S.Amdt. 4748

SA 4748. Mr. HATCH submitted an amendment intended to be proposed to
amendment SA 4685 proposed by Mr. Shelby (for himself and Ms. Mikulski)
to the bill H.R. 2578, making appropriations for the Departments of
Commerce and Justice, Science, and Related Agencies for the fiscal year
ending September 30, 2016, and for other purposes; which was ordered to
lie on the table; as follows:

At the appropriate place, insert the following:

SEC. __. SENSE OF CONGRESS WITH RESPECT TO WILLFUL
INFRINGEMENT IN PATENT CASES.

(a) Findings.--Congress finds the following:
(1) On June 13, 2016, the Supreme Court of the United
States held in Halo Electronics, Inc. v. Pulse Electronics,
Inc. (in this section referred to as ``Halo''), that the 2-
part test for awarding enhanced damages under section 284 of
title 35, United States Code, as articulated in In re Seagate
Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc) (in
this section referred to as ``Seagate''), was inconsistent
with the intent of that section.
(2) In 2011, when Congress enacted Public Law 112-29, the
standard articulated by the Federal Circuit for willful
infringement under Seagate was the established judicial
interpretation of section 284 of title 35, United States
Code, with respect to awarding enhanced damages in a patent
case. The legislative history of section 284 after Seagate
was decided shows that Congress was well aware of the Seagate
standard and explored the impact of Seagate on the issue of
enhanced damages.
(3) Ultimately, Congress did not substantively amend
section 284 of title 35, United States Code, knowing that no
action from Congress would be required to ensure that the
standard established in Seagate would remain in place and
continue to govern the enhancement analysis under that
section.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the Seagate standard has governed and continues to
govern the enhanced damages analysis under section 284 of
title 35, United States Code; and
(2) this intent of Congress should be considered in any
decisions interpreting that section.
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