Tuesday, March 23, 2010

False Marking Causes and Statistics

In the months following the Federal Circuit's decision in Forest Group, Inc. v. Bon Tool Co., Docket Navigator has collected a comprehensive group of over 150 patent cases alleging False Marking . Of these known cases, 114 allege that the patents in suit are expired, 43 allege that the accused products are not within the scope of the marked patent, 5 allege that the products erroneously claim to be either patent “protected” or “pending”, 2 allege that the marked patent has been found invalid in a civil proceeding, and 1 alleges that the marked patent has been found unenforceable in a civil proceeding.

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.

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