South Dakota Codified Laws 37-36-3. Factors for bad faith assertion of infringement
A court may consider the following factors as evidence that a person has made a bad faith assertion of patent infringement:
(1) The demand letter does not contain the following information:
Terms Used In South Dakota Codified Laws 37-36-3
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Lawsuit: A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty, resulting in harm to the plaintiff.
- Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
(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) Prior to 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 subdivision (1) of this section, 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 meritless and the person knew, or should have known, that the claim is meritless;
(7) The claim of patent infringement is deceptive;
(8) The person, a subsidiary, or an affiliate has 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 subdivision (1) of this section; or
(b) The person attempted to enforce the claim of patent infringement in litigation and a court found the claim to be meritless;
(9) Any other factor the court finds relevant.
Source: SL 2014, ch 192, § 3.