Monday, May 24, 2010

False Marking Includes Marking With Expired Patent Number

Plaintiff's complaint alleging expired patents as the basis for a false marking claim did not fail to state a claim under 35 USC § 292. "[Defendant] contends that its challenged articles are not 'unpatented' because they practice a once-existing, but now-expired, patent. . . . All of [the] perceived evils [described in Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009)] are present when a patentee continues to affix the 'patent' designation to an article even after it has entered the public domain by reason of the patent’s expiration. . . . It is also worth noting that in part Section 292(a) refers to a marking that contains 'the word "patent" or any word or number importing that the same is patented'. That use of the present tense 'is' appears to undercut [defendant's] argument as to an article that once was protected by a patent but no longer is."

ZOJO Solutions Inc. v. The Stanley Works, 1-10-cv-01175 (ILND May 12, 2010, Memorandum Order) (Shadur, J.)

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