An Act Regarding Bad Faith Assertions of Patent Infringement
Maine Legislature, Session 126, LD 1660
Committee: Judiciary
Sponsors: HASKELL, DeCHANT, BEAULIEU, BERRY, FOWLE

Legislative Document 
No. 1660 
S.P. 654 
In Senate, December 23, 2013 
An Act Regarding Bad Faith Assertions of Patent Infringement 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203. 
Received by the Secretary of the Senate on December 23, 2013.  Referred to the Committee 
on Judiciary pursuant to Joint Rule 308.2 and ordered printed. 
DAREK M. GRANT 
Secretary of the Senate 
Presented by Senator HASKELL of Cumberland. 
Cosponsored by Representative DeCHANT of Bath and 
Representatives: BEAULIEU of Auburn, BERRY of Bowdoinham, FOWLE of Vassalboro, 
McCABE of Skowhegan. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  14 MRSA c. 757 is enacted to read: 
CHAPTER 757 
ACTIONS FOR BAD FAITH ASSERTION OF PATENT INFRINGEMENT 
§8701.  Actions for bad faith assertion of patent infringement 
1.  Definitions.  As used in this chapter, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Demand letter" means a letter, an e-mail or other written communication 
asserting that a target has engaged in patent infringement. 
B.  "Person" means a natural person, corporation, trust, partnership, incorporated or 
unincorporated association or any other legal entity. 
C.  "Target" means a person: 
(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. 
2.  Prohibition.  A person may not make a bad faith assertion of patent infringement 
against another person. 
3.  Civil action.  A target may bring a civil action in Superior Court against a person 
who has made a bad faith assertion of patent infringement against the target.  In 
determining whether a person made a bad faith assertion of patent infringement: 
A.  The court may consider the following factors as evidence that the person made a 
bad faith assertion of patent infringement: 
(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 
B.  The court may consider the following factors as evidence that the person did not 
make a bad faith assertion of patent infringement: 
(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. 
4.  Remedies.  The court may award the following remedies to a target who prevails 
in an action brought pursuant to this subsection: 
A.  Equitable relief; 
B.  Damages; 
C.  Costs and fees, including reasonable attorney's fees; and 
D.  Punitive damages in an amount equal to $50,000 or 3 times the total damages, 
costs and fees, whichever is greater. 
5.  Action by Attorney General.  The Attorney General may bring an action to 
enjoin a violation of this chapter.  Any violation of this chapter is a violation of the Maine 
Unfair Trade Practices Act. 
6.  Bond.  When a target reasonably believes a person made a bad faith assertion of 
patent infringement against the target, the target may file a motion with the court to 
require the person to post a bond.  If the court finds the target has established a reasonable 
likelihood that the person made a bad faith assertion of patent infringement, the court 
shall require the person to post a bond in an amount equal to a good faith estimate of the 
target's costs to litigate the claim and amounts reasonably likely to be recovered under 
subsection 4.  The court shall hold a hearing if requested by either party.  A bond ordered 
pursuant to this subsection may not exceed $250,000.  The court may waive the bond 
requirement if it finds the person has available assets equal to the amount of the proposed 
bond or for other good cause shown. 
§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. 
SUMMARY 
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.