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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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grayonclaims@gmail.com

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Friday
Jan082010

The New Patent Marking Police: Answering Clontech and Forest Group

Today, Hal Wegner and I have released a new paper concerning the open questions regarding Section 292 false marking claims post-Forest Group.  We discuss the Forest Group case itself, the history of qui tam actions going back to the middle ages, pending appeals and district court cases, and open questions in light of the Forest Group decision.  Open questions include how to deal with marking products with multiple patent numbers, advertising as false marking, false marking for an unpatented but "patent pending" invention, and the scope of trial court discretion for the appropriate false marking penalty.  Interestingly, in the pending appeal concerning alleged false marking of 21 billion Solo Cup lids, the penalty for such marking may range from $21 million to over $10 trillion dollars under the Federal Circuit's formula.

The paper can be found here.

Gray on Claims has recently added a new feature to track these newly filed false marking cases, as well as those filed prior to the Forest Group decision.  Up-to-date false marking case information can be found here.