National Association of Attorneys General
A Snapshot of the Latest State Legislative Session
As state legislative sessions come to a close, certain trends in enacted legislation across the country become apparent. In the absence of federal legislation, states have passed a number of bills addressing bad faith assertions filed by entities patent assertion entitles, also known as �patent trolls,� and the state attorney general has enforcement authority in such cases. Beyond the scope of patent trolls, there have also been a wide variety of bills passed in relation to consumer protection and substance abuse. This article shall discuss enacted state legislation of relevance to state attorneys general, but it is not an exhaustive list.
Challenges involving patent trolls,� continue to increase for small and large businesses around the country. The term �patent troll� refers to a shell company that acquires patents so that it may file patent infringement lawsuits and make demands for licensing fees for the use of everyday technology, such as wireless Internet or scanning devices, often sending vague and deceptive demand letters to achieve this goal. Vermont was the first state to enact legislation against such entities in May 2013 granting enforcement authority to the state attorney general, and over the past legislative session a number of states have followed suit addressing these types of lawsuits.
In Oregon SB 1540 was signed into law on March 3, giving the Oregon Department of Justice authority to take action against entities that make bad faith patent assertions. This act also allows those who have been targeted by a patent troll to sue for attorneys� fees, thereby discouraging frivolous lawsuits.
On March 26, SB 1354 was signed into law in Idaho. This law classifies demand letters as bad faith assertions when they exclude the patent numbers, the name and address of the patent owner, and any factual allegations concerning the specific areas covered by the claim in the patent. Legislation that was signed into law in South Dakota (SB 143) on March 31 includes similar criteria for bad faith demand letters. Utah�s legislation (HB 117), passed on April 1, includes provisions that permit courts to require the filing of a bond to cover costs of litigation that may not exceed $250,000. On April 15, the Georgia governor signed into law HB 809 that adds bad faith assertions of patent infringement to the list of violations of the Georgia Fair Business Practices Act. Similar legislation was signed into law in Maine (SP 654) on April 14, in Wisconsin (SB 498) on April 24, in Tennessee (HB 2117) on May 1, and in Maryland (SB585) on May 5.
In Kentucky, similar legislation (SB 116) was passed in the Senate seeking to establish a bad-faith assertion of patent infringement as a violation of Kentucky�s consumer protection statute. This legislation remains in the Kentucky House of Representatives.
A wide variety of bills passed in the consumer protection realm, involving issues ranging from telephone solicitations to organized crime.
In South Dakota, SB 23, signed into law on March 14, defines organized retail crime, establishes tough penalties for people who knowingly organize, supervise, conspire, finance, commit or assist in these crimes, and clearly criminalizes the activation or deactivation of a fire exit alarm in order to facilitate an organized retail crime. This bill was developed in 2013 by an attorney general-sponsored study group.
In Ohio HB 144 was signed into law March 4, which prohibits minors from purchasing or possessing alternative nicotine products such as e-cigarettes.
North Dakota also addressed telephone solicitations and identity theft issues in its last legislative session. North Dakota�s SB 2260, signed into law on March 19, 2013, adds prerecorded or synthesized voice messages, also known as robocalls, to the Do Not Call prohibited acts. North Dakota also passed HB 1197 which amends the definition of personal identifying information to include an individual�s photograph and an individual�s computer system name. This law also removes the requirement for the identity thief to have claimed he or she had the victim�s consent before there is an offense.
On March 31, the South Dakota governor signed into law SB 24 that requires the retailers of medication containing pseudoephedrine, ephedrine, or phenylpropanolamine to check identification and make a record of sale to be placed in an electronic recordkeeping system. The state attorney general�s office manages the implementation and access to these electronic records.
The coerced trafficking of young girls and boys into sex work has been a major focus of many attorneys general. A number of offices have been working very closely with their state legislatures on passing meaningful reform, and they have been met with much success. For more detailed information on the status of state and federal legislation, please go to the February, March, April, and May NAGTRI Human Trafficking newsletters written by NAGTRI Deputy Director Judy McKee.
Following the massive data breach of retailers such as Target, state governments have taken great interest in the issue. A number of states enacted legislation requiring entities to comply with certain standards when personally identifiable information is compromised. For more information on the status of data breach legislation, please see the update written by NAAG Cyberspace Law Chief Counsel Hedda Litwin.