MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	   2018	ME	90	
Docket:	     BCD-17-180	
Argued:	     November	14,	2017	
Decided:	    July	3,	2018	
	
Panel:	      SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:	ALEXANDER,	J.	
	
	
                  PURITAN	MEDICAL	PRODUCTS	COMPANY	LLC	
                                     	
                                    v.	
                                     	
                            COPAN	ITALIA	S.P.A.	
	
	
HUMPHREY,	J.	

       [¶1]		 Puritan	Medical	Products	Company	LLC	appeals	from	 a	summary	

judgment	entered	in	the	Business	and	Consumer	Docket	(Mulhern,	J.)	in	favor	

of	 Copan	 Italia	 S.p.A.	 on	 Puritan’s	 claim	 that	 Copan	 violated	 Maine’s	 Actions	

for	 Bad	 Faith	 Assertion	 of	 Patent	 Infringement	 statute,	 14	 M.R.S.	

§§	8701-8702	 (2017).	 	 Although	 the	 court	 granted	 Copan’s	 motion	 for	

summary	 judgment	 after	 finding	 no	 genuine	 issues	 of	 material	 fact	 and	

determining	 that	 Copan	 was	 entitled	 to	 judgment	 as	 a	 matter	 of	 law,	 Copan	

filed	a	cross-appeal	to	preserve	its	separate	argument	that	Puritan’s	claim	was	

preempted	by	federal	patent	law.		Because	we	conclude	that	Puritan’s	claim	is	
2	

preempted,	 we	 affirm	 the	 grant	 of	 summary	 judgment	 in	 favor	 of	 Copan	 on	

other	grounds.	

                                               I.		BACKGROUND	

          [¶2]	 	 Puritan	 and	 Copan	 both	 produce	 flocked	 swabs1	 that	 are	 sold	

throughout	the	world.		Copan	has	developed,	produced,	and	marketed	flocked	

swabs	since	2003	and	currently	holds	patents	in	both	Europe	and	the	United	

States.		Headquartered	in	Italy,	Copan	also	maintains	facilities	in	China	and	the	

United	 States	 and	 employs	 450	 people.	 	 In	 2015,	 Copan	 produced	 over	 50	

million	flocked	swabs.			

          [¶3]	 	 Puritan	 also	 manufactures	 flocked	 swabs.	 	 Based	 in	 Guilford,	

Maine,	 Puritan	 employs	 250	 people.	 	 In	 2010,	 Puritan	 applied	 for	 patents	

relating	 to	 flocked	 swabs	 and	 began	 producing,	 marketing,	 and	 selling	 its	

flocked	swabs	in	countries	where	Copan	holds	patents.			

          [¶4]	 	 In	 2011,	 Copan	 became	 concerned	 that	 some	 of	 Puritan’s	 flocked	

swabs	infringed	its	European	and	United	States	patents.		Copan	alleged	that	it	


     1	 	 A	 flocked	 swab	 is	 a	 device	 used	 for	 the	 collection	 of	 biological	 specimens.	 	 Contrary	 to	 the	

concurrence’s	 characterization	 of	 these	 products	 as	 “glorified	 ‘Q-tips,’”	 the	 flocked	 swabs	
manufactured	 by	 Copan	and	 Puritan	 are	 used	for	 the	 “collection	 of	 microbiological	 specimens	 for	
the	 transport	 and	 preservation	 to	 the	 laboratory	 for	 use	 in	 the	 medical,	 forensic,	 and	 nonclinical	
applications.”	 	 See	 Concurring	 Opinion	 ¶	 30.	 	 Indeed,	 Copan’s	 name	 stands	 for	 “COllection	 and	
Preservation	for	ANalysis.”		Q-tipsâ,	or	generic	cotton	swabs,	on	the	other	hand,	are	advertised	as	
“perfect	 for	 arts	 &	 crafts,	 manicures,	 makeup	 application,	 cleaning	 and	 more!”	 	 Q-TIPSâ	 Cotton	
Swabs,	Q-tips,	http://www.qtips.com/products/qtips-cotton-swabs/	(last	visited	June	28,	2018).			
                                                                                                           3	

commissioned	 external	 and	 performed	 internal	 examinations	 of	 Puritan’s	

flocked	swabs	to	compare	them	to	Copan’s	patents.2		Based	on	the	results	of	

that	 testing,	 Copan	 sent	 a	 letter	 to	 Puritan’s	 distributor	 on	 June	 8,	 2011,	

communicating	its	belief	that	Puritan’s	swabs	infringed	Copan’s	patents.			

        [¶5]	 	 In	 2012,	 Copan	filed	a	claim	against	Puritan	in	 Germany,	 alleging	

infringement	 of	 its	 German	 utility	 models,3	 which	 evolve	 from	 its	 European	

patents.	 	 Through	 those	 proceedings,	 Copan	 received	 additional	 information	

about	the	composition	of	Puritan’s	flocked	swabs	from	tests	performed	by	two	

court-appointed	experts.		Copan	interpreted	the	results	of	the	tests	to	confirm	

that	 Puritan’s	 flocked	 swabs	 fall	 within	 the	 scope	 of	 protection	 afforded	 by	

some	of	Copan’s	patents.		Puritan	denies	that	the	experts’	findings	confirmed	

infringement.		Although	aspects	of	the	German	proceedings	are	still	pending,	

Copan	 won	 a	utility	model	infringement	case	 against	Puritan	 in	 2014	and,	in	

2015,	 one	 of	 its	 European	 patents	 and	 a	 utility	 model	 were	 confirmed	 to	 be	

valid.			

        [¶6]		In	the	spring	of	2015,	Copan	learned	that	Puritan’s	flocked	swabs	

may	 have	 been	 offered	 as	 part	 of	 a	 bid	 by	 a	 distributer,	 GE	 Healthcare	 Life	

   2		The	parties	dispute	the	existence	and	the	findings	of	those	examinations.			


   3		According	to	the	record,	a	German	utility	model	is	an	intellectual	property	right,	similar	to	a	

patent	 in	 some	 respects,	 but	 lasting	 only	 ten	 years,	 whereas	 a	 patent’s	 protection	 lasts	 twenty	
years.			
4	

Sciences,	 to	 supply	 the	 French	 Gendarmerie	 with	 forensic	 products.	 	 Copan	

sent	 letters	 to	 GE	 Healthcare4	 and	 the	 French	 Gendarmerie,	 explaining	 that	

Puritan’s	 flocked	 swabs	 may	 infringe	 upon	 Copan’s	 patents.	 	 The	 French	

Gendarmerie	did	not	accept	GE	Healthcare’s	offer.			

         [¶7]		In	September	2015,	Puritan	filed	a	complaint	in	the	Superior	Court	

in	Piscataquis	County	against	Copan	pursuant	to	Maine’s	Actions	for	Bad	Faith	

Assertion	of	Patent	Infringement	statute.		See	14	M.R.S.	§§	8701-8702.		Shortly	

thereafter,	 the	 case	 was	 transferred	 to	 the	 Business	 and	 Consumer	 Docket.		

Copan	 answered	 the	 complaint	 and	 asserted	 affirmative	 defenses,	 including	

that	 Puritan’s	 claim	 was	 preempted	 by	 United	 States	 federal	 patent	 law.5		

After	more	than	one	year	of	discovery,	Copan	moved	for	summary	judgment,	

arguing	 that	 federal	 patent	 law	 preempted	 Puritan’s	 claim	 and,	 in	 the	

alternative,	 that	 the	 record	 showed	 no	 genuine	 issue	 of	 material	 fact	 on	 the	

merits	and	that	it	was	entitled	to	summary	judgment	as	a	matter	of	law.			

         [¶8]	 	 The	 court	 granted	 Copan’s	 motion	 for	 summary	 judgment.	 	 It	

concluded	 (1)	 that	 it	 had	 jurisdiction	 to	 consider	 Puritan’s	 claim	 because	 it	


     4		Copan’s	letter	to	GE	Healthcare	is	the	“demand	letter”	in	this	case.		See	14	M.R.S.	§	8701(1)(A)	

(2017).			
     5		Copan’s	original	answer,	filed	in	October	2015,	did	not	include	preemption	as	an	affirmative	

defense.	 	 The	 court	 granted	 Copan	 leave	 to	 amend	 its	 answer	 in	 December	 2016,	 and	 Copan’s	
amended	answer	included	an	“affirmative	defense”	of	preemption.			
                                                                                                          5	

was	not	preempted	by	federal	patent	law,	and	(2)	that	there	were	no	genuine	

issues	of	material	fact	and	Copan	was	entitled	to	summary	judgment.6			

        [¶9]	 	 Puritan	 filed	 an	 appeal	 from	 the	 summary	 judgment,	 and	 Copan	

filed	 a	 cross-appeal,	 challenging	 the	 court’s	 conclusion	 that	 Puritan’s	 claim	

was	not	preempted	by	federal	law.		M.R.	App.	P.	2	(Tower	2016).7			

                                           II.		DISCUSSION	

	       [¶10]		We	review	the	entry	of	an	order	for	summary	judgment	de	novo	

for	errors	of	law,	viewing	the	evidence	in	the	light	most	favorable	to	the	party	

against	whom	summary	judgment	was	entered.		See	Diviney	v.	Univ.	of	Me.	Sys.,	

2017	ME	56,	¶	14,	158	A.3d	5.	

        [¶11]		Before	we	can	reach	Puritan’s	challenge	to	the	trial	court’s	grant	

of	 summary	 judgment,	 we	 must	 first	 decide	 whether	 federal	 patent	 law	

preempts	 Puritan’s	 state	 law	 claim.	 	 See	 James	 v.	 Inhabitants	 of	 the	 Town	 of	

West	 Bath,	 437	 A.2d	 863,	 865	 n.3	 (Me.	 1981)	 (explaining	 that	 a	 court	 will	

decide	 whether	 a	 law	 or	 ordinance	 is	 preempted	 before	 addressing	 the	



    6		The	concurrence’s	assertion	that	this	Court	“elects	to	reach	out	[and]	invoke	the	federal	law	of	

preemption,”	 see	 Concurring	 Opinion	 ¶¶	 33,	 35,	 37,	 ignores	 the	 fact	 that	 the	 trial	 court	 also	
analyzed	the	preemption	issue,	and	did	so	before	reaching	the	merits	of	Puritan’s	state	law	claim,	
thus	understanding	that	preemption	is	a	threshold	issue.		Preemption	was	an	issue	before	the	trial	
court,	and	it	was	raised	as	an	issue	on	appeal.			
    7		These	appeals	were	commenced	before	September	1,	2017,	and	therefore	the	restyled	Maine	

Rules	of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1.			
6	

substantive	 argument).	 	 “Federal	 preemption,	 which	 involves	 issues	 of	

statutory	 and	 constitutional	 interpretation,	 is	 a	 question	 of	 law	 reviewed	 de	

novo.”	 	 In	 re	 Guardianship	 of	 Smith,	 2011	 ME	 51,	 ¶	 10,	 17	 A.3d	 136.	 	 If	 we	

conclude	that	Puritan’s	state	law	claim	is	preempted,	we	will	not	address	the	

parties’	 substantive	 arguments	 on	 the	 merits	 of	 Puritan’s	 claim.	 	 See	

Doe	v.	Portland	Hous.	Auth.,	656	A.2d	1200,	1202	(Me.	1995);	James,	437	A.2d	

at	865	n.3.			

       [¶12]	 	 We	 begin	 by	 clarifying	 the	 legal	 standard	 for	 federal	 patent	 law	

preemption	 and	 apply	 it	 to	 the	 facts	 presented	 in	 the	 parties’	 statements	 of	

material	 facts	 and	 the	 supporting	 evidentiary	 materials,	 with	 disputes	

resolved	 in	 Puritan’s	 favor.	 	 See	 Scott	 v.	Androscoggin	 Cty.	 Jail,	 2004	 ME	 143,	

¶¶	2,	15,	866	A.2d	88.			

A.	    Preemption	and	Federal	Patent	Law	

       [¶13]	 	 The	 Supremacy	 Clause	 of	 the	 United	 States	 Constitution	 states	

that	 the	 “Constitution,	 and	 the	 Laws	 of	 the	 United	 States	 .	 .	 .	 shall	 be	 the	

supreme	 Law	 of	 the	 Land.”	 	 U.S.	 Const.	 art.	 VI,	 cl.	 2.	 	 Federal	 preemption	 of	

state	 law	 takes	 three	 forms:	 express	 preemption,	 field	 preemption,	 and	

conflict	 preemption.	 	 See,	 e.g.,	 English	 v.	 Gen.	 Elec.	 Co.,	 496	 U.S.	 72,	 78-79	

(1990).	 	 Express	 preemption	 occurs	 when	 Congress	 defines	 “explicitly	 the	
                                                                                                    7	

extent	 to	 which	 its	 enactments	 pre-empt	 state	 law.”	 	 Id.	 at	 78.	 	 Field	

preemption	occurs	when	a	state	law	attempts	to	“regulate[]	conduct	in	a	field	

that	Congress	intended	the	Federal	Government	to	occupy	exclusively.”		Id.	at	

79.		Finally,	conflict	preemption	occurs	“where	state	law	stands	as	an	obstacle	

to	 the	 accomplishment	 and	 execution	 of	 the	 full	 purposes	 and	 objectives	 of	

Congress.”8		Id.	(quotation	marks	omitted).			

       [¶14]	 	 The	 United	 States	 Court	 of	 Appeals	 for	 the	 Federal	 Circuit,	 the	

federal	 court	 with	 jurisdiction	 over	 patent	 law	 appeals,	 has	 determined	 that	

federal	 patent	 law	 neither	 fully	 occupies	 the	 field	 nor	 expressly	 preempts	

state	 patent	 law.	 	 See	 Ultra-Precision	 Mfg.,	 Ltd.	 v.	 Ford	 Motor	 Co.,	 411	 F.3d	

1369,	1377	(Fed.	Cir.	2005).		Therefore,	federal	patent	law	preempts	state	law	

only	when	the	state	law	directly	conflicts	with	federal	law.		See	id.			

       [¶15]	 	 At	 the	 heart	 of	 it,	 federal	 patent	 law	 protects	 a	 patent	 holder’s	

good-faith	      assertion	      of	    patent	     infringement.	        	   See	    Globetrotter	

Software,	Inc.	v.	Elan	Comput.	Grp.,	Inc.,	362	F.3d	1367,	1374	(Fed.	Cir.	 2004);	

see	also	Virtue	v.	Creamery	Package	Mfg.	Co.,	227	U.S.	8,	37-38	(1913)	(“Patents	

would	 be	 of	 little	 value	 if	 infringers	 of	 them	 could	 not	 be	 notified	 of	 the	


   8		Conflict	preemption	can	also	occur	“where	it	is	impossible	for	a	private	party	to	comply	with	

both	state	and	federal	requirements.”		See	English	v.	Gen.	Elec.	Co.,	496	U.S.	72,	79	(1990);	see	also	
Bourgoin	v.	Twin	Rivers	Paper	Co.,	2018	ME	77,	¶	10,	---	A.3d	---.	
8	

consequences	of	infringement	or	proceeded	against	in	the	courts.”);	Aronson	v.	

Orlov,	116	N.E.	951,	955	(Mass.	1917)	(“The	owner	of	a	patent	already	issued	

may	notify	infringers	and	warn	of	his	intent	to	protect	his	rights,	if	he	acts	in	

good	 faith.”).	 	 A	 patent	 holder,	 “acting	 in	 good	 faith	 on	 its	 belief	 as	 to	 the	

nature	 and	 scope	 of	 its	 rights,	 is	 fully	 permitted	 to	 press	 those	 rights	 even	

though	 [it]	 may	 misconceive	 what	 those	 rights	 are.”	 	 Mikohn	 Gaming	 Corp.	 v.	

Acres	 Gaming,	 Inc.,	 165	 F.3d	 891,	 897	 (Fed.	 Cir.	 1998)	 (quotation	 marks	

omitted).			

       [¶16]		Relevant	to	the	conflict	preemption	analysis,	it	is	fundamental	to	

the	 federal	 patent	 law’s	 protection	 accorded	 to	 patent	 holders	 that	 state	 law	

claims	 “against	 a	 patent	 holder	.	 .	 .	 based	 on	 enforcing	 a	 patent	 in	 the	

marketplace[]	are	‘preempted’	by	federal	patent	laws,	unless	the	claimant	can	

show	 that	 the	 patent	 holder	 acted	 in	 ‘bad	 faith’	 in	 the	 publication	 or	

enforcement	 of	 its	 patent.”	 	 See	 800	Adept,	 Inc.	 v.	 Murex	 Sec.,	 Ltd.,	 539	 F.3d	

1354,	1369	(Fed.	Cir.	2008);	see	also	Globetrotter,	362	F.3d	at	1374	(“We	have	

held	 that	 federal	 patent	 law	 preempts	 state-law	 tort	 liability	 for	 a	

patentholder’s	 good	 faith	 conduct	 in	 communications	 asserting	 infringement	

of	 its	 patent	 and	 warning	 about	 potential	 litigation.”);	 Mikohn	 Gaming,	 165	

F.3d	 at	 894	 (stating	 that	 “a	 notice	 of	 patent	 rights	 that	 is	 protected	 under	
                                                                                                               9	

federal	 law	 can	 not	 be	 held	 violative	 of	 state	 law	 on	 a	 different	 legal	

standard”).9	 	 In	 order	 for	 a	 state	 law	 claim	 “to	 avoid	 preemption,	 bad	 faith	

must	 be	 alleged	 and	 ultimately	 proven,	 even	 if	 bad	 faith	 is	 not	 otherwise	 an	

element	 of	 the	 [state	 law]	 claim.”	 	 Globetrotter,	 362	 F.3d	 at	 1374	 (quotation	

marks	omitted).		In	other	words,	“federal	patent	laws	.	.	.	bar	state-law	liability	

for	 communications	 concerning	 alleged	 infringement	 so	 long	 as	 those	

communications	are	not	made	in	‘bad	faith.’”		Id.	at	1374-75.	

        [¶17]	 	 Because	 “[b]ad	 faith	 includes	 separate	 objective	 and	 subjective	

components,”	 Dominant	 Semiconductors	 Sdn.	 Bhd.	 v.	 OSRAM	 GmbH,	 524	 F.3d	

1254,	 1260	 (Fed.	 Cir.	2008), determining	 whether	 a	 patent	 holder	 acted	 in	

bad	faith	involves	a	two-step	inquiry.		First,	to	survive	a	motion	for	summary	

judgment,	 the	 plaintiff	 must	 present	 evidence	 that	 the	 patent	 holder’s	

allegations	 of	 patent	 infringement	 were	 “objectively	 baseless,”	 meaning	 that




   9		Other	state	courts	have	acknowledged	this	conflict	preemption	in	patent	law.		See,	e.g.,	Xitronix	

Corp.	v.	KLA-Tencor	Corp.,	No.	O3-12-00206-CV,	2014	Tex.	App.	LEXIS	8592,	at	*6	(Tex.	App.	Aug.	7,	
2014)	(“Federal	patent	law	generally	preempts	state-law	tort	liability,	including	claims	for	tortious	
interference	 and	 unfair	 competition,	 essentially	 immunizing	 a	 patentee	 from	 liability	 when	 it	 in	
good	faith	publicizes	allegations	of	infringement	of	its	patent.”);	Step	Saver,	Inc.	v.	Glacier	Salt,	Inc.,	
A04-1805,	 2005	 Minn.	 App.	 LEXIS	 656,	 at	 *8	 (Minn.	 Ct.	 App.	 June	 14,	 2005)	 (explaining	 that	 “if	 a	
plaintiff	 bases	 an	 action	 on	 conduct	that	 is	protected	 or	 governed	 by	 federal	patent	 law,	 then	the	
plaintiff	 may	 not	 invoke	 the	 state	 law	 remedy,	 which	 must	 be	 preempted	 for	 conflict	 with	 the	
federal	patent	law”).	
10	

“no	reasonable	litigant	could	realistically	expect	success	on	the	merits.”10		See	

GP	 Indus.	 v.	 Eran	 Indus.,	 500	 F.3d	 1369,	 1374	 (Fed.	 Cir.	 2007)	 (quotation	

marks	omitted).		Second,	in	the	context	 of	summary	judgment,	if	the	plaintiff	

presents	 evidence	 that	 the	 patent	 holder’s	 allegations	 were	 objectively	

baseless,	 it	 then	 must	 also	 present	 evidence	 that	 the	 patent	 holder	 acted	 in	

subjective	bad	faith.		See	800	Adept,	539	F.3d	at	1370.			

         [¶18]		In	sum,	federal	patent	law	protects	good	faith	assertions	of	patent	

infringement,	 and	 there	 exists	 “a	 presumption	 that	 the	 assertion	 of	 a	 duly	

granted	 patent	 is	 made	 in	 good	 faith.”	 	 See	 Golan	 v.	 Pingel	 Enter.,	 310	 F.3d	

1360,	 1371	 (Fed.	 Cir.	 2002)	 (quotation	 marks	 omitted).	 	 Any	 state	 law	 claim	

that	 conflicts	 with	 the	 federal	 law’s	 protection	 of	 good	 faith	 assertions	 of	

patent	infringement	would	be	preempted.		See	Globetrotter,	362	F.3d	at	1374.		

Only	when	a	party	alleging	a	state	law	claim	demonstrates	that	the	assertion	

of	 patent	 infringement	 was	 objectively	 baseless	 and	 made	 in	 subjective	 bad	

faith	 will	 the	 claim	 escape	 preemption	 and	 be	 able	 to	 be	 considered	 on	 the	

merits	of	the	state	law	cause	of	action.			




   10	  	 The	 objectively	 baseless	 standard	 applies	 “outside	 the	 context	 of	 actual	 litigation”	 to	
“state-law	 claims	 based	 on	 communications	 alleging	 patent	 infringement.”	 	 Globetrotter	 Software,	
Inc.	v.	Elan	Comput.	Grp.,	Inc.,	362	F.3d	1367,	1376-77	(Fed.	Cir.	2004).	
                                                                                                        11	

B.	     Maine’s	Law	

        [¶19]	 	 In	 2014,	 Maine’s	 Legislature	 enacted	 14	 M.R.S.	 §§	 8701-8702,	

entitled	Actions	for	Bad	Faith	Assertion	of	Patent	Infringement.		See	P.L.	2013,	

ch.	543	(effective	Aug.	1,	2014).		In	doing	so,	Maine	joined	a	growing	number	

of	states	that	have	passed	similar	laws	in	an	attempt	to	address	the	problems	

presented	 by	 patent	 trolls11	 and	 bad	 faith	 assertions	 of	 patent	 infringement.		

See	An	Act	Regarding	Bad	Faith	Assertions	of	Patent	Infringement:	Hearing	on	

L.D.	 1660	 Before	 the	 J.	 Standing	 Comm.	 on	 the	 Judiciary,	 126th	 Legis.	 (2014)	

(testimony	 of	 John	 D.	 Delahanty,	 Esq.);	 Paul	 R.	 Gugliuzza,	 Patent	 Trolls	 and	

Preemption,	101	Va.	L.	Rev.	1579,	1593	(2015).			

        [¶20]	 	 The	 Maine	 statute	 prohibits	 a	 person	 from	 making	 “a	 bad	 faith	

assertion	 of	 patent	 infringement	 against	 another	 person.”	 	 14	M.R.S.	

§	8701(2).	 	 The	 statute	 does	 not	 define	 the	 phrase	 “bad	 faith	 assertion”	 but	

lists	factors	a	court	may	consider	to	determine	whether	a	defendant	has	made	

a	 bad	 faith	 assertion,	 including	 certain	 deficiencies	 in	 the	 demand	 letter;	 a	

demand	 for	 payment	 of	 a	 fee	 within	 an	 unreasonably	 short	 period	 of	 time;	

actual	 or	 constructive	 knowledge	 by	 the	 patent	 holder	 that	 the	 assertion	 of	

   11		Patent	trolls	are	companies,	typically	that	do	not	produce	any	product	or	provide	any	service,	

that	purchase	patents	for	the	sole	purpose	of	suing	other	companies	for	patent	infringement.		See	
An	 Act	 Regarding	 Bad	 Faith	 Assertions	 of	 Patent	 Infringement:	 Hearing	 on	 L.D.	 1660	 Before	 the	
J.	Standing	Comm.	on	the	Judiciary,	126th	Legis.	(2014)	(testimony	of	Sen.	Anne	Haskell).				
12	

patent	infringement	was	meritless;	and	the	deceptive	nature	of	the	assertion.		

14	M.R.S.	§	8701(3)(A).		The	statute	also	lists	factors	that	a	court	may	consider	

as	evidence	that	a	defendant	did	not	make	a	bad	faith	assertion:	the	demand	

letter	 was	 not	 deficient;	 the	 defendant	 made	 a	 good	 faith	 effort	 to	 establish	

that	 the	 plaintiff	 infringed	 the	 patent;	 the	 defendant	 made	 a	 substantial	

investment	in	the	use	of	the	patent	or	in	the	production	or	sale	of	a	product	or	

item	 covered	 by	 the	 patent;	 and	 the	 defendant	 demonstrated	 good	 faith	

business	practices	in	previous	efforts	to	enforce	the	patent	or	a	substantially	

similar	patent.		14	M.R.S.	§	8701(3)(B).			

      [¶21]		With	this	understanding	of	the	state	law,	our	task	is	to	determine	

whether	its	application	in	this	case	is	in	conflict	with	federal	patent	law.			

C.	   Federal	Preemption	of	Claims	Alleged	Pursuant	to	14	M.R.S.	§	8701	

      [¶22]	 	 Maine’s	 statute	 does	 not	 require	 a	 plaintiff	 to	 prove	 that	 the	

patent	 holder’s	 allegation	 of	 patent	 infringement	 was	 objectively	 baseless	 or	

made	in	subjective	bad	faith	pursuant	to	the	federal	“bad	faith”	standard.		See	

800	Adept,	 539	 F.3d	 at	 1370;	 see	 also	 14	 M.R.S.	 §	8701.	 	 Although	 one	 of	 the	

factors	a	court	may	consider	as	indicative	of	bad	faith	under	the	Maine	statute	

is	 similar	 to	 the	 federal	 standard—that	 “[t]he	 person	 knew	 or	 should	 have	

known	 that	 the	 assertion	 of	 patent	 infringement	 is	 meritless”—it	 is	 not	 a	
                                                                                                        13	

required	element	of	a	“bad	faith	assertion”	pursuant	to	the	Maine	statute.		See	

14	M.R.S.	 §	8701(3)(A)(6).	 	 Certainly,	 there	 will	 be	 cases	 where	 a	 plaintiff	

satisfies	 the	 two-part	 test	 in	 order	 to	 avoid	 federal	 preemption	 in	 a	 claim	

alleged	 pursuant	 to	 Maine’s	 statute,	 but	 there	 will	 also	 be	 instances	 where	 a	

plaintiff	utilizing	 Maine’s	statute	will	not	meet	its	burden.		However,	“a	state	

law	is	not	per	se	preempted	unless	every	fact	situation	that	would	satisfy	the	

state	 law	 is	 in	 conflict	 with	 federal	 law.”12	 	 Hunter	 Douglas,	 Inc.	 v.	 Harmonic	

Design,	 Inc.,	 153	 F.3d	 1318,	 1335	 (Fed.	 Cir.	 1998)	 (citing	 Cal.	 Coastal	

Comm’n	v.	Granite	 Rock	 Co.,	 480	 U.S.	 572,	 580	 (1987)),	 overruled	 on	 other	

grounds	 by	 Midwest	 Indus.,	 Inc.	 v.	 Karavan	 Trailers,	 Inc.,	 175	 F.3d	 1356	 (Fed.	

Cir.	 1999).	 	 Therefore,	 “[e]xactly	 what	 constitutes	 bad	 faith	 remains	 to	 be	

determined	on	a	case	by	case	basis.”		Zenith	Elecs.	Corp.	v.	Exzec,	Inc.,	182	F.3d	

1340,	1354	(Fed.	Cir.	1999).		The	Federal	Circuit	has	described	the	analysis	for	

conflict	preemption	in	the	patent	law	arena	as	an	“as-applied”	approach.		See	

Hunter	Douglas,	153	F.3d	at	1335.			



   12		Courts	regularly	employ	a	case-by-case	analysis	in	issues	of	conflict	preemption.		See,	e.g.,	Cal.	

Coastal	Comm’n	v.	Granite	Rock	Co.,	480	U.S.	572,	580-81,	593-94	(1987)	(holding	that	the	specific	
application	 of	 a	 state	 regulation	 did	 not	 conflict	 with	 federal	 law	 but	 explaining	 that	 other	
applications	 of	 the	 same	 regulation	 might	 subject	 such	 application	 to	 conflict	 preemption);	
Allis-Chalmers	Corp.	v.	Lueck,	471	U.S.	202,	220	(1985)	(explaining	in	its	interpretation	of	the	federal	
Labor	 Management	 Relations	 Act	 that	 “[t]he	 full	 scope	 of	 the	 pre-emptive	 effect	 of	 federal	
labor-contract	law	remains	to	be	fleshed	out	on	a	case-by-case	basis”).	
14	

      [¶23]	 	 “To	 survive	 summary	 judgment,	 [Puritan]	 must	 present	

affirmative	 evidence	 sufficient	 for	 a	 reasonable	 jury	 to	 conclude”	 that	 the	

patent	holder’s	assertion	was	objectively	baseless	and	made	in	subjective	bad	

faith	 in	 order	 to	 overcome	 the	 “presumption	 that	 the	 assertion	 of	 a	 duly	

granted	patent	is	made	in	good	faith.”	See	Golan,	310	F.3d	at	1371	(quotation	

marks	 omitted).	 	 “[T]he	 bad	 faith	 standard	 .	 .	 .	 cannot	 be	 satisfied	 in	 the	

absence	 of	 a	 showing	 that	 the	 claims	 asserted	 were	 objectively	 baseless.”		

Dominant	 Semiconductors,	 524	 F.3d	 at	 1260.	 	 Accordingly,	 in	 determining	

whether	Puritan’s	specific	state	law	claim	is	preempted	by	federal	patent	law,	

our	 first	 inquiry	 is	 whether	 Copan’s	 assertions	 of	 potential	 patent	

infringement	in	its	demand	letter	were	objectively	baseless.		See	Globetrotter,	

362	 F.3d	 at	 1377;	 see	 also	 800	 Adept,	 539	 F.3d	 at	 1370	 (“Absent	 a	 showing	

that	the	infringement	allegations	are	objectively	baseless,	it	is	unnecessary	to	

reach	the	question	of	the	patentee’s	intent.”).			

      1.	    Objectively	Baseless	

      [¶24]	 	 To	 satisfy	 the	 objectively	 baseless	 prong	 at	 the	 summary	

judgment	 stage,	 Puritan	 would	 have	 to	 present	 sufficient	 evidence	 that,	 in	

light	of	the	clear	and	convincing	standard	that	would	adhere	at	a	trial,	would	

allow	 a	 fact-finder	 to	 determine	 that	 Copan	 was	 incorrect	 or	 false	 in	 its	
                                                                                                  15	

assertion	of	its	patent.		See	Globetrotter,	362	F.3d	at	1377;	Golan,	310	F.3d	at	

1371;	 Mikohn	 Gaming,	 165	 F.3d	 at	 897	 (“In	 general,	 a	 threshold	 showing	 of	

incorrectness	or	falsity,	or	disregard	for	either,	is	required	in	order	to	find	bad	

faith	in	the	communication	of	information	about	the	existence	or	pendency	of	

patent	 rights.”).	 	 “[B]ad	 faith	 is	 not	 supported	 when	 the	 information	 is	

objectively	 accurate.”	 	 See	 Dominant	 Semiconductors,	 524	 F.3d	 at	 1261	

(quotation	marks	omitted).			

       [¶25]	 	 Based	 on	 facts	 not	 in	 dispute,	 Puritan	 failed	 to	 meet	 its	 burden.		

See	Contech	Stormwater	Solutions,	Inc.	v.	Baysaver	Techs.,	Inc.,	534	F.	Supp.	2d	

616,	 632	 (D.	 Md.	 2008),	 aff’d	 310	 Fed.	 Appx.	 404	 (Fed.	 Cir.	 2009).	 	 Although	

Puritan	 challenged	 Copan’s	 belief	 that	 Puritan	 infringed	 Copan’s	 patents,	

Puritan	 failed	 to	 pinpoint	 any	 incorrect	 statement	 or	 falsity	 in	 the	 demand	

letter.		See	Mikohn	Gaming,	165	F.3d	at	897;	see	also	Dominant	Semiconductors,	

524	 F.3d	 at	 1264	 (explaining	 that	 the	 plaintiff	 “produced	 no	 evidence	 of	

objective	baselessness	at	all—in	other	words,	it	produced	no	evidence	that	the	

[patent	 holder’s]	 claims	 of	 infringement	 were	 factually	 unsound”).	 	 Even	

viewing	the	evidence	in	the	light	most	favorable	to	Puritan,	see	Diviney,	2017	

ME	 56,	 ¶	 14,	 158	 A.3d	 5,	 it	 has	 failed	 to	 present	 sufficient	 evidence13	 that	


   13		Related	to	the	objectively	baseless	prong,	Puritan	argued	that	its	expert	witness’s	deposition	

testimony	that	Copan	had	no	reasonable	basis	for	the	assertions	in	its	demand	letter	is	evidence	of	
16	

might	 allow	 a	 fact-finder	 to	 determine	 that	 Copan’s	 assertion	 of	 patent	

infringement	 was	 objectively	 baseless.	 	 See	 Dominant	 Semiconductors,	 524	

F.3d	at	1263-64.		

        2.	     Subjective	Bad	Faith		

        [¶26]		Puritan	argues	that	several	circumstances	support	its	claim	that	

Copan’s	 assertion	 was	 made	 in	 bad	 faith:	 (1)	 Copan’s	 failure	 to	 produce	 a	

report	 of	 an	 examination	 comparing	 Puritan’s	 swabs	 to	 Copan’s	 patent;	 (2)	

Copan’s	 failure	 to	 initiate	 patent	 infringement	 litigation	 against	 Puritan	 after	

sending	 its	 demand	 letter;14	 (3)	 Copan’s	 reference	 to	 expired	 German	 utility	

models	 in	 its	 demand	 letter;	 and	 (4)	 the	 timing	 of	 Copan’s	 demand	 letter,	

which	 was	 sent	 close	 in	 time	 to	 the	 French	 Gendarmerie’s	 deadline	 for	 bids.		

Although	 these	 circumstances	 “might	 be	 probative	 of	 subjective	

baselessness	.	.	 .	 they	 do	 not	 help	 to	 show	 that	 a	 jury	 reasonably	 could	 find	

that	 [Puritan]	 could	 meet	 its	 burden	 of	 proving	 by	 clear	 and	 convincing	

bad	 faith.	 	 However,	 Copan’s	 expert	 testified	 to	 the	 opposite.	 	 “The	 mere	 fact	 that	 [Puritan’s]	
position	 is	 reasonable	.	.	.	 does	 not	 equate	 to	 a	 finding	 that	 [Copan’s]	 position	 is	 objectively	
baseless.”		See	GED	Integrated	Solutions,	Inc.	v.	Durotech	Int’l,	Inc.,	No.	5:06CV1327,	2008	U.S	Dist.	
LEXIS	 35009,	 at	 *9	 (N.D.	 Ohio	 Apr.	 29,	 2008)	 (considering	 a	 motion	 for	 summary	 judgment	 on	 a	
state	law	claim	relating	to	the	assertion	of	patent	infringement).		Furthermore,	although	“these	two	
experts	disagree	about	the	existence	of	infringement,	such	disagreement	does	not	create	an	issue	of	
fact.”		See	id.			
   14		During	the	pendency	of	this	appeal,	Copan	filed	a	lawsuit	against	Puritan	in	the	United	States	

District	 Court	 for	 the	 District	 of	 Maine,	 alleging	 patent	 infringement	 and	 false	 advertising	 in	
violation	of	federal	and	state	laws.		See	Copan	Italia,	S.p.A.	v.	Puritan	Medical	Products	Company	LLC,	
No.	1-18-cv-00218-JDL	(D.	Me.	filed	June	1,	2018).		That	pending	lawsuit	does	not	affect	this	case.			
                                                                                                          17	

evidence	 that	 [Copan’s]	 infringement	 allegations	 were	 objectively	 baseless.”		

See	 Dominant	 Semiconductors,	 524	 F.3d	 at	 1263-64.	 	 “Subjective	

considerations	of	bad	faith	are	irrelevant	if	the	assertions	are	not	objectively	

baseless.”	 	 GP	 Indus.,	 500	 F.3d	 at	 1375.	 	 Because	 we	 conclude	 that	 Copan’s	

assertion	of	patent	infringement	was	not	objectively	baseless,	we	do	not	reach	

the	second	part	of	the	analysis,	and	therefore	Puritan’s	state	law	claim	fails	to	

avoid	federal	preemption.	

        [¶27]	 	 Our	 determination	 that	 federal	 patent	 law	 preempts	 Puritan’s	

claim	 in	 this	 case	 does	 not	 mean	 that	 Maine’s	 statute	 is	 preempted	 as	 a	

whole.15	 	 See	 Hunter	 Douglas,	 153	 F.3d	 at	 1335	 (citing	 Cal.	 Coastal	 Comm’n,	

480	U.S.	at	580-81).		A	claim	alleged	pursuant	to	14	M.R.S.	§	8701	can	survive	

federal	 preemption	 if	 the	 plaintiff	 presents	 sufficient	 evidence	 to	 allow	 a	


   15		Contrary	to	the	concurrence’s	assertion,	we	are	not	implying	that	14	M.R.S.	§	8701	(2017)	is	

unconstitutional.		See	Concurring	Opinion	¶	37.		Rather,	we	state	only	that	Puritan’s	specific	claim	is	
preempted.		See	Boydstun	Equip.	Mfg.,	LLC	v.	Cottrell,	Inc.,	No.	3:16-cv-790-SI,	2017	U.S.	Dist.	LEXIS	
175659,	at	*50	(D.	Or.	Oct.	24,	2017)	(explaining	that	“[the	plaintiff’s]	claim	under	[Oregon’s	‘Patent	
infringement	 claim	 made	 in	 bad	 faith’	 statute]	 is	 preempted	 by	 federal	 law”	 after	 conducting	 an	
analysis	pursuant	to	Globetrotter,	362	F.3d	at	1374-77).		Furthermore,	the	doctrine	of	constitutional	
avoidance	 is	 inapplicable	 here.	 	 See	 Concurring	 Opinion	 ¶	 36.	 	 Courts	are	 divided	 on	whether	 the	
doctrine	applies	to	questions	of	federal	preemption,	but	even	the	courts	that	hold	that	it	does	apply	
explain	that	the	preemption	issue	should	be	avoided	if	there	are	“alternative	independent	state	law	
grounds	for	disposing	of	a	case.”		See	Columbia	Venture,	LLC	v.	Dewberry	&	Davis,	LLC,	604	F.3d	824,	
828-29	 (4th	 Cir.	 2010)	 (ultimately	 reaching	the	 preemption	 issue	 after	 determining	 that	the	 only	
independent	state	law	ground	that	could	dispose	of	the	entire	case—the	violation	of	the	statute	of	
limitations—failed);	but	see	Colo.	Dep’t	of	Pub.	Health	&	Env’t	v.	United	States,	693	F.3d	1214,	1222	
(10th	Cir.	2012);	N.J.	Payphone	Ass’n	v.	Town	of	West	New	York,	299	F.3d	235,	239	n.2	(3d	Cir.	2002).		
Because	 there	 are	 no	 alternative,	 independent	 grounds	 to	 dispose	 of	 this	 case,	 we	 cannot	 avoid	
addressing	the	preemption	issue.				
18	

fact-finder	 to	 determine	 that	 the	 defendant’s	 assertions	 of	 patent	

infringement	were	both	objectively	baseless	and	made	in	subjective	bad	faith.		

See	Globetrotter,	362	F.3d	at	1374;	see	also	800	Adept,	539	F.3d	at	1370.	

                                            III.		CONCLUSION	

        [¶28]		The	trial	court	did	not	have	the	benefit	of	the	precedent	we	now	

establish	 and	 granted	 summary	 judgment	 in	 favor	 of	 Copan	 on	 the	 merits	 of	

Puritan’s	state	law	claim	after	concluding	that	it	was	not	preempted	by	federal	

patent	law.		In	its	preemption	analysis,	the	court	conflated	the	test	for	federal	

preemption	 with	 the	 test	 for	 federal	 jurisdiction.16	 	 Because	 we	 hold	 that	

federal	patent	law	preempts	Puritan’s	state	law	claim,	we	affirm	the	grant	of	

summary	 judgment	 in	 favor	 of	 Copan	 on	 that	 basis.	 	 See	 Bakal	 v.	 Weare,	 583	

A.2d	 1028,	 1030	 (Me.	 1990)	 (explaining	 that	 “even	 though	 the	 basis	 for	 the	

court’s	entry	of	summary	judgment	for	[defendant]	was	erroneous,	we	affirm	




   16	 	 The	 trial	 court’s	 analysis	 focused	 on	 whether	 a	 state	 court	 had	 jurisdiction	 to	 consider	 the	

state	law	claim	of	bad	faith	assertion	of	patent	infringement.		The	trial	court	stated	that	“[f]ederal	
district	 courts	 have	 exclusive	 original	 jurisdiction	 over	 ‘all	 civil	 actions	 arising	 under	 the	
Constitution,	 laws,	 or	 treaties	 of	 the	 United	 States.’”	 	 (Quoting	 28	 U.S.C.S.	 §	 1331	 (LEXIS	 through	
Pub.	L.	No.	115-193)).		It	explained	that	although	patent	law	has	typically	been	a	creature	of	federal	
law,	“[n]o	element	of	the	claim	or	element	delineated	by	statute	requires	the	[c]ourt	to	determine	a	
question	of	federal	patent	law.”		It	therefore	concluded	that	the	claim	was	not	preempted	and	that	it	
had	 jurisdiction	 to	 consider	 the	 claim.	 	 However,	 the	 court’s	 analysis	 neglected	 to	 consider	 the	
proper	test	for	preemption	of	this	type	of	claim:	whether	the	state	law	claim	in	this	case	conflicts	
with	 federal	 patent	 law’s	 protection	 of	 good	 faith	 assertions	 of	 patent	 infringement.	 	 See	
Globetrotter,	362	F.3d	at	1374;	see	also	Boydstun	Equip.	Mfg.,	2017	U.S.	Dist.	LEXIS	175659,	at	*49.	
                                                                                      19	

the	judgment	because	there	exists	another	reason	why	[defendant]	is	entitled	

to	judgment	as	a	matter	of	law.”).	

      The	entry	is:	
      	
                  Judgment	affirmed.		
                  	
                         	      	      	           	      		

ALEXANDER,	J.,	concurring.	
	
	   [¶29]	 	 Title	 14	 M.R.S.	 §	 8701	 (2017)	 provides	 critical	 protection	 for	

Maine	 businesses	 and	 jobs	 from	 abusive,	 bad	 faith	 claims	 of	 patent	

infringement.	 	 The	 protection	 offered	 by	 section	 8701	 is	 particularly	

important	to	discourage	bad	faith	claims	related	to	the	manufacture	of	health	

care	products	and	devices.		In	this	field,	patent	litigation	is	used	to	attempt	to	

create	 monopolies	 on	 particular	 products	 that	 some	 exploit	 to	 charge	

exorbitant	 prices	 and	 reap	 huge	 profits	 from	 the	 sale	 of	 drugs	 and	 other	

products	 that	 cost	 little	 to	 manufacture—escalating	 the	 already	 high	 cost	 of	

health	care	to	the	detriment	of	the	public	health	and	welfare.			

	     [¶30]	 	 The	 dispute	 here	 involves	 absorbent	 swabs,	 absorbent	 material	

on	the	head	of	a	thin	stick,	commonly	available	and	applied	to	a	variety	of	uses	

in	 forensic	 medicine,	 personal	 care,	 and	 health	 care.	 	 From	 the	 depictions	 in	

the	record,	the	products	at	issue	are,	in	reality,	glorified	“Q-tips.”		The	parties	
20	

are	disputing	whether	the	manner	of	attaching	the	absorbent	material	to	the	

head	of	the	stick	by	inserting	strands	of	the	material	into	the	head	of	the	stick	

is	subject	to	a	patent	giving	Copan	Italia	a	monopoly	on	swabs	with	absorbent	

material	attached	in	that	manner.			

       [¶31]	 	 The	 Court’s	 opinion	 aptly	 summarizes	 the	 purposes	 and	

importance	of	Maine’s	product	protection	law.	

       	      In	 2014,	 Maine’s	 Legislature	 enacted	 14	 M.R.S.	
       §§	8701-8702,	 entitled	 Actions	 for	 Bad	 Faith	 Assertion	 of	 Patent	
       Infringement.	 	 See	 P.L.	 2013,	 ch.	 543	 (effective	 Aug.	 1,	 2014).	 	 In	
       doing	 so,	 Maine	 joined	 a	 growing	 number	 of	 states	 that	 have	
       passed	 similar	 laws	 in	 an	 attempt	 to	 address	 the	 problems	
       presented	 by	 patent	 trolls17	 and	 bad	 faith	 assertions	 of	 patent	
       infringement.		See	An	Act	Regarding	Bad	Faith	Assertions	of	Patent	
       Infringement:	Hearing	on	L.D.	1660	Before	the	J.	Standing	Comm.	on	
       the	Judiciary,	126th	Legis.	(2014)	(testimony	of	John	D.	Delahanty,	
       Esq.);	 Paul	 R.	 Gugliuzza,	 Patent	 Trolls	 and	 Preemption,	 101	 Va.	 L.	
       Rev.	1579,	1593	(2015).	

Court’s	Opinion	¶	19.	

       [¶32]		Recognizing	the	importance	of	the	protections	provided	to	Maine	

businesses	 and	 jobs	 by	 this	 law,	 the	 trial	 court	 carefully	 and	 critically	

reviewed	 the	 material	 facts	 presented	 to	 it	 by	 the	 parties.	 	 After	 review,	 the	

court	 concluded	 that	 Puritan	 Medical	 Products	 Company	 LLC	 had	 failed	 to	

establish	any	dispute	as	to	material	fact	that	Copan	Italia’s	assertions	of	patent	


  17		Patent	trolls	are	described	in	the	Court’s	footnote	11.		
                                                                                         21	

infringement	were	made	in	bad	faith.		Because	Puritan	had	not	established	the	

element	of	bad	faith	required	for	a	section	8701	claim,	the	trial	court	granted	

Copan’s	 motion	 for	 summary	 judgment.	 	 Because	 the	 trial	 court	 properly	

evaluated	the	 materials	before	it	and	granted	summary	judgment,	we	should	

affirm	that	grant	of	summary	judgment.	

       [¶33]		Instead	of	affirming	the	trial	court’s	grant	of	summary	judgment,	

the	Court	elects	to	reach	out,	invoke	the	federal	law	of	preemption,	and	hold	

that,	considering	the	materials	before	it,	the	trial	court	erred	in	even	reaching	

the	merits	of	the	section	8701	bad	faith	claim.		The	Court	holds,	in	effect,	that	

the	 section	 8701	 claim	 in	 this	 case,	 and,	 by	 implication,	 most	 section	 8701	

claims,	are	preempted	by	federal	patent	law.	

       [¶34]	 	 The	 federal	 law	 of	 preemption	 presents	 a	 question	 of	 the	

constitutionality	of	application	of	state	law,	here	section	8701,	as	preempted	

by	the	Supremacy	Clause,	art.	VI,	cl.	2,	of	the	United	States	Constitution.		The	

Court	 states:	 “The	 Supremacy	 Clause	 of	 the	 United	 States	 Constitution	 states	

that	 the	 ‘Constitution,	 and	 the	 Laws	 of	 the	 United	 States	 .	 .	 .	 shall	 be	 the	

supreme	 Law	 of	 the	 Land.’	 	 U.S.	 Const.	 art.	 VI,	 cl.	 2.	 	 Federal	 preemption	 of	

state	 law	 takes	 three	 forms:	 express	 preemption,	 field	 preemption,	 and	
22	

conflict	preemption.”		Court’s	Opinion	¶	13	(citing	English	v.	Gen.	Elec.	Co.,	496	

U.S.	72,	78-79	(1990)).			

      [¶35]		The	Court’s	approach	puts	the	cart	before	the	horse,	reaching	out	

to	address	preemption	before	addressing	the	merits	of	the	trial	court’s	ruling	

in	 favor	 of	 Copan.	 	 Had	 the	 trial	 court	 found	 that	 Puritan	 had	 established	 a	

dispute	as	to	material	fact	regarding	the	bad	faith	issue	under	the	Maine	law,	

the	trial	court	would	then	have	had	to	address	the	issue	of	federal	preemption	

before	 it	 proceeded	 to	 address	 the	 merits	 of	 the	 bad	 faith	 claim.	 	 Some	

preemption	opinions	cited	by	the	Court	at	paragraphs	14-15	appear	to	require	

just	such	an	analysis	of	the	validity	of	the	bad	faith	claim	before	deciding	the	

preemption	 issue.	 	 See	 Ultra-Precision	 Mfg.,	 Ltd.	 v.	 Ford	 Motor	 Co.,	

411	F.3d	1369,	 1377	 (Fed.	Cir.	 2005);	 Globetrotter	 Software,	 Inc.	 v.	 Elan	

Comput.	Grp.,	362	F.3d	1367,	1374	(Fed.	Cir.	2004).			

      [¶36]		Federal	precedent	establishes	that	the	constitutional	preemption	

issue	 should	 be	 reached	 only	 when	 there	 is	 no	 alternative,	 independent	

grounds	 to	 dispose	 of	 this	 case.	 	 See	 Columbia	 Venture,	 LLC	 v.	 Dewberry	 &	

Davis,	 LLC,	 604	 F.3d	 824,	 828	 (4th	 Cir.	 2010)	 (noting	 that	 a	 court	 should	

decide	a	case	on	an	independent	state-law	basis	if	that	basis	allows	the	court	

to	 avoid	 deciding	 a	 constitutional	 question	 such	 as	 preemption).	 	 But	 see	
                                                                                      23	

Colorado	 Dep’t	 of	 Pub.	 Health	 &	 Environment	 v.	 United	 States,	 693	 F.3d	 1214,	

1222	(10th	Cir.	2012)	(citing	Douglas	v.	Seacoast	Prods.,	Inc.,	431	U.S.	265,	272	

(1977)	 (stating	 that	 federal	 preemption	 of	 state	 law	 is	 grounded	 in	 the	

Supremacy	 Clause	 of	 the	 United	 States	 Constitution,	 but	 the	 Supreme	 Court	

has	treated	preemption	“as	‘statutory’	for	purposes	of	[the	Court’s]	practice	of	

deciding	 statutory	 claims	 first	 to	 avoid	 unnecessary	 constitutional	

adjudications.”)).	 	 The	 trial	 court’s	 ruling	 in	 favor	 of	 Copan	 provides	 the	

independent	grounds	to	avoid	the	preemption	issue.		

      [¶37]		Having	granted	Copan’s	motion	for	summary	judgment,	the	trial	

court	was	not	required	to	consider	whether	the	Supremacy	Clause	applied	to	

preempt	 the	 section	 8701	 action.	 	 We	 should	 not	 be	 suggesting	 otherwise.		

Reaching	the	preemption	issue	before	analyzing	the	merits	of	the	trial	court’s	

judgment	 implies	 that	 the	 important	 business	 protection	 adopted	 in	 the	 bad	

faith	 assertion	 of	 patent	 infringement	 law,	 section	 8701,	 is	 unconstitutional	

because	 it	 is	 preempted.	 	 While	 the	 Court,	 in	 footnote	 15,	 suggests	 that	 a	

section	 8701	 claim	 may	 not	 always	 be	 preempted,	 the	 standards	 the	 Court	

sets	to	reach	the	merits	of	any	State	claim	appear	virtually	unattainable.			

      [¶38]	 	 Our	 review	 of	 a	 claim	 that	 a	 statute,	 such	 as	 section	 8701,	 is	

unconstitutional	must	begin	with	a	presumption	that	the	law	is	constitutional.		
24	

Godbout	v.	WLB	Holding,	Inc.,	2010	ME	 46,	¶	5,	997	 A.2d	92.		Respecting	this	

deferential	 consideration	 of	 statutes	 that	 the	 Legislature	 has	 deemed	 it	

important	 to	 enact,	 we	 have	 said	 that	 when	 an	 appeal	 presents	 a	

constitutional	 challenge	 to	 a	 statute—and	 a	 Supremacy	 Clause	 preemption	

claim	 is	 a	 constitutional	 challenge—we	 will	 avoid	 addressing	 the	

constitutional	issue	if	the	appeal	can	be	decided	by	addressing	issues	that	do	

not	 implicate	 a	 constitutional	 violation.	 	 Bates	 v.	 Dep’t	 of	 Behavioral	 &	

Developmental	Servs.,	2004	ME	154,	¶	85,	863	A.2d	890;	Hannum	v.	Board	 of	

Environmental	Protection,	2003	ME	123,	¶	18,	832	A.2d	765.	

      [¶39]	 	 Because	 the	 trial	 court	 rejected	 Puritan’s	 claim	 by	 its	 grant	 of	

Copan’s	 motion	 for	 summary	 judgment,	 we	 should	 avoid	 addressing	 the	

constitutional	preemption	issue	by	affirming	that	grant	of	summary	judgment.		

We	 should	 not	 issue	 an	 opinion	 undermining	 the	 validity	 of	 the	 important	

protection	for	Maine	businesses	and	jobs	provided	by	section	8701.	

	     [¶40]		I	would	affirm	the	trial	court’s	decision	granting	Copan’s	motion	

for	summary	judgment	without	addressing	the	preemption	issue.	

	     	     	      	      	      	

	
	
	
	
                                                                               25	

Thomas E. Getchell, Esq. (orally), Troubh Heisler, Portland, for appellant Puritan
Medical Products Company LLC

David P. Silk, Esq., Benjamin M. Leoni, Esq., and Rebecca G. Klotzle, Esq.
(orally), Curtis Thaxter LLC, Portland, for appellee Copan Italia S.p.A.


Business and Consumer Docket docket number CV-2015-64
FOR CLERK REFERENCE ONLY	
	
