Wednesday, July 7, 2010

Qui tam Plaintiff Cites Professor Crouch's Question to Readers as Proof that Patent Expiration Dates are not Readily Ascertainable

From the Complaint:

“The expiration of a United States patent is not readily ascertainable by members of the American Public at the time of the product purchase. The patent number itself does not provide members of the public with the expiration date of the patent. Basic information about a patent, such as the filing, issue, and priority dates of the associated with a particular U.S. patent number are available at, for example, the website of the United States Patent and Trademark Office. Access to the Internet, however, is necessary to retrieve that information and even after retrieving that information, a consumer most likely does not know the rules governing the term of a patent based on the filing and priority dates. For example, Dennis Crouch, the esteemed patent law professor who writes the popular web log “Patently-O” solicited his readers for a “process flow-chart” for “determining whether an issued patent is still in force.” See That a patent lawyer as skilled as Professor Crouch requires a flow chart to determining whether a patent is still in force is clear indication that the American Public at large cannot perform this calculation at the point of purchasing products. And because Defendant has chosen to either neglect or abdicate its duty to appropriately mark its products, it shifts its duty to the American Public, who necessarily suffer as a result of the false mark.”

North Texas Patent Group, Inc. v. The Hain Celestial Group, Inc., 3-10-cv-01310 (TXED July 6, 2010, Complaint)

1 comment:

PriorSmart said...

I feel like the plaintiff makes a compelling and well-reasoned case for better transparency from the USPTO and "markers" on expirations. Clearly false marks injure the public and ambiguity in the expiration definitely hampers competitors ability to innovate without fear of infringement.