Any Person Can Sue for False Patent Marking


The false patent marking statute, 35 U.S.C. § 292, permits any person to bring a qui tam suit on behalf of the United States against a patent holder and to share in the recovery of any penalties assessed on the falsely-marked articles. In 2009, the U.S. Court of Appeals for the Federal Circuit found that the false-patent-marking statute allows for recovery of up to $500 per article as a penalty, rather than the up to $500 per-decision penalties previously imposed by lower courts. Since this change in the law, plaintiffs (or “relators” in false-marking suits) have filed a plethora of false-marking suits seeking large damages awards from defendants in numerous technology areas. In response, patent holders have asserted a wide variety of defenses, including that non-practicing relators lack standing to sue because they have not suffered any competitive injury. In late August 2010, the Federal Circuit undermined this standing defense in Stauffer v. Brooks Brothers, Inc. by interpreting 35 U.S.C. § 292 to permit broad standing for any person to bring a false-marking action.

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