Patent Happenings; Multiple False Marking Suits

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With the explosion of patent false marking suits filed in 2010, courts must face many issues of first impression. One such issue is what to do when two or more plaintiffs bring different qui tam false marking suits for the same alleged act of false marking. The article analyzes whether Section 292 of the Patent Act permits mutliple penalties for the same act of patent false marking, and concludes that under the plain language of the statute, the doctrine of claim preclusion, and possibly the doctrine of double jeopardy, multilpe penalties should not be permitted. The article further analyzes whether, when faced with a second-filed false marking suit, a district court should stay, trasnfer or dismiss the second-filed action, and reports on the recent district court opinions addressing this issue.

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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.

© Robert Matthews, Jr., Matthews Patent-Law Consulting | Attorney Advertising

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