SDCL § 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 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.