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| May 2011 |
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| Current State of Patent False Marking Litigation |
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R. Mark McCareins
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Peter J. Slawniak
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Posted from Intellectual Property & Technology Law Journal, May 2011, with permission from Aspen Publishers.
From intellectual property law journals to the Wall Street Journal, everyone seems to know that patent false marking suits have become an anathema to US businesses over the last year. The Federal Circuit gave new life to this once toothless statute in December 2009 when it held that false marking penalties are to be calculated on a per article basis of up to $500 per article. This past summer, the Federal Circuit threw fuel on the fire by holding that “any person,” and not just competitors, can bring an action under this qui tam law. With the evisceration of a standing requirement, a cottage industry of false marking police has emerged, as predicted and feared by the Federal Circuit itself. |
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