113 STAT. 1501A-564 PUBLIC LAW 106-113—APPENDIX I an unintentionally delayed submission of an amendment under this section.". (2) RIGHT OF PRIORITY.— Section 119(e)(1) of title 35, United States Code, is amended by adding at the end the following: "No application shall be entitled to the benefit of an earlier filed provisional application under this subsection unless an amendment containing the specific reference to the earlier filed provisional application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this subsection. The Director may establish procedures, including the pa3Tnent of a surcharge, to accept an unintentionally delayed submission of an amendment under this subsection during the pendency of the application.". SEC. 4504. PROVISIONAL RIGHTS. Section 154 of title 35, United States Code, is amended— (1) in the section caption by inserting "; provisional rights" after "patent"; and (2) by adding at the end the following new subsection: " (d) PROVISIONAL RIGHTS.— "(1) IN GENERAL.—In addition to other rights provided by this section, a patent shall include the right to obtain a reasonable royalty from any person who, during the period beginning on the date of publication of the application for such patent under section 122(b), or in the case of an international application filed under the treaty defined in section 351(a) designating the United States under Article 21(2)(a) of such treaty, the date of publication of the application, and ending on the date the patent is issued— "(A)(i) makes, uses, offers for sale, or sells in the United States the invention as claimed in the published patent application or imports such an invention into the United States; or "(ii) if the invention as claimed in the published patent application is a process, uses, offers for sale, or sells in the United States or imports into the United States products made by that process as claimed in the published patent application; and "(B) had actual notice of the published patent application and, in a case in which the right arising under this paragraph is based upon an international application designating the United States that is published in a language other than English, had a translation of the international application into the English language. " (2) RIGHT BASED ON SUBSTANTIALLY IDENTICAL INVEN- TIONS.—The right under paragraph (1) to obtain a reasonable royalty shall not be available under this subsection unless the invention as claimed in the patent is substantially identical to the invention as claimed in the published patent application. " (3) TIME LIMITATION ON OBTAINING A REASONABLE ROY- ALTY.— The right under paragraph (1) to obtain a reasonable royalty shall be available only in an action brought not later than 6 years after the patent is issued. The right under paragraph (1) to obtain a reasonable royalty shall not be affected by the duration of the period described in paragraph (1).
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