37-36-4. Factors for claim of patent infringement not made in bad faith.A court may consider the following factors as evidence that a person has not made a bad faith assertion of patent infringement:(1)The demand letter contains all of the information described in subdivision 37-36-3(1);(2)If the demand letter lacks the information described in subdivision 37-36-3(1) and the target requests the information, the person provides the information within a reasonable period of time;(3)The person engages in a good faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy;(4)The person makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent;(5)The person is:(a)The inventor or joint inventor of the patent or, in the case of a patent filed by and awarded to an assignee of the original inventor or joint inventor, is the original assignee; or(b)An institution of higher education or a technology transfer organization owned or affiliated with an institution of higher education;(6)The person has:(a)Demonstrated good faith business practices in previous efforts to enforce the on or a technology transfer organization owned or affiliated with an institution of higher education;(6)The person has:(a)Demonstrated good faith business practices in previous efforts to enforce the patent, or a substantially similar patent; or(b)Successfully enforced the patent, or a substantially similar patent, through litigation;(7)Any other factor the court finds relevant. Source: SL 2014, ch 192, §4.
South Dakota Legal Code