House Subcommittee Approves Patent TROL Bill

But Committee is Divided over Preemption, Enforcement

The House Commerce, Manufacturing and Trade Subcommittee Wednesday voted 10-7 along party lines to approve the Targeting Rogue and Opaque Letters (TROL) Act, which would define what constitutes a false and deceptive patent assertion entity (PAE) letter subject to FTC enforcement under its Sec. 5 authority.

Both parties are looking to crack down on abuse of the patent process by companies doing mass mailings seeking settlement payments to avoid litigation, but they can’t agree on how best to do that.

The bill establishes that "it is an unfair or deceptive act or practice under the FTC Act to engage in a pattern or practice of sending demand letters... in bad faith." It also establishes an "affirmative defense" of letters if statements, representations or omissions were not made in bad faith "if the sender can demonstrate that such statements, representations, or omissions were mistakes, including by evidence that the sender does not send letters in violation of this Act in the usual course of business."