2016 Patent Troll Legislation

7/12/2016

Nine states have considered legislation to punish bad faith patent assertions in 2016. Six states - Arizona, Florida, Minnesota, Rhode Island, South Carolina and Wyoming -  have enacted legislation this term, with Florida enacting an amendment to a prior bill. There are now 32 states with laws that punish bad-faith patent assertions.

 

PLEASE NOTE: The summaries should be used for general informational purposes and not as a legal reference. NCSL is unable to answer questions or provide guidance to citizens or businesses regarding patent laws and practices. If you have questions regarding the application of a state law to a specific patent infringement letter, please contact the Office of the Attorney General in your state.

 

Legislation Related to Bad Faith Patent Assertions

Jurisdiction

Bill Number

Summary

Arizona

HB 2386

Status: ENACTED

Relates to the Patent Troll Prevention Act. Prohibits false accusations of patent infringement. Includes sending a demand to a target or a target's customers, threatening a target with ligation for patent infringement or that a target should obtain a license to a patent and pay a licensing fee; relates to a person, corporation, partnership, limited liability company, governmental entity, institution of higher education or other legal or commercial entity.

Florida

HB 1181

Status: ENACTED

Relates to bad faith assertions of patent infringement. Revises definitions. Prohibits a person from sending a demand letter to a target which makes a bad faith assertion of patent infringement. Specifies what constitutes such a demand letter. Relates to the requirement that plaintiffs post a specified bond; authorizes the award of actual damages. Revises provisions authorizing the award of punitive damages.

Florida

SB 1298

Status: Failed – 3/4/16

Relates to bad faith assertions of patent infringement. Provides for construction. Revises definitions. Prohibits a person from sending a demand letter to a target which makes a bad faith assertion of patent infringement. Specifies what constitutes such a demand letter. Relates to the requirement that a plaintiff post a specified bond in certain circumstances. Revises provisions authorizing the bringing of actions and specified remedies under the Patent Troll Prevention Act.

Illinois

SB 2887

Amends the Consumer Fraud and Deceptive Business Practices Act in relation to patent infringement claims. Provides that it is unlawful to make bad faith patent claims rather than to issue unfair or deceptive patent infringement demand letters. Defines terms. Provides that a target of a bad faith patent claim may obtain equitable relief, damages, costs, attorney's fees, and punitive damages; provides that a target may seek to require the person making the patent infringement claim to post a bond.

Kentucky

HB 190

Establishes a bad faith assertion of patent infringement as a violation of Kentucky's consumer protection chapter. Authorizes the utilization of the remedies available for those violations in addition to private remedies established in the bill.

Massachusetts SB 2367 Contains the text of an amendment 71, offered by Senator Ross, to Senate bill 4 which makes appropriations for the fiscal year 2017 for the maintenance of the departments, boards, commissions, institutions and certain activities of the Commonwealth, for interest, sinking fund and serial bond requirements and for certain permanent improvements; relative to bad faith assertions of patent infringement.
Minnesota

HB 1586

Status: ENACTED

Relates to commerce; prohibits assertions of patent infringement in bad faith; authorizes a court to consider certain factors as evidence of whether an assertion of patent infringement in bad faith or good faith has been made; provides enforcement; defines certain terms.

Originally introduced in 2015 but considered in 2016.

New Jersey

AB 310

Prohibits bad faith assertion of patent infringement.

New Jersey

SB 1696

Prohibits bad faith assertion of patent infringement.

Rhode Island

HB 7197

Authorizes the attorney general and/or aggrieved persons to file an action in superior court alleging bad faith patent infringement and seeking equitable and/or monetary relief including exemplary damages in connection with frivolous patent infringement claims.

Rhode Island

HB 7425

Status: ENACTED

Would authorize the attorney general and/or persons aggrieved to file a bad faith patent infringement suit in superior court seeking equitable and/or monetary relief from persons filing frivolous patent infringement claims as well as costs, fees, including reasonable attorney's fees and punitive damages. This act would take effect upon passage.

Rhode Island

SB 2418

Would authorize the attorney general and/or persons aggrieved to file a bad faith patent infringement suit in superior court seeking equitable and/or monetary relief from persons filing frivolous patent infringement claims as well as costs, fees, including reasonable attorney's fees and punitive damages. This act would take effect upon passage.

Rhode Island

SB 2542

Status: ENACTED

Authorizes the attorney general and/or persons aggrieved to file a bad faith patent infringement suit in superior court seeking equitable and/or monetary relief from persons filing frivolous patent infringement claims as well as costs, fees, including reasonable attorney's fees and punitive damages.

South Carolina

HB 3682

Status: ENACTED

Enacts the Bad Faith Assertion of Patent Infringement Act; prohibits bad faith assertions of patent infringements; defines terms; provides for a private cause of action in State courts; provides that enforcement actions may be brought by the Attorney General and wilful and knowing violations may result in specified limited civil penalties; provides for the factors that a court may consider when making a bad faith determination; provides for exceptions.

Wyoming

SB 65

Status: ENACTED

Relates to patent infringement. Prohibits bad faith assertion of patent infringement. Provides exceptions. Specifies factors for determination of bad faith. Provides a private right of action for damages. Provides that the attorney general may enforce the provisions of this article, investigate violations and award injunctive relief.