Illinois Outlaws Deceptive Patent Infringement Letters
Effective January 1, 2015, Illinois will have a statute prohibiting persons from sending letters claiming that the recipient is infringing a patent and that litigation has been filed or will be filed, or other deceptive conduct aimed at mass mailings. The statute is an amendment to the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505.2). It makes it unlawful for someone to send letters (or emails) claiming that the recipient is infringing or has infringed a patent and owes compensation if: (1) the communication falsely threatens that a lawsuit will be filed if compensation is not paid; (2) the communication falsely states that litigation has been filed against the recipient; (3) the communication is misleading because the sender does not have the right to enforce the patent, the patent has been held invalid or unenforceable, or the communication seeks compensation for a period after the patent expired. It is also a violation if the communication fails to include certain basic information concerning the identity of the person asserting the right, the patent number, and the alleged infringement. The statute provides for a private cause of action and enforcement by the Illinois Attorney General.