(1) A person shall not, in connection with the assertion of a United States patent, send or cause any person to send any written or electronic communication that states that the intended recipient or any affiliated person is infringing or has infringed a patent and bears liability or owes compensation to another person, if such communication is in bad faith. A court may consider one or more of the following conditions as evidence that a person or the person's affiliate has, in bad faith, alleged, asserted, or claimed an infringement of a patent:
The communication falsely states that litigation has been filed against the intendedrecipient or any affiliated person;
The assertions contained in the communication lack a reasonable basis in fact or law.A court may consider one or more of the following factors as evidence that a communication lacks a reasonable basis in fact or law:
The person asserting the patent is not the person, or does not represent the person,with the current right to license the patent to, or to enforce the patent against, the intended recipient or any affiliated person;
The communication seeks compensation for a patent that has been held to be invalidor unenforceable in a final, unappealable or unappealed judicial or administrative decision;
The communication seeks compensation on account of activities undertaken afterthe patent has expired; or
The content of the communication fails to include such information necessary toinform an intended recipient or any affiliated person about the patent assertion by failing to include any one of the following:
The identity of the person asserting a right to license the patent to or enforce thepatent against the intended recipient or any affiliated person;
The patent number issued by the United States patent and trademark office alleged tohave been infringed; or
The factual allegations concerning the specific areas in which the intended recipientor affiliated person's products, services, or technology infringed the patent or are covered by the claims in the patent.
Source: L. 2015: Entire article added, (HB 15-1063), ch. 309, p. 1264, § 2, effective August 5.