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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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Public Patent Foundation Asks Supreme Court to Review False Marking Provisions of AIA

Public Patent Foundation, Inc. v. McNeil-PPC, Inc.

As previously reported on this blog, in May 2013 the Federal Circuit issued an order summarily affirming a district court's decision dismissing a qui tam false marking case pursuant to the retroactive changes to the false marking provisions enacted by the America Invents Act ("AIA").

Last week, Public Patent Foundation filed a Petition for Writ of Certioari with the U.S. Supreme Court regarding the Federal Circuit's decision.  Public Patent Foundation has asked the U.S. Supreme Court "[d]oes the retroactive application of the AIA's changes to the false marking statute to this case violate Petitioner's Due Process under the Fifth Amendment?"

This petition relates to a false marking case filed by Public Patent Foundation in June 2009.  After the AIA was passed in 2011, McNeil moved for judgment on the pleadings as a result of the amendments made to the false marking statute and the retroactive application of those amendments.  The district court granted McNeil's motion in 2012 and the Federal Circuit summarily affirmed the district court's decision in May 2013.

A copy of the petition can be found here.