
   48  that is not based on a reasonable estimate of the value of the
   49  license.
   50         (f) The claim or assertion of patent infringement is
   51  unenforceable, and the person knew, or should have known, that
   52  the claim or assertion was unenforceable.
   53         (g) The claim or assertion of patent infringement is
   54  deceptive.
   55         (h) The person, including its subsidiaries or affiliates,
   56  has previously filed or threatened to file one or more lawsuits
   57  based on the same or a similar claim of patent infringement and:
   58         1. The threats or lawsuits lacked the information listed
   59  under paragraph (a); or
   60         2. The person sued to enforce the claim of patent
   61  infringement and a court found the claim to be meritless.
   62         (i) Any other factor the court finds relevant.
   63         (2) A court may consider the following factors as evidence
   64  that a person has not made a bad faith assertion of patent
   65  infringement:
   66         (a) The demand letter contained the information listed
   67  under paragraph (1)(a).
   68         (b) The demand letter did not contain the information
   69  listed under paragraph (1)(a), the target requested the
   70  information, and the person provided the information within a
   71  reasonable period.
   72         (c) The person engaged in a good faith effort to establish
   73  that the target has infringed the patent and negotiated an
   74  appropriate remedy.
   75         (d) The person made a substantial investment in the use of
   76  the patented invention or discovery or in a product or sale of a
   77  product or item covered by the patent.
   78         (e) The person is the inventor or joint inventor of the
   79  patented invention or discovery, or in the case of a patent
   80  filed by and awarded to an assignee of the original inventor or
   81  joint inventors, is the original assignee.
   82         (f) The person has:
   83         1. Demonstrated good faith business practices in previous
   84  efforts to enforce the patent, or a substantially similar
   85  patent; or
   86         2. Successfully enforced the patent, or a substantially
   87  similar patent, through litigation.
   88         (g) Any other factor the court finds relevant.
   89         Section 10. Section 501.994, Florida Statutes, is created
   90  to read:
   91         501.994 Bond.—If a person initiates a proceeding against a
   92  target in a court of competent jurisdiction, the target may move
   93  that the proceeding involves a bad faith assertion of patent
   94  infringement in violation of this part and request that the
   95  court issue a protective order. After the motion, and if the
   96  court finds that the target has established a reasonable
   97  likelihood that the plaintiff has made a bad faith assertion of
   98  patent infringement, the court must require the plaintiff to
   99  post a bond in an amount equal to the lesser of $250,000 or a
  100  good faith estimate of the target’s expense of litigation,
  101  including an estimate of reasonable attorney fees, conditioned
  102  on payment of any amount finally determined to be due to the
  103  target. The court shall hold a hearing at either party’s
  104  request. A court may waive the bond requirement for good cause
  105  shown or if it finds the plaintiff has available assets equal to
  106  the amount of the proposed bond.
  107         Section 11. Section 501.995, Florida Statutes, is created
  108  to read:
  109         501.995 Private right of action.—A person aggrieved by a
  110  violation of this part may bring an action in a court of
  111  competent jurisdiction. A court may award the following remedies
  112  to a prevailing plaintiff in an action brought pursuant to this
  113  section:
  114         (1) Equitable relief;
  115         (2) Damages;
  116         (3) Costs and fees, including reasonable attorney fees; and
  117         (4) Punitive damages in an amount equal to $50,000 or three
  118  times the total damages, costs, and fees, whichever is greater.
  119         Section 12. Section 501.996, Florida Statutes, is created
  120  to read:
  121         501.996 Enforcement.—A violation of this part is an unfair
  122  or deceptive trade practice under part II of this chapter.
  123         Section 13. Section 501.997, Florida Statutes, is created
  124  to read:
  125         501.997 Exemptions.—This part does not apply to an
  126  institution of higher education, to a technology transfer
  127  organization owned by or affiliated with an institution of
  128  higher education, or to a demand letter or an assertion of
  129  patent infringement that includes a claim for relief arising
  130  under 35 U.S.C. s. 271(e)(2) or 42 U.S.C. s. 262.
  131         Section 14. Subsections (3) and (6) of section 960.03,
  132  Florida Statutes, are amended to read:
  133         960.03 Definitions; ss. 960.01-960.28.—As used in ss.
  134  960.01-960.28, unless the context otherwise requires, the term:
  135         (3) “Crime” means:
  136         (a) A felony or misdemeanor offense committed by an adult
  137  or a juvenile which results in physical injury or death, a
  138  forcible felony committed by an adult or juvenile which directly
  139  results in psychiatric or psychological injury, or a felony or
  140  misdemeanor offense of child abuse committed by an adult or a
  141  juvenile which results in a mental injury, as defined in s.
  142  827.03, to a person younger than 18 years of age who was not
  143  physically injured by the criminal act. The mental injury to the
  144  minor must be verified by a psychologist licensed under chapter
  145  490, by a physician licensed in this state under chapter 458 or
  146  chapter 459 who has completed an accredited residency in
  147  psychiatry, or by a physician who has obtained certification as
  148  an expert witness pursuant to s. 458.3175. The term also
  149  includes a criminal act that is committed within this state but
  150  that falls exclusively within federal jurisdiction.
  151         (b) A violation of s. 316.027(2), s. 316.193, s. 316.1935
  152  s. 316.027(1), s. 327.35(1), s. 782.071(1)(b), or s.
  153  860.13(1)(a) which results in physical injury or death.
  154         (c);however, An act involving the operation of a motor
  155  vehicle, boat, or aircraft which results in another person’s
  156  injury or death that is intentionally inflicted through the use
  157  of the vehicle, boat, or aircraft; however, no other act
  158  involving the operation of a motor vehicle, boat, or aircraft
  159  constitutes a crime for purposes of this chapter does not
  160  constitute a crime for the purpose of this chapter unless the
  161  injury or death was intentionally inflicted through the use of
  162  the vehicle, boat, or aircraft.
  163         (d)(c) A criminal act committed outside this state against
  164  a resident of this state which would have been compensable if it
  165  had occurred in this state and which occurred in a jurisdiction
  166  that does not have an eligible crime victim compensation program
  167  as the term is defined in the federal Victims of Crime Act of
  168  1984.
  169         (e)(d) A violation of s. 827.071, s. 847.0135, s. 847.0137,
  170  or s. 847.0138, related to online sexual exploitation and child
  171  pornography.
  172         (6) “Disabled adult” means a person 18 years of age or
  173  older who suffers from a condition of physical or mental
  174  incapacitation due to a developmental disability, or organic
  175  brain damage, or mental illness or who has one or more physical
  176  or mental limitations that restrict the person’s ability to
  177  perform the normal activities of daily living.
  178         Section 15. Subsection (6) of section 960.13, Florida
  179  Statutes, is amended to read:
  180         960.13 Awards.—
  181         (6) Any award made pursuant to this chapter, except an
  182  award for loss of support or catastrophic injury, shall be
  183  reduced by the amount of any payments or services received or to
  184  be received by the claimant as a result of the injury or death:
  185         (a) From or on behalf of the person who committed the
  186  crime; provided, however, that a restitution award ordered by a
  187  court to be paid to the claimant by the person who committed the
  188  crime shall not reduce any award made pursuant to this chapter
  189  unless it appears to the department that the claimant will be
  190  unjustly enriched thereby.
  191         (b) From any other public or private source or provider,
  192  including, but not limited to, an award of workers’ compensation
  193  pursuant to chapter 440.
  194         (c) From agencies mandated by other Florida statutes to
  195  provide or pay for services, except as provided in s. 960.28.
  196         (d) From an emergency award under s. 960.12.
  197         Section 16. Section 960.195, Florida Statutes, is amended
  198  to read:
  199         960.195 Awards to elderly persons or disabled adults for
  200  property loss.—
  201         (1) Notwithstanding the criteria in s. 960.13, for crime
  202  victim compensation awards, the department may award a maximum
  203  of $500 on any one claim and a lifetime maximum of $1,000 on all
  204  claims to elderly persons or disabled adults who suffer a
  205  property loss that causes a substantial diminution in their
  206  quality of life when:
  207         (a)(1) There is proof that a criminal or delinquent act was
  208  committed;
  209         (b)(2) The criminal or delinquent act is reported to law
  210  enforcement authorities within 72 hours, unless the department,
  211  for good cause shown, finds the delay to have been justified;
  212         (3) The victim cooperates with law enforcement authorities
  213  in the investigation of the criminal or delinquent act;
  214         (c)(4) There is proof that the tangible personal property
  215  in question belonged to the claimant;
  216         (d)(5) The claimant did not contribute to the criminal or
  217  delinquent act;
  218         (e)(6) There is no other source of reimbursement or
  219  indemnification available to the claimant; and
  220         (f)(7) The claimant would not be able to replace the
  221  tangible personal property in question without incurring a
  222  serious financial hardship.
  223         (2) The department may deny, reduce, or withdraw any award
  224  under subsection (1) upon finding that any claimant or award
  225  recipient has not duly cooperated with the state attorney, all
  226  law enforcement agencies, and the department.
  227         Section 17. Section 960.196, Florida Statutes, is created
  228  to read:
  229         960.196 Relocation assistance for victims of human
  230  trafficking.—
  231         (1) Notwithstanding the criteria specified in ss. 960.07(2)
  232  and 960.13 for crime victim compensation awards, the department
  233  may award a one-time payment of up to $1,500 for any one claim
  234  and a lifetime maximum of $3,000 to a victim of human
  235  trafficking who needs urgent assistance to escape from an unsafe
  236  environment directly related to the human trafficking offense.
  237         (2) In order for an award to be granted to a victim for
  238  relocation assistance:
  239         (a) There must be proof that a human trafficking offense,
  240  as described in s. 787.06(3)(b), (d), (f), or (g), was
  241  committed.
  242         (b) The crime must be reported to the proper authorities
  243  and the claim must be filed within 1 year, or 2 years with good
  244  cause, after the date of the last human trafficking offense, as
  245  described in s. 787.06(3)(b), (d), (f), or (g). In a case that
  246  exceeds the 2-year requirement due to an active and ongoing
  247  investigation, a state attorney, statewide prosecutor, or
  248  federal prosecutor may certify in writing a human trafficking
  249  victim’s need to relocate from an unsafe environment due to the
  250  threat of future violence which is directly related to the human
  251  trafficking offense.
  252         (c) The victim’s need must be certified by a certified
  253  domestic violence or rape crisis center in this state, except as
  254  provided in paragraph (b). The center’s certification must
  255  assert that the victim is cooperating with the proper
  256  authorities and must include documentation that the victim has
  257  developed a safety plan.
  258         (3) Relocation payments for a human trafficking claim shall
  259  be denied if the department has previously approved or paid out
  260  a domestic violence or sexual battery relocation claim under s.
  261  960.198 or s. 960.199 to the same victim regarding the same
  262  incident.
  263         Section 18. Subsection (3) of section 960.198, Florida
  264  Statutes, is amended to read:
  265         960.198 Relocation assistance for victims of domestic
  266  violence.—
  267         (3) Relocation payments for a domestic violence claim shall
  268  be denied if the department has previously approved or paid out
  269  a human trafficking or sexual battery relocation claim under s.
  270  960.196 or s. 960.199 to the same victim regarding the same
  271  incident.
  272         Section 19. Section 960.199, Florida Statutes, is amended
  273  to read:
  274         960.199 Relocation assistance for victims of sexual battery
  275  or human trafficking.—
  276         (1) The department may award a one-time payment of up to
  277  $1,500 on any one claim and a lifetime maximum of $3,000 to a
  278  victim of sexual battery, as defined in s. 794.011, or a victim
  279  of human trafficking, as described in s. 787.06(3)(b), (d), (f),
  280  or (g), who needs relocation assistance.
  281         (2) In order for an award to be granted to a victim for
  282  relocation assistance:
  283         (a) There must be proof that a sexual battery offense or
  284  human trafficking offense, as described in s. 787.06(3)(b), (d),
  285  (f), or (g), was committed.
  286         (b) The sexual battery offense or human trafficking
  287  offense, as defined in s. 787.06(3)(b), (d), (f), or (g), must
  288  be reported to the proper authorities.
  289         (c) The victim’s need for assistance must be certified by a
  290  certified rape crisis center in this state or by the state
  291  attorney or statewide prosecutor having jurisdiction over the
  292  offense. A victim of human trafficking’s need for assistance may
  293  also be certified by a certified domestic violence center in
  294  this state.
  295         (d) The center’s certification must assert that the victim
  296  is cooperating with law enforcement officials, if applicable,
  297  and must include documentation that the victim has developed a
  298  safety plan. If the victim seeking relocation assistance is a
  299  victim of a human trafficking offense as described in s.
  300  787.06(3)(b), (d), (f), or (g), the certified rape crisis
  301  center’s or certified domestic violence center’s certification
  302  must include, if applicable, approval of the state attorney or
  303  statewide prosecutor attesting that the victim is cooperating
  304  with law enforcement officials.
  305         (e) The act of sexual battery or human trafficking, as
  306  described in s. 787.06(3)(b), (d), (f), or (g), must be
  307  committed in the victim’s place of residence or in a location
  308  that would lead the victim to reasonably fear for his or her
  309  continued safety in the place of residence.
  310         (3) Relocation payments for a sexual battery or human
  311  trafficking claim under this section shall be denied if the
  312  department has previously approved or paid out a human
  313  trafficking or domestic violence relocation claim under s.
  314  960.196 or s. 960.198 to the same victim regarding the same
  315  incident.
  316         Section 20. If any provision of this act or its application
  317  to any person or circumstance is held invalid, the invalidity
  318  does not affect other provisions or applications of the act
  319  which can be given effect without the invalid provision or
  320  application, and to this end the provisions of this act are
  321  severable.
  322  
  323  ================= T I T L E  A M E N D M E N T ================
  324  And the title is amended as follows:
  325         Delete line 61
  326  and insert:
  327         trafficking victims; providing that the provisions of
  328         this act are severable; providing an effective date.