US Law Update: A recent Federal Circuit decision allows to sue for false marking of products and to collect up to $500 per article

01.02.2010

Section 35 U.S.C. 292 of the US Patent Law provides for a $500 fine for false marking of products – i.e., marking products not covered by a patent as having patent protection, e.g., for which the patent has expired.

In a recent decision dated 28 December 2009, the U.S. Court of Appeals for the Federal Circuit
decided, in the case of The Forest Group Inc. v. Bon Tool Company, that the fine identified in the
law of “not more than $500 for every such offense” was $500 per article marketed.
The following is the relevant quotation from the decision:

“We hold that the plain language of 35 USC 292 requires courts to impose penalties for false
marking on a per article basis. In this case the district court found that Forest falsely marked
its stilts after November 15, 2007. The District Court did not, however, determine the number of articles falsely marked by Forest after November 15, 2007 or the amount of penalty to be assessed per article. Therefore we vacate the $500 fine imposed by the District Court and remand to the District Court for
determinations consistent with this opinion.”

This decision is likely to generate a myriad of law suits by litigatory trolls similar to class
action trolls and patent assertion trolls.

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