Defendant's motion to dismiss plaintiff's qui tam false marking action for failing to plead with particularity was denied. "By using the word 'patent' in its advertisements connected with the sales of its cotton candy machines, when it had no such patent, [defendant] has acted as someone who says, "I am not married," when indeed, they are."
Defendant's motion to dismiss plaintiff's qui tam false marking action as unconstitutional was denied. "This Court agrees with the government's rationale that the [False Marking Statute] is subject to control mechanisms not listed in the statute. . . . [FRCP] 24(a)(2) gives the government a controlling mechanism through its right to intervene. . . . Further, the division of the fines imposed. . . provides another control mechanism. Without notifying the government of its suit, relators cannot seek their portion of the civil penalty."
United States of America, ex rel. VendEver LLC v. Intermatic Manufacturing Ltd., 3-11-cv-00202 (TXND June 20, 2011, Order) (Solis, J.)
1 comment:
I'm glad the court ruled this way. Though no one is fond of false marking patent trolls, nevertheless I don't believe that doing away with the false marking statute is the way to go. False marking has the potential to harm innovation, and I think it's entirely appropriate to enforce the statute. The main difficulty now lies with potentially-exorbitant damage awards to qui tam plaintiffs (and Uncle Sam). I've never been convinced by the unconstitutionality argument; it's the damages issue that really needs to be addressed.
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