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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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Defendant Raises Constitutional Challenge to False Marking Statute Before Federal Circuit

Recently, a defendant in a false marking case pending before the Western District of Pennsylvania (FLFMC v. Wham-O) has appealed that court's finding concerning the constitutionality of the false marking statute.  On appeal to the Federal Circuit, the defendant "asserts that, as drafted, 35 U.S.C. 292(b) violates the 'Take Care' and 'Appointments' clauses of Article II of the United States Constitution as it fails to provide for the necessary supervision of the qui tam litigant who is purporting to enforce a criminal statue on behalf of the government."  At present, the appellant's blue brief is due on January 10, 2011.

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.