§ 40-1-202 — Bad faith assertion of patent infringement; prohibited; factors to determine bad faith

(a) Except as otherwise provided in this article, no
person shall make a bad faith assertion of patent infringement
as provided in this section.
(b) A court may consider any of the following factors as
evidence that a person made a bad faith assertion of patent
infringement:
(i) The person issued a demand letter which did not
include one (1) or more of the following:
(A) The patent number;
(B) The name and address of the patent owner and
assignee, if any;
(C) Specific factual allegations describing the
target's product, service or technology that infringes the
patent or is otherwise covered by the patent.
(ii) The person did not conduct an analysis comparing
the patent to the product, service or technology of the target
prior to sending the demand letter or, if an analysis was
conducted, the analysis did not identify the specific area that
the product, service or technology of the target infringes the
patent or is otherwise covered by the patent;
(iii) If a demand letter does not contain all of the
information provided in paragraph (i) of this subsection and the
target requests the missing information, the person fails to
provide the missing information within thirty (30) days;
(iv) The demand letter requires a response or payment
of a license fee within a specified time that is less than
thirty (30) days;
(v) The person knew or should have known that the
claim of patent infringement is unenforceable;
(vi) The claim of patent infringement is deceptive;
(vii) The person making the assertion of patent
infringement does not own or have the right to enforce or
license the patent;
(viii) The person sent the same or substantially
similar demand letter to multiple recipients and made assertions
against a variety of products, services or technologies without
addressing product, service or technology differences in a
reasonable manner;
(ix) The person made a threat of legal action that
the person knows or should have known cannot be legally taken or
is not intended to be taken;
(x) The person falsely represents in a demand letter
that a complaint has been filed with a court alleging patent
infringement;
(xi) The claim of patent infringement is based on a
patent that has expired or has previously been held invalid or
unenforceable in a final unappealable or unappealed judicial or
administrative decision;
(xii) Any other factor the court finds relevant.
(c) A court may consider any of the following factors as
evidence that a person has not made a bad faith assertion of
patent infringement:
(i) The demand letter includes all of the information
specified in paragraph (b)(i) of this section;
(ii) If a demand letter does not contain all of the
information provided in paragraph (b)(i) of this section and the
target requests the missing information, the person provides the
missing information within thirty (30) days;
(iii) The person engages in a good faith effort to
establish that the target has infringed the patent and to
negotiate an appropriate remedy;
(iv) The person has made a substantial investment in
the use of the patent or in the production or sale of a product,
service or technology covered by the patent;
(v) The person is the inventor or joint inventor of
the patent or, if the patent is filed by and awarded to an
assignee of the original inventor or joint inventor, is the
original assignee of the patent;
(vi) The person has successfully enforced the patent
or a substantially similar patent through litigation or has
demonstrated good faith business practices in previous efforts
to enforce the patent.