[i] Demand Letters and Consumer Protection, Examining Deceptive Practices By Patent Assertion Entities: Hearing before the Subcomm. on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation, 113th Congress, 5–10 (2014) (statement of Jon Bruning, Atty. Gen. of Neb.), 17–18 (statement of Mark Chandler, General Counsel, Cisco Systems), 24–5 (statement of Julie P. Samuels, Senior Staff Atty., Electronic Frontier Found.); Protecting Small Businesses and Promoting Innovation by Limiting Patent Troll Abuse: Hearing before the S. Comm. on the Judiciary (Dec. 17, 2013) (statement of Todd Dickinson, Director of Am. IP Law Assoc.); Trolling for a Solution, Ending Abusive Patent Demand Letters: Hearing before Subcomm. on Commerce, Manufacturing, and Trade of the H. Comm. on Energy and Comm. (April 8, 2014) (statements of Mark Chandler, General Counsel, Cisco Systems and William Sorrell, Atty. Gen. of Vt.); H.R. ___, a Bill to Enhance Federal and State Enforcement of Fraudulent Patent Demand Letters: Hearing before Subcomm. on Commerce, Manufacturing, and Trade of the H. Comm. on Energy and Comm. (May 22, 2014) (statements of Jared Polis, Congressman from Col. and Lois Greisman, Assoc. Dir., Bureau of Consumer Protection, FTC).
[ii] On November 19, 2014, the PTAB issued its final decision for two of the patent proceedings. In Hewlett-Packard Co. v. MPHJ Tech. Invs., No. IPR2013-00309 (2014), and Hewlett-Packard Co. v. MPHJ Tech. Invs., IPR2013-00302 (2014), the PTAB found that all but one of MPHJ’s claims in each of the patents were unpatentable. While it remains to be seen whether MPHJ still has an infringement case, this development further demonstrates that even seemingly frivolous assertions could turn out to have some legal basis.
[iii] The Committee appears to have confused these standards. As reported in law360, Congressman Terry argued that the bad faith standard came “from case law interpreting the FTC's ability to hold the officer of a company liable for restitution on account of such company's unfair or deceptive acts or practices.” In fact, to assess consumer protection liability “a court need not find that defendants intended to deceive consumers.” See FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 631 (6th Cir. 2014).