“False marking” has become a greater concern than ever before as patentees are faced with the possibility of large fines, as district court dockets are overwhelmed with an unprecedented number of newly filed false marking suits, and as the U.S. Court of Appeals for the Federal Circuit has recently confirmed, in an Aug. 21, 2010, decision, that individuals have standing to sue under the “false marking statute.” We address below the current state of “false marking” law, recent cases, and offensive and defensive tactics being employed.
Starting with the “false marking” statute, 35 U.S.C. §292, reads in pertinent part:
Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented for the purpose of deceiving the public; …shall be fined not more than $500 for every such offense.1
