Friday, March 25, 2011

NYSD Weighs in On Constitutionality of False Marking Statute

The court granted in part defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim, but rejected defendant's constitutional challenge to 35 U.S.C. § 292. "The Court finds that Section 292 is constitutional because, among other reasons, 'the Executive Branch is not without the ability to assert its interests in a [Section 292] qui tam action.'. . . This Court distinguishes Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc. [(N.D. Ohio Feb. 23, 2011)], where the district court described the False Marking Statute as a 'wholesale delegation of criminal law enforcement power to private entities.' This Court is of the view that Section 292 is 'civil in form, even though it arises under a criminal statute.'"

Public Patent Foundation, Inc. v. Glaxosmithkline Consumer Healthcare, L.P., 2-09-cv-05881 (NYSD March 22, 2011, Order) (Berman, J.)

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