System Component Used to Practice Claimed Method is not an "Unpatented Article" For Purposes of False Marking

Following a bench trial, the court found that defendant did not violate the false marking statute, 35 U.S.C. § 292 by marking the "primary packaging and outer packaging" of a contact lens cleaning system with patents claiming various aspects of the cleaning system. In particular, the disinfecting solution was not an "unpatented article" with respect to a patent claiming "a method of disinfecting soft contact lenses." "The [patent-in-suit] covers the use of the [disinfecting solution] with the [disposable cups and discs] to disinfect soft contact lenses, which is the intended use of the product. Because the claims of the [patent-in-suit] cover the use of the [disinfecting solution], the Court finds that [the disinfecting solution] is not an 'unpatented article' as that term is used in § 292."

Harrington v. CIBA Vision Corp., 3-08-cv-00251 (NCWD July 21, 2010, Findings of Fact and Conclusions of Law) (Whitney, J.)