Product Marked with Patent Previously Deemed Unenforceable is "Unpatented" for Purposes of False Marking Claim

The magistrate judge recommended denying defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim. "An article that is no longer protected by a patent -- because it is held unenforceable via inequitable conduct -- is not 'patented,' and it is more aptly described as 'unpatented.'. . . Similarly, an article marked with an unenforceable patent imposes that same cost on the public. Such cost is at least part of the reason why the false marking statute was created by Congress."

Promote Innovation LLC v. Medtronic, Inc., 2-10-cv-00233 (TXED February 2, 2011, Order) (Everingham, M.J.)