Qui Tam Provision of False Marking Statute is Unconstitutional

The court granted defendant's motion to dismiss plaintiff's qui tam false marking claim "on the ground that the qui tam provision of 35 U.S.C. §292(b) is unconstitutional." "The Take Care Clause of Article II of the Constitution provides that the President 'shall take Care that the Laws be faithfully executed.' . . . [U]nlike the FCA, the False Marking statute lacks any of the statutory controls necessary to pass Article II Take Care Clause muster. The False Marking statute essentially represents a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice. It is unlike any statute in the Federal Code with which this Court is familiar. Any private entity that believes someone is using an expired or invalid patent can file a criminal lawsuit in the name of the United States, without getting approval from or even notifying the Department of Justice. The case can be litigated without any control or oversight by the Department of Justice. The government has no statutory right to intervene nor does it have a right to limit the participation of the relator. The government does not have the right to stay discovery which may interfere with the government’s criminal or civil investigations. The government may not dismiss the action. Finally, the relator may settle the case and bind the government without any involvement or approval by the Department of Justice."

Unique Product Solutions, Limited v. Hy-Grade Valve, Inc., 5-10-cv-01912 (OHND February 23, 2011, Order) (Polster, J.)