The Expansion and Possible Contraction of False Marking Cases


Following the Federal Circuit's 2009 Forest Group decision, and continuing after Stauffer v. Brooks Brothers, Inc., the number of false marking complaints under 35 U.S.C. § 292 vastly increased. Some predicted this trend, for even the Federal Circuit acknowledged that a "cottage industry" might result following its expansive interpretation that § 292 authorizes fines up to $500 for every falsely marked article.

This expansion, however, has been met by corresponding efforts—by the courts and Congress to curb the number of false marking complaints. In particular, challenges to the constitutionality of § 292, such as that raised in the Northern District of Ohio's decision in Unique Product Solutions, as well as proposed Congressional amendments and the recent Federal Circuit decision in In re BP Lubricants USA Inc., may result in a contraction of these actions. Whether any judicial change or potential congressional alteration impacts the trend has yet to be seen.

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