False marking claims are driving the growth of intellectual property litigation in the United States. There were about 175 new false marking cases filed in the third quarter of 2010, compared to no such cases having been filed in the third quarter of last year. The vast majority of those cases involve products being sold that bear an expired patent number.
Prior to 2010, allegations of false patent marking were most often made in suits between competitors, often as a counterclaim in a patent infringement suit. These suits are not being brought by competitors, but instead are being brought as qui tam suits by people hoping to profit from half of a $500-per-article bounty that is the maximum that may be obtained in a successful false marking action. The dramatic increase in these types of cases can be attributed to some recent decisions of the U.S. Court of Appeal for the Federal Circuit.
