False Marking Suit

[Mass_Shyster]

What is the name of your state (only U.S. law)? IL

A manufacturer is being sued for false marking under 35 USC 292. The complaint alleges numerous counts of expired patent numbers being improperly listed on the company website, subjecting the company to a $500 fine for each violation.

35 USC 292(b) states that the suit can be brought by any person.

It appears that a decision in December determined that the $500 fine applies to each item shipped, and not each patent number incorrectly displayed. In this case, the numbers involve millions of $5 widgets shipped, making the fine in the billion dollar range. Another similar case involving Solo Cups found no intent to deceive the public, but their potential fine was $5.4 trillion (almost a billion plastic cups at $500 each).

From what I have found, since the December ruling, a cottage industry has sprung up hunting for victims. Search the internet for a patent number, pull the patent, and if it's expired, sue the offender. This can all be done without leaving the comfort of mom's basement.

My question is: Is anyone familiar with these suits, and have the courts been awarding 'damages' to the plaintiffs?

 

[divgradcurl]

What is the name of your state (only U.S. law)? IL

A manufacturer is being sued for false marking under 35 USC 292. The complaint alleges numerous counts of expired patent numbers being improperly listed on the company website, subjecting the company to a $500 fine for each violation.

35 USC 292(b) states that the suit can be brought by any person.

Yep. It's a qui tam suit, which means a private party steps in for the government.

It appears that a decision in December determined that the $500 fine applies to each item shipped, and not each patent number incorrectly displayed. In this case, the numbers involve millions of $5 widgets shipped, making the fine in the billion dollar range. Another similar case involving Solo Cups found no intent to deceive the public, but their potential fine was $5.4 trillion (almost a billion plastic cups at $500 each).

That is correct, the $500 per item is the correct accounting. You have to split it with the government 50-50 if you win.

The Solo Cups litigation was hugely important, because it reiterated the importance of proving up "intent to deceive." That can be pretty hard to show in a lot of cases.

From what I have found, since the December ruling, a cottage industry has sprung up hunting for victims. Search the internet for a patent number, pull the patent, and if it's expired, sue the offender. This can all be done without leaving the comfort of mom's basement.

For now. The congress is working to amend 35 USC 292 to require a "competitive injury" for standing to bring suit.

My question is: Is anyone familiar with these suits, and have the courts been awarding 'damages' to the plaintiffs?

I am not aware of any false marking cases that have awarded damages to a plaintiff at this point -- and would be surprised if there were any. There hasn't been enough time since the Forest Group case for any of these newly-filed suits to get through the court system and get to a judgment. There may have been settlements along the way, but those are typically confidential. It will be another year or more before any of the false marking cases go to trial -- assuming the congress doesn't fix the law in the meantime.

 

[Mass_Shyster]

Y

I am not aware of any false marking cases that have awarded damages to a plaintiff at this point -- and would be surprised if there were any. There hasn't been enough time since the Forest Group case for any of these newly-filed suits to get through the court system and get to a judgment. There may have been settlements along the way, but those are typically confidential. It will be another year or more before any of the false marking cases go to trial -- assuming the congress doesn't fix the law in the meantime.

Thanks for the info. The pending legislation, if enacted, should make the whole thing go away. It will be interesting to watch in the meantime. I found a website listing a slew of similar cases, but the list seems to be incomplete. The case I'm familiar with is not listed, although the same plaintiff is listed on one of them. I found her on three in pacer.