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Regular Session, 2014 ENROLLED
SENATE BILL NO. 255
BY SENATOR MARTINY
AN ACT1
To enact R.S. 51:1428, relative to Unfair Trade Practices and Consumer Protection Law; to2
provide relative to patent infringement; to provide for definitions; to provide for3
unfair and deceptive trade practices; to provide for damages; to provide for4
procedures, terms, and conditions; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 51:1428 is hereby enacted to read as follows:7
ยง1428. Unfair or deceptive trade practice or act; bad faith assertions of patent8
infringement9
A. As used in this Section, the following words and phrases shall have the10
following meanings:11
(1) "Demand letter" means a letter, email, or other communication that12
does either of the following:13
(a) Asserts, alleges, or claims that the end-user has engaged in patent14
infringement.15
(b) Requests or demands the end-user to obtain a license to a patent or16
to otherwise pay compensation in order to avoid litigation.17
(2) "End-user" means a consumer, whether an individual, business, or18
financial institution, who purchases, rents, leases, or otherwise obtains a19
product, service, or technology in the commercial market that is not for resale20
and is, or later becomes, the subject of a patent infringement assertion.21
B.(1) No person shall make a bad faith assertion of patent infringement22
against an end-user.23
(2) A court may consider any of the following factors as evidence that a24
person has made a bad faith assertion of patent infringement against an end-25
user:26
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(a) The demand letter received by the end-user does not contain all of the1
following information:2
(i) The patent number or the patent application number, if no patent3
number has been issued.4
(ii) The name and address of the patent owner or owners and assignee5
or assignees, if any.6
(iii) The factual allegations concerning the specific areas in which the7
products, services, or technology obtained by the end-user, or their use thereof,8
infringe the patent or are covered by the claims in the patent.9
(b) The person sends a demand letter to an end-user without first making10
a reasonable effort to conduct an analysis comparing the claims in the patent11
to the products, services, or technology obtained by the end-user, or to identify12
specific areas in which the products, services, or technology are covered by the13
claims in the patent.14
(c) When the demand letter lacks the information described in15
Subparagraph (2)(a) of this Subsection and the end-user requests information16
from the person, the person fails to provide the requested information within17
a reasonable period of time.18
(d) The demand letter requires payment of a license fee or response from19
an end-user within an unreasonably short period of time.20
(e) The claim or assertion of patent infringement against an end-user is21
without merit, and the person knew or should have known that the claim or22
assertion is without merit.23
(f) The person or its subsidiaries or affiliates have previously filed or24
threatened to file one or more lawsuits against an end-user based on the same25
or similar claim of patent infringement, and those lawsuits or threats lacked the26
information described in Subparagraph (2)(a) of this Subsection.27
(g) The demand letter or assertion of patent infringement contains any28
material misrepresentation of fact.29
(3) A court may consider any of the following factors as evidence that an30 SB NO. 255 ENROLLED
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assertion of patent infringement against an end-user was not made in bad faith:1
(a) The demand letter received by an end-user contains the information2
described in Subparagraph (2)(a) of this Subsection.3
(b) When the demand letter lacks the information described in4
Subparagraph (2)(a) of this Subsection and the end-user requests the5
information, the person provides the information within a reasonable period of6
time.7
(c) The person engages in a good faith effort to establish that the end-8
user has infringed or may be infringing the patent.9
(d) The person or affiliate makes a substantial investment in the use of10
the patent or in the production or sale of a product, service, or technology11
covered by the patent.12
(e) The person is either of the following:13
(i) The inventor or joint inventor of the patent or, in the case of a patent14
filed by and awarded to an assignee of the original inventor or joint inventor,15
the original assignee.16
(ii) An institution of higher education or a technology transfer17
organization owned by or affiliated with an institution of higher education.18
(f) The person has demonstrated good faith business practices in19
previous efforts to enforce the patent, or a substantially similar patent or has20
successfully enforced the patent, or a substantially similar patent, through21
litigation.22
(g) Any other factor the court finds relevant.23
C.(1) The attorney general has the sole authority to investigate and24
pursue any violation of this Section as an unfair or deceptive trade practice or25
act pursuant to R.S. 51:1401 et seq.26
(2) Any person who is found liable under the provisions of this Section27
shall be liable to the attorney general for all costs, expenses, and fees related to28
investigations and proceedings associated with the violation, including attorney29
fees. An action to recover costs, expenses, fees, and attorney fees shall be30 SB NO. 255 ENROLLED
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ancillary to, and shall be filed and heard in the same court as a civil action filed1
under the provisions of this Section.2
D. The remedies and rights provided under this Section are in addition3
to and do not preclude any right or remedy otherwise authorized by law.4
E. Any person outside the state asserting patent infringement by an end-5
user in the state shall be deemed to be transacting business within the state6
within the meaning of R.S.13:3201 and shall thereby be subject to the7
jurisdiction of the courts of this state.8
Section 2. This Act shall become effective upon signature by the governor or, if not9
signed by the governor, upon expiration of the time for bills to become law without signature10
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If11
vetoed by the governor and subsequently approved by the legislature, this Act shall become12
effective on the day following such approval.13
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: