Filing of New False Patent Marking Cases Again Picking Up Steam

After the Federal Circuit decided Pequignot v. Solo Cup on June 10th of this year, many believed that the Court's decision would curtail the number of new false marking lawsuits being filed.  This appears not to have been the case.  While May 2010 was the slowest month for new filings (with 20 new lawsuits), we have seen an increase of new false marking suits in June and July, with 35 filed in June and 46 thus far filed in July.  Since the Federal Circuit's Forest Group decision, 290 new lawsuits have been filed concerning false marking.

Approximately 30% of these 290 cases have been filed by only three plaintiffs:  Thomas Simonian (39), Promote Innovation, LLC (23), and Patent Group, LLC (23).  Over half of the 290 cases have been filed in three district courts:  Eastern District of Texas (68), Northern District of Illinois (63), and Northern District of Texas (18).

On August 3rd, the Federal Circuit will hear the Stauffer v. Brooks Brothers appeal, which raises issues of what type of injury plaintiffs must allege to have Article III standing.  Legislation has been proposed in both the Senate and House of Representative that would limit the class of false marking plaintiffs to those who have suffered a "competitive injury" due to the alleged false marking.  This proposed legislation would be retroactive and would apply to all cases pending on or after the date the legislation is enacted.

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.