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Kansas Treads Carefully With Its New Anti-Patent Troll Law

Kansas’ new anti-patent troll law — Sub. for Senate Bill 38, which took effect July 1, 2015 — is aimed at stopping “fraudsters” from making baseless allegations of patent infringement. Debates surrounding the bill showed particular concern for certain at-risk industries and small businesses that have little experience with patents. After weighing these interests against concerns voiced by businesses wishing to remain unburdened in their legitimate enforcement activities, Kansas lawmakers adopted a decidedly cautious approach in this new area of legislation.

Kansas’ new anti-patent troll law — Sub. for Senate Bill 38, which took effect July 1, 2015 — is aimed at stopping “fraudsters” from making baseless allegations of patent infringement. Debates surrounding the bill showed particular concern for certain at-risk industries and small businesses that have little experience with patents. After weighing these interests against concerns voiced by businesses wishing to remain unburdened in their legitimate enforcement activities, Kansas lawmakers adopted a decidedly cautious approach in this new area of legislation.

Most of the other twenty-seven states that have legislated in this area over the last couple years have provided the courts great latitude to determine over time what constitutes a “bad faith” assertion of patent infringement. After carefully considering a similar model derived from Vermont’s statute – which has served as a template in many states- Kansas went in a different direction. The finally-adopted language takes much of the discretion away from courts to decide what a “bad faith” assertion might look like, opting instead for a greater degree of predictability preferable to many area patent owners.

Namely, provisions of the new bill list specific actions or representations that are prohibited for purported patent owners to take or make. Its provisions additionally limit the right to bring a complaint to end users of allegedly infringing products, services and/or technology (meaning manufacturers or others in the sale/resale supply chain aren’t able to file suit under the new law), and provide a strong list of safe harbors for those seeking to assert their patent rights.

We stop short here of a comprehensive treatment of the new law, but we will provide further updates if and when the courts get a chance to interpret the new law.