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False Patent Marking Cases Become the New Craze

By Joseph J. Berghammer and Timothy J. Rechtien

Since Jan. 1, 2010, over 130 cases have been filed that accuse defendants of false patent marking. This recent tidal wave of false marking litigation contrasts with the relative calm of the past in which only approximately 40 false patent marking cases total were filed from 2000'2009. What caused the underwater earthquake? The decision of the Court of Appeals for the Federal Circuit in Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (2009).

On Dec. 28, 2009, the Federal Circuit handed down its decision in Forest Group, in which the Federal Circuit held that the false marking statute “requires” a fine of up to $500 for “each article.” Id. at 1301. Under this reading of the statute, just one act of false marking can potentially lead to devastating consequences. For example, if a company runs a single shift on an assembly line that manufactures, for instance, a thousand individual products per day marked with a patent number that does not in fact cover the product, that company could conceivably be liable for a $500,000 false marking penalty for each day of production.

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