S.Amdt. 144

1. Adds SEC. __. DAMAGES wherever appropriate

   Adds a section

   Inserted: SEC. __. DAMAGES.

   Inserted: Section 284 of title 35, United States Code, is amended--

   Inserted: (1) by striking "Upon finding" and inserting the following: "(a) In General.--Upon finding";

   Inserted: (2) by striking "fixed by the court" and all that follows through "When the damages" and inserting the following: "fixed by the court. When the damages";

   Inserted: (3) by striking "shall assess them." and all that follows through "The court may receive" and inserting the following: "shall assess them.In either event the court may increase the damages up to 3 times the amount found or assessed. Increased damages under this subsection shall not apply to provisional rights under section 154(d) of this title. The court may receive"; and

   Inserted: (4) by adding at the end the following:

   Inserted: "(b) Procedure for Determining Damages.--

   Inserted: "(1) In general.--The court shall identify the methodologies and factors that are relevant to the determination of damages, and the court or jury shall consider only those methodologies and factors relevant to making such determination.

   Inserted: "(2) Disclosure of claims.--By no later than the entry of the final pretrial order, unless otherwise ordered by the court, the parties shall state, in writing and with particularity, the methodologies and factors the parties propose for instruction to the jury in determining damages under this section, specifying the relevant underlying legal and factual bases for their assertions.

   Inserted: "(3) Sufficiency of evidence.--Prior to the introduction of any evidence concerning the determination of damages, upon motion of either party or sua sponte, the court shall consider whether one or more of a party's damages contentions lacks a legally sufficient evidentiary basis. After providing a nonmovant the opportunity to be heard, and after any further proffer of evidence, briefing, or argument that the court may deem appropriate, the court shall identify on the record those methodologies and factors as to which there is a legally sufficient evidentiary basis, and the court or jury shall consider only those methodologies and factors in making the determination of damages under this section. The court shall only permit the introduction of evidence relating to the determination of damages that is relevant to the methodologies and factors that the court determines may be considered in making the damages determination.

   Inserted: "(c) Sequencing.--Any party may request that a patent-infringement trial be sequenced so that the trier of fact decides questions of the patent's infringement and validity before the issues of damages and willful infringement are tried to the court or the jury. The court shall grant such a request absent good cause to reject the request, such as the absence of issues of significant damages or infringement and validity. The sequencing of a trial pursuant to this subsection shall not affect other matters, such as the timing of discovery. This subsection does not authorize a party to request that the issues of damages and willful infringement be tried to a jury different than the one that will decide questions of the patent's infringement and validity.".

   The amendment doesn't say where this goes; the clerk decides.

   Original wording

   At the appropriate place, insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed