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If at First You Don't Succeed . . . HR 243 (Re)Introduced In House to Curb False Marking Claims

By Peter Zura

Earlier this month (Jan. 7), Rep. Robert Latta (R-OH) introduced HR 243 in an attempt to stem the tide of false marking litigation in the U.S.  The legisltation is intended to revert Section 292 back to the pre-Forest Group CAFC decision and assess one $500 fine if an entity is found guilty of deceiving the public through false marking, and not allow entities to be fined for each product on the market. The legislation will also require the individual bringing the lawsuit to have suffered a competitive injury as a result of the violation.

The legislation is identical to H.R. 6352, which was perviously referred to the House Judiciary Committee in September 2010.  Under the legislation, section 292 would be amended (hat tip to the Patent Docs for posting the amended language) to state:

(a) . . . Whoever marks upon, or affixes to, or uses in advertising in connection with unpatented articles the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or

Whoever marks upon, or affixes to, or uses in advertising in connection with one or more articles the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiv­ing the public --

Shall be fined not more than $500, in the aggregate, for all offenses in connection with such articles.

(b) A person who has suffered a competitive injury as a result of a violation of this section may bring a civil action in the appropriate district court of the United States against the person violating this section for recovery of not more than $500 in damages to compensate for the injury.

According to an earlier statement by Latta, ?[b]ecause of the Forest Group decision, this legislation is now needed to help companies fend off frivolous lawsuits and strengthen current law.  During this time of economic uncertainty, companies should not have to worry about expending additional resources on lawsuits based on one court?s interpretation of current law.?
Read/download a copy of H.R. 243 here (link)

Full post as published by Two-Seventy-One Patent Blog on January 19, 2011 (boomark / email).