False Marking FAQ

Over the last nine months, we have seen a significant surge of false patent marking cases.  Indeed, twenty new cases were filed in the EDTX on Friday alone!  The case law developments that have been fueling this trend have been reported here as they happened, but I just put together an FAQ on the topic that provides a high level summary of the issues and risks of false marking in one place.  Consider it a false marking 101 article.  The article is available at http://www.dorsey.com/eu_ip_businessesbeware_091610/

False Marking Revisited - The New Wave of Patent Prospecting Is On

In my December 30, 2009 post, I speculated that “the holding in the Forest Group may still create an incentive for more qui tam actions being brought for false marking. After all, even a fraction of a penny applied to a billion items can still amount to millions of dollars in potential recovery. [The holding in Forest Group] may invigorate a new class of litigation prospectors… .” A short two months later, it is clear that this is indeed the case.

Based on case filings as reported by Justin Gray, on his Gray on Claims blog, ( http://www.grayonclaims.com/false-marking-case-information ), during the period from September 5, 2007 through November 13, 2009, only ten cases were filed alleging false patent marking. In the two month period since December 30, 2009, at least 69 false marking cases have been filed. These cases have been filed by twenty two (22) different plaintiffs. One plaintiff, Mr. Simonian, is the named party in 28 cases, another, Dr. Hollander, is the named plaintiff in seven cases. Most, if not all, of these cases are based on a manufacturer marking product with patents that are now expired.

Clearly, false marking is an area that will continue to be exploited by a new breed of plaintiffs during 2010. As I said just before the new year, given this “new class of litigation prospectors, the time is right to review your patent marking and clean up any marking that may no longer be applicable.”