"Sec.

"Chapter 29.-REMEDIES FOR INFRINGEMENT OF PATENT AND

OTHER ACTIONS

"281. Remedy for infringement of patent.

"282. Presumption of validity; defenses.

"283. Injunction.

"284. Damages.

"285. Attorney fees.

"286. Time limitation on damages.

"287. Limitation on damages; marking and notice.

"288. Action for infringement of a patent containing an invalid claim. "289. Additional remedy for infringement of design patent.

"290. Notice of patent suits.

"292. False marking.

"293. Nonresident patentee, service and notice.

"§ 281. Remedy for infringement of patent

"A patentee shall have remedy by civil action for infringement of his patent. "S 282. Presumption of validity; defenses

"(a) A patent shall be presumed valid. Each claim of a patent (whether in independent or dependent form) shall be presumed valid independently of the validity of other claims; dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the part asserting it.

"(b) The following shall be defenses in any action involving the validity or infringement of a patent and shall be pleaded:

"(1) Noninfringement, absence of liability for infringement, or unenforceability.

"(2) Invalidity of the patent or any claim in suit on any ground specified in Part II of this title as a condition for patentability, provided, however, that the validity of a patent may not be questioned solely because of the existence of two or more patents where said patents will expire on the same date as a result of filing on the same date or as a result of a terminal disclaimer pursuant to section 253 of this title so long as the right to sue for infringement of said patents is maintained in the same legal entity.

"(3) Invalidity of the patent or any claim in suit for failure to comply with any requirement of section 112 or 251 of this title.

"(4) And other fact or act made a defense by this title.

"(c) In actions involving the validity or infringement of a patent, the party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days before the trial, of the country, number, date, and name of the patentee of any patent, the title, date, and page numbers of any publication to be relied upon as anticipation of the patent in suit or, except in actions in the United States Court of Claims, as showing the state of the art, and the name and address of any person who may be relied upon as the prior inventor or as having prior knowledge of or as having previously used or sold the invention of the patent in suit. In the absence of such notice, proof of the said matters may not be made at the trial except on such terms as the court requires.

"S 283. Injunction

"(a) The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

"(b) No injunction shall be granted with respect to subsequent use or sale of machines, manufactures, or compositions of matter made prior to grant of the patent and for which damages are awarded under section 284 (b) of this title. "S 284. Damages

"(a) Upon finding for the claimant, the court shall award the claimant damages adequate to compensate for the infringement but in no event less than the infringer's profits attributable to the infringement, or less than a reasonable royalty for the use made of the invention by the infringer, whichever shall be greater, together with interest and costs as fixed by the court.

"(b) Damages for acts set forth in section 271 (f) of this title shall be awarded only for acts occurring after actual notice to the infringer stating how his acts are considered to infringe a claim of a published application and shall be limited to royalties reasonable in the circumstances.

"(c) When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed.

"(d) The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.

❝ 285. Attorney fees

"The court in exceptional cases may award reasonable attorney fees to the prevailing party.

❝S 286. Time limitation on damages

"(a) Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.

"(b) In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referred to in the preceding paragraph. "§ 287. Limitation on damages; marking and notice

"Patentees, and persons making or selling any patented article for or under them, may give notice to the public that the same is patented, either by fixing thereon the word 'patent' or the abbreviation 'pat.', together with the number of the patent, or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement to occurring after such notice. Filing of an action for infringement shall constitute such notice.

"§ 288. Action for infringement of a patent containing an invalid claim

"Whenever, without deceptive intention, a claim of a patent is invalid, an action may be maintained for the infringement of a claim of the patent which may be valid. The patentee shall recover no costs unless a disclaimer of the invalid claim has been entered at the Patent Office before the commencement of the suit. "S 289. Additional remedy for infringement of a design patent

"(a) Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.

"(b) Nothing in this section shall prevent, lessen, or impeach any other remedy which an owner of an infringed patent has under the provisions of this title, but he shall not twice recover the profit made from the infringement.

"S 290. Notice of patent suits

"The clerks of the courts of the United States, within one month after the filing of an action under this title, shall give notice thereof in writing to the Commissioner, setting forth so far as known the names and addresses of the parties, name of the inventor, and the designating number of the patent upon which the action has been brought. If any other patent is subsequently included in the action he shall give like notice thereof. Within one month after the decision is rendered or a judgment issued the clerk of the court shall give notice thereof to the Commissioner. The Commissioner shall, on receipt of such notices, enter the same in the file of such patent.

"S 292. False marking

"(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, or sold by him, the name or any imitation of the name of the patentee, the patent number, or the words 'patent,' 'patentee,' or the like, with the intent of counterfeiting or

imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made or sold by or with the consent of the patentee; or

"Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word 'patent' or any word or number importing that the same is patented, for the purpose of deceiving the public; or

"Whoever marks upon, or affixes to, or uses in advertising in connection with any article, the words 'patent applied for,' 'patent pending,' or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public

"Shall be fined not more than $500 for every such offense.

"(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.

"§ 293. Nonresident patentee; service and notice

"Every patentee not residing in the United States may file in the Patent Office a written designation stating the name and address of a person residing within the United States on whom may be served process or notice of proceedings affecting the patent or rights thereunder. If the person designated cannot be found at the address given in the last designation, or if no person has been designated, the United States District Court for the District of Columbia shall have jurisdiction and summons shall be served by publication or otherwise as the court directs. The court shall have the same jurisdiction to take any action respecting the patent or rights thereunder that it would have if the patentee were personally within the jurisdiction of the court."

TRANSITIONAL AND SUPPLEMENTARY PROVISIONS

SEC. 2 (a) Chapter 9 of title 28, United States Code, Judicial Code and Judiciary, is amended to read as follows:

"Sec.

"Chapter 9.-COURT OF CUSTOMS AND PATENT APPEALS

"211. Appointment and number of judges.

"212. Duties of chief judge; precedence of judges.

"213. Tenure and salaries of judges.

"214. Sessions.

"215. Divisions; powers and assignments.

"216. Publication of decisions.

"§ 211. Appointment and number of judges

"The President shall appoint, by and with the advice and consent of the Senate, a chief judge and eight associate judges who shall constitute a court of record known as the United States Court of Customs and Patent Appeals. At least six judges of the Court of Customs and Patent Appeals shall be specially qualified in the laws of patents. Such court is hereby declared to be a court established under Article III of the Constitution of the United States.

"§ 212. Duties of chief judge; precedence of judges

"The chief judge of the Court of Customs and Patent Appeals, with the approval of the court, shall supervise the fiscal affairs and clerical force of the court. The chief judge shall assign or reassign, under rules of the court, any case for trial, hearing, or determination; and promulgate dockets.

"The chief judge shall have precedence and preside at any session of the court which he attends. If he is temporarily unable to perform his duties as such, they shall be performed by the judge in active service, who is present, able and qualified to act, and next in precedence.

"The associate judges shall have precedence and preside according to the seniority of their commissions. Judges whose commission bear the same date shall have precedence according to seniority in age.

"§ 213. Tenure and salaries of judges

"Judges of the Court of Customs and Patent Appeals shall hold office during good behavior; each shall receive a salary of $33,000 a year.

"§ 214. Sessions

"The Court of Customs and Patent Appeals may hold court at such times and places as it may fix by rule.

"S 215. Divisions; powers and assignments

"(a) Judges of the Court of Customs and Patent Appeals shall sit on the court and its divisions in such order and at such times as the court directs. "(b) The Court of Customs and Patent Appeals shall have an appellate part to hear and determine matters within the appellate jurisdiction of the court; in such appellate part, the Court of Customs and Patent Appeals may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges. A hearing or rehearing of any matter within the appellate jurisdiction of the court may be ordered by a majority of the judges of the Court of Customs and Patent Appeals in regular, active service. The court en banc shall consist of the judges of the Court of Customs and Patent Appeals in regular, active service. A judge of the Court of Customs and Patent Appeals who has retired from regular service shall also be competent to sit as a judge of the court en banc in the rehearing of a matter if he sat on the court or division at the original hearing thereof.

"(c) The Court of Customs and Patent Appeals shall have a trial part to hear and determine matters within the original jurisdiction of the Court of Customs and Patent Appeals; business of the trial part of the Court of Customs and Patent Appeals shall be divided among the judges as provided by the rules and orders of the court. The chief judge shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe.

"(d) The chief judge may sit in any division of the appellate part or as a judge of the trial part. He may, when necessary, assign other judges to any division of the appellate part or to sit as a judge of the trial part.

"S 216. Publication of decisions

"All decisions of the Court of Customs and Patent Appeals shall be preserved and open to inspection. The court shall forward copies of each decision to the Commissioner of Patents who shall publish weekly such decisions as he or the court may designate and abstracts of all other decisions."

(b) Section 832 of title 28, United States Code, Judicial Code and Judiciary, is amended to read as follows:

"S 832. Marshal

"The Court of Customs and Patent Appeals may appoint a marshal and deputy marshals, who shall serve within the District of Columbia and shall be subject to removal by the court.

"The marshal and his deputies shall attend the court at its sessions, and shall serve and execute all process and orders issuing from it, and exercise the powers and perform the duties concerning all matters within such court's jurisdiction assigned to them by the court. The marshal shall purchase books and supplies, supervise the library and perform such other duties as the court may direct. Under regulations prescribed by the Director of the Administrative Office of the United States Courts, the marshal shall pay the salaries of judges, officers, and employees of the court and disburse funds appropriated for the expenses of the court.

"United States marshals for other districts where sessions of the court are held shall serve as marshals of the court."

(c) Section 833 of title 28, United States Code, Judicial Code and Judiciary, is amended by adding the following paragraph at the end thereof:

"(d) The court shall appoint one or more court reporters to attend at each session of the trial part of the court. The number and qualifications and all other matters concerning such court reporters shall be determined in accordance with section 753 of this title."

(d) Section 1256 of title 28, United States Code, Judicial Code and Judiciary, is amended to read as follows:

" 1256. Court of Customs and Patent Appeals; certiorari; certified questions "Cases in the Court of Customs and Patent Appeals may be reviewed by the Supreme Court by the following methods:

"(1) By writ of certioari;

"(2) By certification of any question of law by the Court of Customs and Patent Appeals in any case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions on such questions."

(e) Section 1338 of title 28, United States Code, Judicial Code and Judiciary, is amended to read as follows:

"§ 1338. Patents, copyrights, trademarks and unfair competition

"(a) Except as provided in Chapter 93 hereof, the district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the States in patent and copyright cases.

"(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trademark laws."

(f) Chapter 93 of title 28, United States Code, Judicial Code and Judiciary, is amended to read as follows:

"Sec.

"Chapter 93.-COURT OF CUSTOMS AND PATENT APPEALS

"1541. Powers generally.

"1542. Customs Court decisions. "1543. Patent Office decisions.

"1544. Tariff Commission decisions.

"§ 1541. Powers generally

"The Court of Customs and Patent Appeals and each judge thereof shall possess all the powers of a district court of the United States for preserving order, compelling the attendance of witnesses and the production of evidence. "S 1542. Customs Court decisions

"The Court of Customs and Patent Appeals shall have jurisdiction to review by appeal final decisions of the Customs Court in all cases as to the construction of the law and the facts respecting the classification of merchandise, the rate of duty imposed thereon under such classifications, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of the Customs Court and as to the laws and regulations governing the collection of the customs revenues.

"S 1543. Patent Office decisions

"(a) The Court of Customs and Patent Appeals shall have original jurisdiction of all civil actions arising under section 145 of title 35. Such jurisdiction shall be known as the trial jurisdiction of the court.

"(b) The Court of Customs and Patent Appeals shall have jurisdiction of: "(1) Appeals from all final decisions of the trial part of the Court of Customs and Patent Appeals;

“(2) Appeals from decisions of the Board of Appeals of the Patent Office as to patent applications and patents as provided in Chapter 13 of title 35, Patents, United States Code;

"(3) Appeals from decisions of the Commissioner of Patents and the Trademark Trial and Appeal Board as to trademark applications and proceedings as provided in section 1071 of title 15.

"S 1544. Tariff Commission decisions

"The Court of Customs and Patent Appeals shall have jurisdiction to review, by appeal on questions of law only, the findings of the United States Tariff Commission as to unfair practices in import trade, made under section 1337 of title 19."

(g) Title 28, United States Code, Judicial Code and Judiciary, is amended by adding new section 2603, reading as follows:

"S 2603. Patent Office cases

"Federal Rules of Civil Procedure for the United States district courts shall govern the procedure in all cases within the trial jurisdiction of the Court of Customs and Patent Appeals arising under section 145 of title 35."

(h) The section analysis of Chapter 167-Court of Customs and Patent Appeals Procedure, of title 28, United States Code, Judicial Code and Judiciary, preceding section 2601 is amended by adding the folowing line:

"2603. Patent Office cases."

SEC. 3. If any provisions of title 35 Patents, United States Code, as amended by this Act, or any other provision of this Act, is declared unconstitutional or is held invalid, the validity of the remaining provisions shall not be affected. SEC. 4. (a) This Act shall take effect on the day six months after enactment. (b) Applications for patent actually filed in the United States prior to the effective date of this Act shall continue to be governed by the provisions of title 35