Qui Tam Provisions of False Marking Statute are Unconstitutional Even if Considered Civil or Civil-Criminal Hybrid

The court granted the U.S. government's motion to reconsider its earlier ruling that 35 U.S.C. §292 violated the Take Care Clause but the court reaffirmed its earlier decision. "[T]he government claims the Court erroneously relied upon the sufficient control analysis utilized in Morrison v. Olson, 487 U.S. 654 (1988), because a False Marking qui tam relator is not an inferior officer of the government, but rather, is an assignee of a revocable interest of the United States. The government’s argument for reconsideration is premised upon its belief that the Court incorrectly characterized the False Marking Statute as criminal rather than civil. . . . [E]ven if the False Marking Statute is considered to be civil or a civil-criminal hybrid governed by the Federal Rules of Civil Procedure, the Court would still find the statute unconstitutional under the Morrison sufficient control analysis. . . . [T]he Court believes that, because it must follow the Sixth Circuit’s application of the Morrison analysis to the non-patent False Claims Act, consistency requires the Morrison analysis to apply to the False Marking Statute, as well."

Unique Product Solutions, Limited v. Hy-Grade Valve, Inc., 5-10-cv-01912 (OHND March 14, 2011, Order) (Polster, J.)