Federal Circuit Affirms Ruling for Defendant in New False Patent Marking Decision


On June 10, 2010, the United States Court of Appeals for the Federal Circuit issued a noteworthy decision in a qui tam action

under the "False Marking" statute (25 U.S.C. § 292). In Matthew A. Pequignot v. Solo Cup Company, No. 09-1547 (Fed. Cir.

June 10, 2010), the Federal Circuit confirmed that marking products with expired patent numbers can be false marking, but,

more importantly, that providing "credible evidence that [the] purpose was not to deceive the public" can rebut the presumption

of deceptive intent. As a result, false marking plaintiffs are now unlikely to prevail based solely upon showing a defendant knew its patents had expired. Defendants who can establish a good faith belief that their actions were legitimate by relying on advice of counsel and avoiding undue costs and business interruptions are likely to avoid liability under § 292.

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