What should I check?
Verify the patent number, ownership, expiration, accused products, and the sender's requested action. Ask for the asserted claims and supporting comparison. Preserve the original letter and attachments; describe discrepancies specifically rather than labeling the sender.
Does an expired patent always make the demand improper?
No. Section 271(a) concerns acts during the patent term, but a demand may seek damages for earlier acts. Section 286 generally limits recovery for infringement occurring more than six years before the complaint or counterclaim. Other limitations can apply. Check the period actually accused before drawing a conclusion from expiration alone.
Can the court award fees for an abusive case?
Section 285 permits reasonable attorney fees to a prevailing party in an exceptional patent case. Octane Fitness, LLC v. ICON Health & Fitness, Inc. directs attention to the strength of the litigating position and manner of litigation under the totality of the circumstances. That is not an automatic remedy whenever a demand letter contains an error.
What about a separate bad-faith claim?
The applicable state law, federal preemption issues, facts, and procedural setting require a separate analysis. This page does not supply a nationwide test. Take the verified discrepancies to counsel before threatening a counterclaim or making public accusations.