False Marking Claim Defeated At Summary Judgment -- Employee Mistakes Do Not Constitute False Marking

The court granted defendants' motion for summary judgment of no false marking where defendants presented evidence that "[they have] over 1,000 [SKU's], that each SKU generally has its product’s applicable patent number marked on the back of the product packaging, that many of the product packages were created with older packages as templates, and that [defendants'] counsel . . . has been in poor health and not readily available for consultation. . . . [T]he false markings made by [defendants] appear to be nothing more than mistakes made by employees. . . . Assuming arguendo, that [plaintiff] met its burden that [defendants] had knowledge of the false marking on its products, [defendants'] incorrect patent markings against its own economic interest would weigh against a finding of intent to deceive the public."

Bow Jax Inc. v. Sims Vibration Laboratory Inc., et. al., 2-09-cv-00047 (WAED April 6, 2011, Order) (Peterson, J.)