Although the lion's share of these cases allege that the patents in suit were expired at the time of marking, Judge Brinkema suggested in Pequignot v. Solo Cup Company, Case No. 1-07-cv-00897 (E.D. Va.), that establishing intent to deceive in the case of an expired patent may be difficult:
"When a product is marked with an expired patent number, any person with basic knowledge of the patent system can look up the patent and determine its expiration date, reducing the potential for being deceived."
Should the Federal Circuit adopt this position, more than two-thirds of the pending false marking cases would be affected.
The chart below provides a visual of these statistics as of this writing. The complete listing of cases can be found at the Gray On Claims blog here. Additionally, a downloadable pdf complete with accused products and patents can be found here.