"Patent Marking Police" Out in Full Force
Wednesday, February 17, 2010 at 2:29 PM
Justin E. Gray in False Marking

As predicted by myself and Hal Wegner in our recent article, "the year 2010 will see the continued renaissance of the newly created ad hoc 'patent marking police.'"  In the roughly 50 days since the Federal Circuit released its decision in Forest Group, Inc. v. Bon Tool Co., at least 14 17 lawsuits alleging false marking have been filed against 29 33 different companies in various district courts, including:

Interestingly, two of these fourteen seventeen lawsuits have been filed against Timex Group USA, Inc., were filed within two weeks of each other, and alleged false marking related to the same three patents. Further, two of the other lawsuits were filed against S.C. Johnson & Son related to the same alleged false marking of an expired patent on Edge shaving gel.  As noted in the Gray/Wegner article, "it is certain that Forest Group signals an increased interest in filing qui tam actions for false marking … [however it] remains to be seen whether courts will readily find the necessary mens rea to find false marking [and it is unclear] what courts will do in the exercise of their discretion in terms of the size of damage awards."

Thanks go out to the Docket Navigator service (www.docketnavigator.com) for providing pending case information.  It is currently unclear whether additional false marking lawsuits have been filed as these suits are not being consistently categorized within the federal court system.

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.

(updated February 18, 2010 to add three more false marking complaints)

Article originally appeared on A Claim Construction and Patent Law Blog (http://www.grayonclaims.com/).
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