An increasing number of states have passed new laws intended to address the rise in baseless patent infringement claims that target companies who often choose to pay a settlement given the high cost of litigating a patent. A recent Columbia (Missouri) Daily Tribune article, citing the American Intellectual Property Law Association survey, indicates that patent litigation costs can range from $650,000 to $5 million, depending on the amount of money at risk.
According to the article, Missouri is the latest state to pass legislation aimed at bad faith claims or assertions of patent infringement. Under the Missouri bill, the factors that a court may consider in determining whether a person made a bad faith claim include whether a demand letter lacks (1) a patent number, (2) the patent owner’s name and address, or (3) allegations about how the target infringes the patent. The article, citing the National Conference of State Legislatures, states that nine states have already enacted similar laws.
Congress is also considering patent legislation. The article indicates that 42 state attorneys general (1) support congressional action and (2) seek to ensure that states have authority to act. The U.S. Constitution authorizes Congress to grant patents that give inventors the exclusive right to their discoveries (Art. I § 8, cl. 8).
