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.)