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Current Topics in False Marking


Devoted readers will note that I had a number of posts on this blog in late February and early March on the topic of false marking, compiling cases and noting some of the issues arising.  See, for example, here, here, and here.

For the most part, and for the near future, I will probably stop writing such posts.  I still think the topic is extremely interesting, and have been following it closely, but there is no use in duplicating the excellent efforts Justin Gray and Docket Navigator are putting forth on the subject at Gray on Claims.

For example, today Justin and the Navigator have interesting charts showing the types of patent issues that lead to false marking cases, both before and after the Federal Circuit’s decision in Forest Group, Inc. v. Bon Tool Co. [PDF].  Justin and the Navigator also provide a comprehensive table that is continually updated with a listing of false marking cases.

I think the chart that is on Justin’s post today is interesting. It shows that the false marking cases filed before the Forest Group decision were split roughly equally between those based on products marked with unenforceable patents (e.g., expired), and those based on products not within the scope of the marked patent.  Now, however, the false marking cases are overwhelmingly based on products marked with expired patents. 

My gut feeling about this is that, post-Forest Group, a motivated group of individuals is looking for false marking cases.  As such, for this group it is far easier (and quicker) to search a patent number marked on a product and find out if it’s expired than it is to analyze a patent to determine whether its claims cover the product at issue (or to determine whether an ambiguously-marked product is covered by the claims of any patent).


McDonnell Boehnen Hulbert & Berghoff LLP is also getting into the false marking game.  Their site, False Patent Marking Resources (http://www.falsemarking.net/) looks, like Gray on Claims, to be a good source of contemporary information on false marking cases.  The MBHB site helpfully includes listings of cases by court, party name, etc., and includes links to decisions, briefs, and so on.


On April 6, the Federal Circuit will hear oral argument in the appeal of the false marking case Pequignot v. Solo Cup.  In Pequignot, the lower court dismissed the false marking case against Solo Cup, finding no intent to deceive by Solo, and holding that a false marking “offense” is a “decision by a defendant to falsely mark.” That latter holding is in conflict with Forest Group.

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