Legal News

King Tuna Case Scores One for the False Marking Plaintiffs

By Dionne Searcey

It seemed for a while things were looking good for corporate defendants in the false patent marking suit saga.

For starters, government data indicated settlements were meager and not in the billion-dollar range that many corporate counsel had feared. Then a federal judge ruled that the statute violated the ‘Take Care” clause.

Leave it to King Tuna to deliver a setback to defense attorneys.

A federal judge in the Central District of California has fined the company $1.8 million for erroneously marking its products with U.S. Patent No. 5,484,619.

The issue at hand is a bit different than the false marking cases we've written about here and here.

Companies in many of those cases argue simple laziness or inattention to detail in massive product runs that wind up with a zillion paper cups or mascara tubes labeled with patents that are expired.

In the tuna suit, filed by King Tuna competitor Anova Food, Inc., Judge Otis D. Wright II found that King Tuna "knew it was not processing its filtered wood smoke treated tuna according to" a particular U.S. patent, yet it marketed the tuna as such anyway.

"The false marking and advertising could not have been a mere innocent oversight," he determined.

King Tuna, it seems, had been bragging in marketing materials that it used the processes to preserve its fish, involving filtered wood smoke among other things, that were outlined under the patent.

"King Tuna was aware that these advertisements were false in at least one way: King Tuna never pre-cooled the FWS (filtered wood smoke) down to 0 to 5 Celsius before applying it to the tuna to be treated with FWS, as required by the ’619 patent," the judge wrote.

Here's how he determined the fine, per the Federal Circuit's ruling back in December 2009 that companies could be held liable for up to $500 for every single item falsely marked.

"The Court designates one pound per article as the metric in determining the penalty and assesses a penalty of $1.00 per article. King Tuna sold 1,845,522 pounds of FWS tuna during the relevant period. Hence, the total penalty is $1,845,522.00," the judge wrote.

Full post as published by Law Blog - WSJ.com on March 04, 2011 (boomark / email).