False Patent Marking: The Next Frontier for IP Litigation


In February 2010, over 30 lawsuits were filed against companies in myriad industries—including computer, pharmaceuticals, consumer products, auto parts, and video games—alleging false patent marking under 35 U.S.C. section 292. Even before this recent surge, false marking lawsuits had been increasing over the last few years, as plaintiffs’ lawyers have realized the many advantages of a false marking suit over a traditional patent infringement suit: for instance, there is no need to have a patent of one’s own, anyone can sue, litigating the case often is easier and less expensive, and the potential damages are enormous.

However, defendants accused of false patent marking have many possible defenses. And, with a few easy steps, companies can avoid or reduce liability. Below, we pose and then answer six important false marking questions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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