An Act Regarding Bad Faith Assertions of Patent Infringement
Sec. 1. 14 MRSA c. 757 is enacted to read:
ACTIONS FOR BAD FAITH ASSERTION OF PATENT INFRINGEMENT
§ 8701. Actions for bad faith assertion of patent infringement
(1) Who has received a demand letter;
(2) Against whom a lawsuit has been filed alleging patent infringement; or
(3) Whose customers have received a demand letter asserting that the person's product, service or technology has infringed a patent.
(1) The demand letter does not contain:
(a) The patent number;
(b) The name and address of the patent owner or owners and assignee or assignees, if any; or
(c) Factual allegations concerning the specific areas in which the target's products, services or technology infringed the patent or are covered by the claims in the patent;
(2) The demand letter does not contain the information described in subparagraph (1), the target requested the information and the person did not provide the information within a reasonable period of time;
(3) Prior to sending the demand letter, the person failed to conduct an analysis comparing the claims in the patent to the target's products, services or technology or an analysis was done but does not identify specific areas in which the products, services or technology are covered by the claims in the patent;
(4) The demand letter includes a demand for payment of a license fee or a response within an unreasonably short period of time;
(5) The person offered to license the patent for an amount that is not based on a reasonable estimate of the value of the license;
(6) The person knew or should have known that the assertion of patent infringement is meritless;
(7) The assertion of patent infringement is deceptive; and
(8) The person or a subsidiary or affiliate of the person previously filed or threatened to file a lawsuit based on the same or similar claim of patent infringement and:
(a) Those threats or lawsuits lacked the information described in subparagraph (1); or
(b) The person attempted to enforce the claim of patent infringement in litigation and a court found the claim to be meritless; and
(1) The demand letter contains the information described in paragraph A, subparagraph (1);
(2) The demand letter does not contain the information described in paragraph A, subparagraph (1), the target requested the information and the person provided the information within a reasonable period of time;
(3) The person engaged in a good faith effort to establish that the target infringed the patent and to negotiate an appropriate remedy;
(4) The person made a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent;
(5) The person is:
(a) The inventor or joint inventor of the patent or, in the case of a patent filed by and awarded to an assignee of the original inventor or joint inventor, is the original assignee; or
(b) An institution of higher education or a technology transfer organization whose primary purpose is to facilitate the commercialization of technologies developed by an institution of higher education that is owned by or affiliated with an institution of higher education; and
(6) The person demonstrated good faith business practices in previous efforts to enforce the patent or a substantially similar patent or successfully enforced the patent or a substantially similar patent through litigation.
§ 8702. Rules
The Attorney General shall adopt rules implementing this chapter. Evidence of a violation of a rule adopted by the Attorney General constitutes prima facie evidence of a bad faith assertion of patent infringement in any action brought under this chapter. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
This bill authorizes a person against whom a bad faith assertion of patent infringement has been made to bring a civil action in Superior Court for equitable relief, damages, court costs and fees and punitive damages. It authorizes the Attorney General to bring an action and it provides that a bad faith assertion of patent infringement is a violation of the Maine Unfair Trade Practices Act.