Many states have now passed laws prohibiting bad faith assertions of patent infringement. One example is Colorado Revised Statute 6-12-102, titled "Concerning Prohibited Communications Regarding Patents." Some examples of bad faith include falsely saying that litigation has already been filed; or seeking compensation on patents that have expired.

These laws are intended to protect companies from unfounded patent threats, which often are made by a non-practicing entity ("NPE"), or so-called patent trolls. Indeed, C.R.S. 6-12-102 is intended to only cover NPEs, and expressly does not apply to an operating company "using the patent in connection with substantial research, development, production, manufacturing, processing or delivery of products or materials,” or any institution of higher education or its technology transfer office. 

The Colorado Attorney General is responsible for enforcing this statute and can seek compensatory damages, costs and fees. The Colorado statute also provides for a civil penalty of up to $5,000 per violation. 

Some states, however, also provide a private enforcement right. Remedies under North Carolina's Abusive Patent Assertion Act ("APAA"), for example, allows recovery of damages, costs, and attorneys' fees. If there is a finding of a reasonable likelihood of success on the merits under the APAA, “the court shall require [defendant] to post a bond in an amount equal to a good-faith estimate of the target's fees and costs to litigate the claim and the amounts reasonably likely recovered.” N.C. Gen. Stat. § 75-144(a). 

In Eco Fiber Inc. v. Vance, No. 3:24-cv-00465 (W.D.N.C. June 21, 2024), the Court found that the patent owner had a reasonable likelihood of success on the merits of objective baselessness and bad faith required under the APAA, and issued a preliminary injunction against the patent owner from from making in bad faith objectively false assertions to any customer or prospective customer of Eco Fiber that insulated containers made and sold by Eco Fiber infringe U.S. Patent No. 11,772,872.

But the Court waived the bond requirement because there were no existing concerns of future insolvency by the patent owner, questions regarding the constitutionality of the APAA's bond provision had been raised, and, "[a]mong states with similar abusive patent assertion statutes, there are unresolved concerns related to potential preemption." 

Nonetheless, the Court did order Eco Fiber to post a $10,000.00 bond for the preliminary injunction "to protect Defendant in the event that Defendants are later found to have been wrongly enjoined or restrained."