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Patent Law

: Patently Obvious

Patently-O Bits and Bytes No. 41 (False Marking, Etc.)

By Dennis Crouch, Esq.

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Tracking Appeals: There is an interesting new patent litigation blog: Patent Appeal Tracker run by Kyle Fleming and Josh Ryland. They are providing a review of various pre-decision appeals.
False Marking: Matthew Pequignot is again a plaintiff in a false marking action under 25 USC 292. He has now teamed with two plaintiffs firms and filed suit in the Eastern District of Texas against Gillette and its parent company P&G. The complaint specifies 683 counts of false marking and requests the maximum $500 per “offense.” The falsity of the marking appears to be generally summarized as either (1) marking products with expired patent numbers and (2) marking products with patents whose scope do not cover the products. On the second point, some of the counts allege that the defendants marked products with patents covering a method of manufacture when the product was not manufactured according to the patent. [LINK]
False Marking Comment: There are three primary reasons to mark products with the associated patent number. (1) Legally, marking provides evidence of constructive knowledge that can increase a patentee’s damages. (2) Apart from the damage issue, the patent can also serve as at least a low-level deterrent to chill would be competitors. It will at least cost several thousand dollars to hire a patent attorney to figure out if the patents are expired. (3) Finally, the patent provides additional market credibility to customers (and perhaps investors). Continued listing of an expired patent would continue to benefit the manufacturer in the last two points — and consequently help the manufacturer maintain its market position. The key point of contention will be whether the listings were made “for the purpose of deceiving the public” as required by the statute.
Moving Forward on False Marking: If this type of litigation continues to grow, in house counsel should consider creating a system for ensuring that expired and invalid patents are no longer marked on company products. A system — even if a bit leaky — will likely serve as a good defense against false marking charges because they provide evidence of a lack of intent to deceive the public.
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