§ 51-36-04 — Factors for claim of patent infringement not made in bad faith

A court may consider the following factors as evidence a person has not made a bad faith
assertion of patent infringement:
1. The demand letter contains all of the information described in subsection 1 of section
51-36-03.
2. If the demand letter lacks the information described in subsection 1 of section
51-36-03 and the target requests the information, the person provides the information
within a reasonable period of time.
3. The person engages in a good faith effort to establish the target has infringed the
patent and to negotiate an appropriate remedy.
4. The person makes 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 owned or
affiliated with an institution of higher education.
6. The person has:
a. Demonstrated good faith business practices in previous efforts to enforce the
patent or a substantially similar patent; or
b. Successfully enforced the patent, or a substantially similar patent, through
litigation.
7. Any other factor the court finds relevant.