51-36-03. Factors for bad faith assertion of infringement
A court may consider any of the following factors as evidence a person made a bad faith
assertion of patent infringement:
1. The demand letter does not contain the following information:
a. The patent number;
b. The name and address of the patent owner and assignee, if any; or
c. Factual allegations concerning the specific areas in which the target's product,
service, or technology infringe the patent or are covered by the claim in the
patent.
2. Before sending the demand letter, the person fails to conduct an analysis comparing
the claim in the patent to the target's product, service, or technology, or such an
analysis was done but does not identify the specific area in which the product, service,
or technology is covered by the claim in the patent.
3. The demand letter lacks the information described in subsection 1, the target requests
the information, and the person fails to provide the information within a reasonable
period of time.
4. The demand letter demands payment of a license fee or a response within an
unreasonably short period of time.
5. The person offers to license the patent for an amount that is not based on a
reasonable estimate of the value of the license.
6. The claim of patent infringement is unenforceable and the person knew, or should
have known, the claim is unenforceable.
7. The claim of patent infringement is deceptive.
8. The person, a subsidiary, or an affiliate previously filed or threatened to file a lawsuit
based on the same or a similar claim of patent infringement and:
a. The threat or lawsuit lacked the information described in subsection 1; or
b. The person attempted to enforce the claim of patent infringement in litigation and
a court found the claim to be unenforceable.
9. The person making the assertion of infringement of a patent does not own or have the
right to enforce or license the patent.
10. The person sent the same demand or substantially same demand to multiple
recipients and made assertions against a variety of products and systems without
reflecting product and system differences in a reasonable manner in the demands.
11. The person threatens legal action that cannot legally be taken or that is not intended to
be taken.
12. The person represents a complaint has been filed alleging the target has infringed the
patent when no complaint has been filed.
13. The claim of patent infringement is based on a patent or a claim of a patent that has
expired or previously been held invalid or unenforceable in a final unappealable or
unappealed judicial or administrative decision.
14. Any other factor the court finds relevant.
