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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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False Marking - Over 500 Suits Filed in 2010; New Bill Proposed to "Fend Off" Such Suits

As we expected in an article published early this year, "the year 2010 will see the continued renaissance of the newly created ad hoc 'patent marking police.'"  The total number of false marking suits filed this year has reached the 500 mark.  Over half of these 500+ suits were filed in just two courts (E.D. Texas and N.D. Illinois), while over half the suits were filed by just eight plaintiffs, as can be seen from the statistics below:

Top Ten Most Popular Courts (number of cases filed)
1. E.D. Texas (201)
2. N.D. Illinois (68)
3. N.D. Ohio (42)
4. N.D. Texas (22)
5. S.D. Ill. (17)
6. N.D. California (14)
7. E.D. Pennsylvania (12)
8. S.D. New York (11)
9. S.D. California (11)
10. W.D. Pennsylvania (9)

Top Ten Active Plaintiffs (number of cases filed)
1. Patent Group, LLC (85)
2. Promote Innovation, LLC (45)
3. Simonian (40)
4. Unique Production Solutions, Limited (30)
5. Tex Pat, LLC (15)
6. Texas Data Co., LLC (15)
7. Main Hastings, LLC (13)
8. Patent Compliance Group, Inc. (12)
9. Patect, LLC (10)
10. North Texas Patent Group, Inc. (9)

This milestone comes on the heels of new proposed legislation, H.R. 6352, which would amend the false marking statute to allow for a single $500 penalty not tied to the number of articles falsely marked, as well as requiring plaintiffs to have suffered a "competitive injury" to have standing to bring such actions.  In a press release, Congressman Bob Latta, who introduced this proposed legislation, stated it "is now needed to help companies fend off frivolous lawsuits and strengthen current law."

This is in addition to the original bill proposed in the House earlier this year by Congressman Darrell Issa, H.R. 4954, that would also require a competitive injury for false marking qui tam plaintiffs to have standing.

Gray on Claims, in conjunction with Docket Navigator®, is providing a false marking chart that is updated daily with new false marking cases as well as status updates on pending cases.  A downloadable PDF chart is available on this page as well including information on the specific patents and products at issue in each litigation.  Other writings on false marking can be found here.