Marking Article Made Using Patented Method With Method Patent's Number Does Not Constitute False Marking

Defendant's motion to dismiss plaintiff's qui tam false marking case for failure to state a claim was granted. "[M]arking an article made via a patented method with the patent number of the method patent does not constitute false marking merely because the public cannot immediately tell whether the number refers to a method patent instead of an apparatus patent. Section 292 of Title 35 has never been construed to go so far. . . . Section 287(b)(4)(c), moreover, would seem to bless the very marking scheme challenged here."

San Francisco Technology Inc. v. Elkay Plastics Company, Inc., 3-11-cv-00291 (CAND April 15, 2011, Order) (Alsup, J.)