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Intellectual Property Law

: Two-Seventy-One Patent Blog

"Patent Marking" Case Against Solo Cup Dismissed in ED Va.

By Peter Zura

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Matther A. Pequignot v. Solo Cup Co., No. 1:07-cv-897 (E.D. Va., July 2, 2009, order) (L. Brinkema)

Washington DC patent attorney Matthew Pequignot filed at least two lawsuits against Solo Cup and Gillette (P&G) alleging that the defendants were engaging in "false marking" of their products.

Under 35 U.S.C. 292, marking an unpatented product as ?patented? or marking a product as ?patent pending? when no patent is pending can be punishable by ?not more than $500 for every such offense.? The false marking activities are only actionable if done ?for the purpose of deceiving the public.? As a qui tam right, a private citizen could sue, and if successful, split half of the damages with the government.

Pequignot alleged that Solo Cup marks its paper products with patents that had expired more than ten years ago. Previously, the district court denied Solo's motion to dismiss at an earlier stage in the litigation. More recently, Solo Cup moved for Summary Judgment arguing, in part, that Solo could not have acted with "the purpose of deceiving the public."

The judge agreed with Solo and dismissed the case:

For the reasons stated in open court, to be fully explained in a memorandum opinion, defendant's Motion for Summary Judgment is GRANTED, plaintiff's Motion for Partial Summary Judgment is DENIED, and it is hereby ORDERED that the jury trial scheduled to begin on July 27, 2009 be and is cancelled.
Download a copy of the order here (link)

See AP: "Judge closes door on legal quirk in patent law" (link)

Full post as published by Two-Seventy-One Patent Blog on July 08, 2009 (boomark / email).

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