Release of False Marking Claims Applies to All Products Marked with Patent Numbers

Plaintiff's motion to amend his qui tam complaint for false marking to add a new defendant was denied as futile because two other relators had already settled their false marking claim against the proposed defendant. The court rejected plaintiff's argument that the accused product in the instant suit was not addressed by the other actions. "Having received money from [the proposed defendant] in exchange for broad releases of any claims of improper marking by [the proposed defendant] or of [the proposed defendant's] products with the [patent-in-suit], the United States has relinquished any right to damages from [the proposed defendant] in another lawsuit alleging improper marking with the same expired patent. . . . It is common for parties to settle contested litigation with broad releases of the type used in the [other] cases, which relinquished improper marking claims whether known or unknown, and whether or not asserted in any lawsuits. We see nothing in Section 292 that alters this basic tenet of contract law."

Simonian v. Irwin Industrial Tool Company, 1-10-cv-01260 (ILND January 18, 2011, Order) (Schenkier, M.J.).