LexisNexis® Legal Newsroom
False Patent Marking Liability Avoided for Lack of Intent to Deceive

LEGAL ALERT June 17, 2010 Last December, we reported the decision by the United States Court of Appeals for the Federal Circuit in The Forest Group, Inc. v. Bon Tool Co. , 590 F.3d 1295, (Fed. Cir. Dec. 28, 2009) , which interpreted the false patent marking statute, 35 U.S.C. § 292 , to...

Solo Cup Puts The Lid On False Patent-Marking Case

The Federal Circuit now holds that marking a patent number on a product, while knowing the patent does not cover the product, is a violation of the false marking statute, unless the accused party can prove that it had a good faith belief that its action was appropriate. This fact-specific defense...

Oral Arguments in Stauffer v. Brooks Brothers, Inc: FREE DOWNLOAD - Complaint/Opinion, Stauffer v. Brooks Brothers, et al., 08civ10369 (SDNY)

Last week, the U.S. Court of Appeals for the Federal Circuit heard oral arguments in the case of Stauffer v. Brooks Brothers, Inc. , Nos. 09-1428 et al. The court must decide whether appellant Stauffer has standing to sue the apparel company for labeling adjustable bowties with expired design patents...

Federal Circuit Addresses Standing in False Patent Marking Case

Stauffer v. Brooks Bros., No. 2009-1428 (Fed. Cir. Aug. 31, 2010) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ] Just 28 days after oral argument, the Federal Circuit issued a concise opinion holding that the district court erred...

Any Person Can Sue for False Patent Marking

By Malvern U. Griffin III , William F. Long , Joshua D. Curry , and Rhett S. White The false patent marking statute, 35 U.S.C. § 292 , permits any person to bring a qui tam suit on behalf of the United States against a patent holder and to share in the recovery of any penalties assessed...

Brinks Hofer Gilson & Lione: Federal Circuit Holds that the Particularity Requirement of Rule 9(b) Applies to False Marking Cases

On March 15, 2011, the United States Court of Appeals for the Federal Circuit, on petition for writ of mandamus, issued its decision in In re BP Lubricants USA Inc. , No. M960 (Fed. Cir. Mar. 15, 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE...

Fulbright & Jaworski L.L.P: Federal Circuit Holds That False Marking Claims Must Be Pled With Particularity

By Sheila Kadura and Mark Thomas Garrett The false marking statute, 35 U.S.C. § 292 , prohibits falsely marking an "unpatented" article as patented, falsely marking an article as covered by a pending patent when no application has been filed, or using such false markings...

Federal Circuit Holds that Websites Can Qualify as "Unpatented Articles" within False Patent Marking Statue’s Scope

For purposes of the false marking statue, 35 USCS § 292 , websites can qualify as "unpatented articles," according to a recent Federal Circuit opinion. Peter M. Shipley developed software known as "Dynamic Firewall," which was destroyed in 1999. Despite the software's...

Ring Pops: A Fun Way to Teach Your Kids about False Patent Marking

Next time you're in the supermarket checkout line, find the candy display and buy your child a Ring Pop. You'll be giving yourself an opportunity to explain the concept of false patent marking. Think how excited your five-year-old will be to finally learn about 35 USCS § 292 . Just imagine...

Cadwalader, Wickersham & Taft LLP: Rule 9(b) Applies To The False Marking Statute

By Karen J. Axt Ph.D. Resolving an issue that has become increasingly important since the Federal Circuit set-off an avalanche of suits under 35 U.S.C. § 292 for false patent marking by ruling in December 2009 that the statutory penalty of up to "$500 for every such offense"...

Arnold & Porter's Webcast: Key Recent U.S. Supreme Court and Federal Circuit Court Decisions That Impact Patent Law

Monty Agarwal will discuss recent developments in false patent marking cases, including heightened pleading requirements, challenges to the constitutionality of the law, and pending Congressional reform. Robert Taylor will address the recent Supreme Court ruling in i4i v. Microsoft regarding the...

McNees Wallace & Nurick LLC: Changes in Patent Marking Provisions

By Shawn Leppo This article is the second in a series of mini-articles considering a section of the new patent statute and how it may affect your business. Among the earliest provisions of the recently signed Leahy-Smith Patent Reform Act to go into effect are changes related to patent marking...

Troutman Sanders LLP: Judge Turk Breathes New Life Into False Marking Claims

By Dabney Carr If you thought passage of the America Invents Act would end the flood of false patent marking claims, think again. In December, Judge Turk in the Western District of Virginia ruled that a false marking plaintiff could proceed under state consumer protection laws and that such...

Troutman Sanders LLP: Western District of Virginia Court Grants Partial Summary Judgment on False Patent Marking and Consumer Law Claims

By Dabney Carr Last week, Judge Turk in the Western District of Virginia granted a plaintiff summary judgment on several elements of his false marking claims as well as on elements of his state law claims of false advertising and consumer protection act violations but held that whether the defendant...

Brinks Hofer Gilson & Lione: Virtual Patent Marking

United States law has long held that marking a product with a patent number gives the public constructive notice of a patent. If a patented product is not marked with the patent number by the patent owner, damages for infringement will be limited to the period after the patent owner gives actual notice...