Florida Senate - 2015                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for HB 439
       
       
       
       
       
       
                                Ì402804~Î402804                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .          Floor: SA1/C          
             04/22/2015 03:03 PM       .      04/24/2015 09:11 AM       
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       Senator Simmons moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 156 - 343
    4  and insert:
    5         Section 6. The Division of Law Revision and Information is
    6  directed to create part VII of chapter 501, Florida Statutes,
    7  consisting of ss. 501.991-501.997, Florida Statutes, to be
    8  entitled the “Patent Troll Prevention Act.”
    9         Section 7. Section 501.991, Florida Statutes, is created to
   10  read:
   11         501.991 Legislative intent.—
   12         (1) The Legislature recognizes that it is preempted from
   13  passing any law that conflicts with federal patent law. However,
   14  the Legislature recognizes that the state is dedicated to
   15  building an entrepreneurial and business-friendly economy where
   16  businesses and consumers alike are protected from abuse and
   17  fraud. This includes protection from abusive and bad faith
   18  demands and litigation.
   19         (2) Patents encourage research, development, and
   20  innovation. Patent holders have a legitimate right to enforce
   21  their patents. The Legislature does not wish to interfere with
   22  good faith patent litigation or the good faith enforcement of
   23  patents. However, the Legislature recognizes a growing issue:
   24  the frivolous filing of bad faith patent claims that have led to
   25  technical, complex, and especially expensive litigation.
   26         (3) The expense of patent litigation, which may cost
   27  millions of dollars, can be a significant burden on companies
   28  and small businesses. Not only do bad faith patent infringement
   29  claims impose undue burdens on individual businesses, they
   30  undermine the state’s effort to attract and nurture
   31  technological innovations. Funds spent to help avoid the threat
   32  of bad faith litigation are no longer available for serving
   33  communities through investing in producing new products, helping
   34  businesses expand, or hiring new workers. The Legislature wishes
   35  to help businesses avoid these costs by encouraging good faith
   36  assertions of patent infringement and the expeditious and
   37  efficient resolution of patent claims.
   38         Section 8. Section 501.992, Florida Statutes, is created to
   39  read:
   40         501.992 Definitions.—As used in this part, the term:
   41         (1) “Demand letter” means a letter, e-mail, or other
   42  written communication asserting or claiming that a person has
   43  engaged in patent infringement.
   44         (2) “Institution of higher education” means an educational
   45  institution as defined in 20 U.S.C. s. 1001(a).
   46         (3) “Target” means a person residing in, incorporated in,
   47  or organized under the laws of this state who purchases, rents,
   48  leases, or otherwise obtains a product or service in the
   49  commercial market which is not for resale in the commercial
   50  market and who:
   51         (a)Has received a demand letter or against whom a written
   52  assertion or allegation of patent infringement has been made; or
   53         (b)Has been threatened in writing with litigation or
   54  against whom a lawsuit has been filed alleging patent
   55  infringement.
   56         Section 9. Section 501.993, Florida Statutes, is created to
   57  read:
   58         501.993 Bad faith assertions of patent infringement.—A
   59  person may not make a bad faith assertion of patent
   60  infringement.
   61         (1) A court may consider the following factors as evidence
   62  that a person has made a bad faith assertion of patent
   63  infringement:
   64         (a) The demand letter does not contain the following
   65  information:
   66         1. The patent number;
   67         2. The name and address of the patent owner and assignee,
   68  if any; and
   69         3. Factual allegations concerning the specific areas in
   70  which the target’s products, services, or technology infringe or
   71  are covered by the claims in the patent.
   72         (b) Before sending the demand letter, the person failed to
   73  conduct an analysis comparing the claims in the patent to the
   74  target’s products, services, or technology, or the analysis did
   75  not identify specific areas in which the target’s products,
   76  services, and technology were covered by the claims of the
   77  patent.
   78         (c) The demand letter lacked the information listed under
   79  paragraph (a), the target requested the information, and the
   80  person failed to provide the information within a reasonable
   81  period.
   82         (d) The demand letter requested payment of a license fee or
   83  response within an unreasonable period.
   84         (e) The person offered to license the patent for an amount
   85  that is not based on a reasonable estimate of the value of the
   86  license.
   87         (f) The claim or assertion of patent infringement is
   88  unenforceable, and the person knew, or should have known, that
   89  the claim or assertion was unenforceable.
   90         (g) The claim or assertion of patent infringement is
   91  deceptive.
   92         (h) The person, including its subsidiaries or affiliates,
   93  has previously filed or threatened to file one or more lawsuits
   94  based on the same or a similar claim of patent infringement and:
   95         1. The threats or lawsuits lacked the information listed
   96  under paragraph (a); or
   97         2. The person sued to enforce the claim of patent
   98  infringement and a court found the claim to be meritless.
   99         (i) Any other factor the court finds relevant.
  100         (2) A court may consider the following factors as evidence
  101  that a person has not made a bad faith assertion of patent
  102  infringement:
  103         (a) The demand letter contained the information listed
  104  under paragraph (1)(a).
  105         (b) The demand letter did not contain the information
  106  listed under paragraph (1)(a), the target requested the
  107  information, and the person provided the information within a
  108  reasonable period.
  109         (c) The person engaged in a good faith effort to establish
  110  that the target has infringed the patent and negotiated an
  111  appropriate remedy.
  112         (d) The person made a substantial investment in the use of
  113  the patented invention or discovery or in a product or sale of a
  114  product or item covered by the patent.
  115         (e) The person is the inventor or joint inventor of the
  116  patented invention or discovery, or in the case of a patent
  117  filed by and awarded to an assignee of the original inventor or
  118  joint inventors, is the original assignee.
  119         (f) The person has:
  120         1. Demonstrated good faith business practices in previous
  121  efforts to enforce the patent, or a substantially similar
  122  patent; or
  123         2. Successfully enforced the patent, or a substantially
  124  similar patent, through litigation.
  125         (g) Any other factor the court finds relevant.
  126         Section 10. Section 501.994, Florida Statutes, is created
  127  to read:
  128         501.994 Bond.—If a person initiates a proceeding against a
  129  target in a court of competent jurisdiction, the target may move
  130  that the proceeding involves a bad faith assertion of patent
  131  infringement in violation of this part and request that the
  132  court issue a protective order. After the motion, and if the
  133  court finds that the target has established a reasonable
  134  likelihood that the plaintiff has made a bad faith assertion of
  135  patent infringement, the court must require the plaintiff to
  136  post a bond in an amount equal to the lesser of $250,000 or a
  137  good faith estimate of the target’s expense of litigation,
  138  including an estimate of reasonable attorney fees, conditioned
  139  on payment of any amount finally determined to be due to the
  140  target. The court shall hold a hearing at either party’s
  141  request. A court may waive the bond requirement for good cause
  142  shown or if it finds the plaintiff has available assets equal to
  143  the amount of the proposed bond.
  144         Section 11. Section 501.995, Florida Statutes, is created
  145  to read:
  146         501.995 Private right of action.—A person aggrieved by a
  147  violation of this part may bring an action in a court of
  148  competent jurisdiction. A court may award the following remedies
  149  to a prevailing plaintiff in an action brought pursuant to this
  150  section:
  151         (1) Equitable relief;
  152         (2) Damages;
  153         (3) Costs and fees, including reasonable attorney fees; and
  154         (4) Punitive damages in an amount equal to $50,000 or three
  155  times the total damages, costs, and fees, whichever is greater.
  156         Section 12. Section 501.996, Florida Statutes, is created
  157  to read:
  158         501.996 Enforcement.—A violation of this part is an unfair
  159  or deceptive trade practice under part II of this chapter.
  160         Section 13. Section 501.997, Florida Statutes, is created
  161  to read:
  162         501.997 Exemptions.—This part does not apply to an
  163  institution of higher education, to a technology transfer
  164  organization owned by or affiliated with an institution of
  165  higher education, or to a demand letter or an assertion of
  166  patent infringement that includes a claim for relief arising
  167  under 35 U.S.C. s. 271(e)(2) or 42 U.S.C. s. 262.
  168         Section 14. Subsections (3) and (6) of section 960.03,
  169  Florida Statutes, are amended to read:
  170         960.03 Definitions; ss. 960.01-960.28.—As used in ss.
  171  960.01-960.28, unless the context otherwise requires, the term:
  172         (3) “Crime” means:
  173         (a) A felony or misdemeanor offense committed by an adult
  174  or a juvenile which results in physical injury or death, a
  175  forcible felony committed by an adult or juvenile which directly
  176  results in psychiatric or psychological injury, or a felony or
  177  misdemeanor offense of child abuse committed by an adult or a
  178  juvenile which results in a mental injury, as defined in s.
  179  827.03, to a person younger than 18 years of age who was not
  180  physically injured by the criminal act. The mental injury to the
  181  minor must be verified by a psychologist licensed under chapter
  182  490, by a physician licensed in this state under chapter 458 or
  183  chapter 459 who has completed an accredited residency in
  184  psychiatry, or by a physician who has obtained certification as
  185  an expert witness pursuant to s. 458.3175. The term also
  186  includes a criminal act that is committed within this state but
  187  that falls exclusively within federal jurisdiction.
  188         (b) A violation of s. 316.027(2), s. 316.193, s. 316.1935
  189  s. 316.027(1), s. 327.35(1), s. 782.071(1)(b), or s.
  190  860.13(1)(a) which results in physical injury or death.
  191         (c);however, An act involving the operation of a motor
  192  vehicle, boat, or aircraft which results in another person’s
  193  injury or death that is intentionally inflicted through the use
  194  of the vehicle, boat, or aircraft; however, no other act
  195  involving the operation of a motor vehicle, boat, or aircraft
  196  constitutes a crime for purposes of this chapter does not
  197  constitute a crime for the purpose of this chapter unless the
  198  injury or death was intentionally inflicted through the use of
  199  the vehicle, boat, or aircraft.
  200         (d)(c) A criminal act committed outside this state against
  201  a resident of this state which would have been compensable if it
  202  had occurred in this state and which occurred in a jurisdiction
  203  that does not have an eligible crime victim compensation program
  204  as the term is defined in the federal Victims of Crime Act of
  205  1984.
  206         (e)(d) A violation of s. 827.071, s. 847.0135, s. 847.0137,
  207  or s. 847.0138, related to online sexual exploitation and child
  208  pornography.
  209         (6) “Disabled adult” means a person 18 years of age or
  210  older who suffers from a condition of physical or mental
  211  incapacitation due to a developmental disability, or organic
  212  brain damage, or mental illness or who has one or more physical
  213  or mental limitations that restrict the person’s ability to
  214  perform the normal activities of daily living.
  215         Section 15. Subsection (6) of section 960.13, Florida
  216  Statutes, is amended to read:
  217         960.13 Awards.—
  218         (6) Any award made pursuant to this chapter, except an
  219  award for loss of support or catastrophic injury, shall be
  220  reduced by the amount of any payments or services received or to
  221  be received by the claimant as a result of the injury or death:
  222         (a) From or on behalf of the person who committed the
  223  crime; provided, however, that a restitution award ordered by a
  224  court to be paid to the claimant by the person who committed the
  225  crime shall not reduce any award made pursuant to this chapter
  226  unless it appears to the department that the claimant will be
  227  unjustly enriched thereby.
  228         (b) From any other public or private source or provider,
  229  including, but not limited to, an award of workers’ compensation
  230  pursuant to chapter 440.
  231         (c) From agencies mandated by other Florida statutes to
  232  provide or pay for services, except as provided in s. 960.28.
  233         (d) From an emergency award under s. 960.12.
  234         Section 16. Section 960.195, Florida Statutes, is amended
  235  to read:
  236         960.195 Awards to elderly persons or disabled adults for
  237  property loss.—
  238         (1) Notwithstanding the criteria in s. 960.13, for crime
  239  victim compensation awards, the department may award a maximum
  240  of $500 on any one claim and a lifetime maximum of $1,000 on all
  241  claims to elderly persons or disabled adults who suffer a
  242  property loss that causes a substantial diminution in their
  243  quality of life when:
  244         (a)(1) There is proof that a criminal or delinquent act was
  245  committed;
  246         (b)(2) The criminal or delinquent act is reported to law
  247  enforcement authorities within 72 hours, unless the department,
  248  for good cause shown, finds the delay to have been justified;
  249         (3) The victim cooperates with law enforcement authorities
  250  in the investigation of the criminal or delinquent act;
  251         (c)(4) There is proof that the tangible personal property
  252  in question belonged to the claimant;
  253         (d)(5) The claimant did not contribute to the criminal or
  254  delinquent act;
  255         (e)(6) There is no other source of reimbursement or
  256  indemnification available to the claimant; and
  257         (f)(7) The claimant would not be able to replace the
  258  tangible personal property in question without incurring a
  259  serious financial hardship.
  260         (2) The department may deny, reduce, or withdraw any award
  261  under subsection (1) upon finding that any claimant or award
  262  recipient has not duly cooperated with the state attorney, all
  263  law enforcement agencies, and the department.
  264         Section 17. Section 960.196, Florida Statutes, is created
  265  to read:
  266         960.196 Relocation assistance for victims of human
  267  trafficking.—
  268         (1) Notwithstanding the criteria specified in ss. 960.07(2)
  269  and 960.13 for crime victim compensation awards, the department
  270  may award a one-time payment of up to $1,500 for any one claim
  271  and a lifetime maximum of $3,000 to a victim of human
  272  trafficking who needs urgent assistance to escape from an unsafe
  273  environment directly related to the human trafficking offense.
  274         (2) In order for an award to be granted to a victim for
  275  relocation assistance:
  276         (a) There must be proof that a human trafficking offense,
  277  as described in s. 787.06(3)(b), (d), (f), or (g), was
  278  committed.
  279         (b) The crime must be reported to the proper authorities
  280  and the claim must be filed within 1 year, or 2 years with good
  281  cause, after the date of the last human trafficking offense, as
  282  described in s. 787.06(3)(b), (d), (f), or (g). In a case that
  283  exceeds the 2-year requirement due to an active and ongoing
  284  investigation, a state attorney, statewide prosecutor, or
  285  federal prosecutor may certify in writing a human trafficking
  286  victim’s need to relocate from an unsafe environment due to the
  287  threat of future violence which is directly related to the human
  288  trafficking offense.
  289         (c) The victim’s need must be certified by a certified
  290  domestic violence or rape crisis center in this state, except as
  291  provided in paragraph (b). The center’s certification must
  292  assert that the victim is cooperating with the proper
  293  authorities and must include documentation that the victim has
  294  developed a safety plan.
  295         (3) Relocation payments for a human trafficking claim shall
  296  be denied if the department has previously approved or paid out
  297  a domestic violence or sexual battery relocation claim under s.
  298  960.198 or s. 960.199 to the same victim regarding the same
  299  incident.
  300         Section 18. Subsection (3) of section 960.198, Florida
  301  Statutes, is amended to read:
  302         960.198 Relocation assistance for victims of domestic
  303  violence.—
  304         (3) Relocation payments for a domestic violence claim shall
  305  be denied if the department has previously approved or paid out
  306  a human trafficking or sexual battery relocation claim under s.
  307  960.196 or s. 960.199 to the same victim regarding the same
  308  incident.
  309         Section 19. Section 960.199, Florida Statutes, is amended
  310  to read:
  311         960.199 Relocation assistance for victims of sexual battery
  312  or human trafficking.—
  313         (1) The department may award a one-time payment of up to
  314  $1,500 on any one claim and a lifetime maximum of $3,000 to a
  315  victim of sexual battery, as defined in s. 794.011, or a victim
  316  of human trafficking, as described in s. 787.06(3)(b), (d), (f),
  317  or (g), who needs relocation assistance.
  318         (2) In order for an award to be granted to a victim for
  319  relocation assistance:
  320         (a) There must be proof that a sexual battery offense or
  321  human trafficking offense, as described in s. 787.06(3)(b), (d),
  322  (f), or (g), was committed.
  323         (b) The sexual battery offense or human trafficking
  324  offense, as defined in s. 787.06(3)(b), (d), (f), or (g), must
  325  be reported to the proper authorities.
  326         (c) The victim’s need for assistance must be certified by a
  327  certified rape crisis center in this state or by the state
  328  attorney or statewide prosecutor having jurisdiction over the
  329  offense. A victim of human trafficking’s need for assistance may
  330  also be certified by a certified domestic violence center in
  331  this state.
  332         (d) The center’s certification must assert that the victim
  333  is cooperating with law enforcement officials, if applicable,
  334  and must include documentation that the victim has developed a
  335  safety plan. If the victim seeking relocation assistance is a
  336  victim of a human trafficking offense as described in s.
  337  787.06(3)(b), (d), (f), or (g), the certified rape crisis
  338  center’s or certified domestic violence center’s certification
  339  must include, if applicable, approval of the state attorney or
  340  statewide prosecutor attesting that the victim is cooperating
  341  with law enforcement officials.
  342         (e) The act of sexual battery or human trafficking, as
  343  described in s. 787.06(3)(b), (d), (f), or (g), must be
  344  committed in the victim’s place of residence or in a location
  345  that would lead the victim to reasonably fear for his or her
  346  continued safety in the place of residence.
  347         (3) Relocation payments for a sexual battery or human
  348  trafficking claim under this section shall be denied if the
  349  department has previously approved or paid out a human
  350  trafficking or domestic violence relocation claim under s.
  351  960.196 or s. 960.198 to the same victim regarding the same
  352  incident.
  353         Section 20. If any provision of this act or its application
  354  to any person or circumstance is held invalid, the invalidity
  355  does not affect other provisions or applications of the act
  356  which can be given effect without the invalid provision or
  357  application, and to this end the provisions of this act are
  358  severable.
  359  
  360  ================= T I T L E  A M E N D M E N T ================
  361  And the title is amended as follows:
  362         Delete lines 13 - 40
  363  and insert:
  364         providing a directive to the Division of Law Revision
  365         and Information; creating s. 501.991, F.S.; providing
  366         legislative intent; creating s. 501.992, F.S.;
  367         defining terms; creating s. 501.993, F.S.; prohibiting
  368         bad faith assertions of patent infringement from being
  369         made; providing factors that a court may consider when
  370         determining whether an allegation was or was not made
  371         in bad faith; creating s. 501.994, F.S.; authorizing a
  372         court to require a patent infringement plaintiff to
  373         post a bond under certain circumstances; limiting the
  374         bond amount; authorizing the court to waive the bond
  375         requirement in certain circumstances; creating s.
  376         501.995, F.S.; authorizing private rights of action
  377         for violations of this part; authorizing the court to
  378         award certain relief to prevailing plaintiffs;
  379         creating s. 501.996, F.S.; providing that a violation
  380         of part VII of ch. 501, F.S., is an unfair or
  381         deceptive trade practice; creating s. 501.997, F.S.;
  382         providing exemptions; amending s. 960.03, F.S.;
  383         revising the definition of the term “crime” for
  384         purposes of obtaining crime victim compensation from
  385         the department to include certain forcible felonies;
  386         revising provisions concerning acts involving the
  387         operation of a motor vehicle, boat, or aircraft;
  388         revising the definition of the term “disabled adult”;
  389         correcting a cross-reference; amending s. 960.13,
  390         F.S.; exempting crime victim compensation awards for
  391         catastrophic injury from certain deductions; amending
  392         s. 960.195, F.S.; revising the maximum victim
  393         compensation amounts that the department may award to
  394         elderly persons or disabled adults who suffer a
  395         property loss that causes a substantial diminution in
  396         their quality of life in certain circumstances;
  397         revising the conditions under which elderly persons or
  398         disabled adults who suffer a property loss are
  399         eligible for an award; authorizing the department to
  400         deny, reduce, or withdraw a specified award upon
  401         finding that any claimant or award recipient has not
  402         duly cooperated with certain persons and entities;
  403         creating s. 960.196, F.S.; providing for relocation
  404         assistance for human trafficking victims; amending s.
  405         960.198, F.S.; prohibiting relocation assistance for a
  406         domestic violence claim if the victim has received
  407         previous relocation assistance for a human trafficking
  408         claim; amending s. 960.199, F.S.; deleting provisions
  409         relating to relocation assistance for human
  410         trafficking victims; providing that the provisions of
  411         this act are severable; providing an effective date.