Beginning January 1, 2015, Illinois consumers and businesses will have a new weapon to combat abusive patent assertion tactics. Victims will now have a remedy under the Consumer Fraud and Deceptive Business Practices Act for such violations, and patent holders should be aware of the new rules to ensure they comply with the new law (815 ILCS 505/2RRR).
The new law makes it unlawful to send any written (paper or electronic) communication alleging infringement of a patent if:
- The communication falsely states that a litigation will be, or has been, brought against the victim;
- The entity asserting the patent does not have a right to license or enforce the patent; or
- The patent has either expired or been found invalid.
The Act, however, does not prevent patent holders from enforcing their rights. To comply with the new rules, patent holders must provide several pieces of information in their letters, including: 1) the name of the person or entity asserting the patent; 2) the number of the patent allegedly infringed; and 3) “factual allegations concerning the specific areas” of alleged infringement. It is not clear how much information is required to satisfy this new standard, which will likely be an area of further development by the courts. We will continue to monitor these interpretation of the new law.