North Carolina Abusive Patent Assertions Act: A Powerful Gun, but Will It Hold Up in a Gunfight?

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Volume 17, Issue 3 (Mar 2016)

In the wake of press reports of abusive patent behavior, the North Carolina legislature followed other states and passed a state
law designed to curb abusive patent practices. The Abusive Patents Assertions Act (the Act), passed in 2014, creates a state law tort action for a bad faith assertion of patent infringement. A business that believes it has been targeted by a baseless assertion of patent rights can bring suit under the law or bring a counterclaim to patent infringement. The Act provides many other benefits, such as the ability of the Attorney General to join the case, and requires the patent holder to put up a bond to ensure it pays damages in the event that it loses. While the Act provides benefits, because patent law is federal subject matter, the Act also might be vulnerable to preemption by Federal law.

Jason D. Gardner & Stephen J. E. Dew, North Carolina Abusive Patent Assertions Act: A Powerful Gun, but Will It Hold Up in a Gunfight?, 17 N.C.J.L. & Tech. 391 (2016), available at http://ncjolt.org/wp-content/uploads/2016/03/Gardner_Final.pdf.

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