Proof of objective facts and subjective intent are essential to success on a false patent marking claim (as well as on the inequitable conduct defense). Showing that ‘patented’ was in some form marked on a product should not be hard. In all ‘false’ conduct actions, the most difficult aspect is proving intent.
In a case some years past, the Judge issued fairly straightforward rulings that “intent” raised fact questions precluding summary judgment on a false patent marking claim. The court noted that the product was promoted as “patented” before an application had been filed, and that notice of the misidentification was received, also before the patent application was filed. The one promoting it may have believed it was patented. http://bit.ly/aZ8zWAhttp://bit.ly/awa5fK
Seemed plain - accepting favorably an inference of ‘good faith’ despite a mistaken belief that the product was “patented.” This did not spawn hordes of mismarking cases, and intent should remain difficult to prove.
False Marking and Patent Reform Marking Products as Patented: Many manufacturers mark their products as patented by listing the associated patent number on the product or its packaging. The marking serves as constructive notice to potential infringers -- allowing a patentee to collect damages for...
False Marking: Lobbying against the Senate Bill A battle over the false marking statute is rising. The currently pending patent reform bill (S.515) would severely weaken the cause of action. In a recent press release, the Public Patent Foundation (PubPat) has argued that the statute ?would eliminate...
False Marking: Calculating Damages Part I The Forest Group, Inc. v. Bon Tool Co. (Fed. Cir. 2009). The false marking statute provides for a fine of "not more than $500 for every ? offense." 35 U.S.C. 292. Past cases have severely limited the false-marking damage award...
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Lawsuits and Settlements
Zantac Patent GlaxoSmithKline and Cypress Pharmaceutical settle patent infringement dispute.
Soliris Patent Alexion Pharmaceuticals Inc. agrees to pay the Oklahoma Medical Research Foundation a $10 million patent infringement settlement.
DRAM Patent ProMOS Technologies and Mosel Vitelic pay MOSAID Technologies an undisclosed patent infringement settlement.