The Federal Circuit's opinion in Forest Group dramatically alters the way in which the district courts must assess the penalty under Section 292 for defendants found guilty of falsely marking an unpatented article as if it were patented. Under the new standard the penalty is applied on a per article basis, and can range anywhere from fractions of a penny to $500 per article. This new standard, and the uncertainty in how district courts will set the penalty rate in a given case, provides greater financial incentive for plaintiffs to pursue false marking qui tam actions then they had before. Indeed, as noted in the opinion, there is a new breed of troll, the “marking troll” making its way on the scene and this decision will only embolden and encourage these plaintiffs to bring suits and push the envelope for what conduct constitutes false marking.
The article summarizes the Federal Circuit’s opinion, notes its likely impact in increasing the number of false marking claims filed, identifies questions left open by the opinion, and tries to provide an implicit warning to corporations to be careful in their marking efforts, including vigilantly ceasing to mark newly made products where a patent has expired.
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