Monday, July 23, 2018

Maine Supreme Judicial Court: Claim Alleging Bad Faith Patent Assertion Preempted

The opinion in Puritan Medical Products Co. v. Copan Italia s.P.a is available here.  (Hat tip to Professor Paul Gugliuzza for noting this case on Twitter; his article on the subject, Patent Trolls and Preemption, 101 Va. L. Rev. 1579 (2015), is cited in the opinion.)  As I note in my recent book Patent Wars, "since 2013 over thirty state legislatures have enacted laws forbidding the 'bad faith assertion of patent infringement,'" but "Federal Circuit case law in recent years has required persons asserting more traditional unfair competition claims premised on the wrongful assertion of IP rights" to prove that the claims asserted by the defendant were both objectively and subjectively baseless; and that if this principle is correct "the impact of these state laws would appear to be rather limited."  Now the Maine Supreme Judicial Court has held that the claim asserted in this case was preempted by federal patent law, because the plaintiff did not prove by clear and convincing evidence that the defendant's assertion was objectively baseless.  For his part, Professor Gugliuzza thinks that the Maine court applied the Federal Circuit's case law correcfly, but that that case law itself is dubious.  See Gugliuzza, supra, at 1584 (arguing that “the Federal Circuit's preemption rule is wrong as a matter of doctrine, is misguided as a matter of policy, and ignores important lessons from the history of patent enforcement”).

Also on the topic of patent assertion, the IAM Blog has an interesting story this morning titled Husband and Wife Accused of Patent Troll Activity Face Criminal Extortion Charges in Shanghai.  As the author, Jacob Schindler, notes, "As cases like this come to public attention, it may be that China is headed for a big public debate over the role of NPEs in its patent system.  That could have a huge impact on almost all global tech companies, as well as local patent stakeholders in China."

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