The false marking statute, 35 U.S.C. § 292, which has been in place in its current form since 1952 imposes a fine of $500 per offense for falsely marking a product as “patented”, “patent applied for” or “patent pending”. Previously, a single decision to mark a batch of products was treated as a single offense with a $500 penalty. In Forest Group Inc. v. Bon Tool Company, 590 F.3d 1295 (2009), the court interpreted “offense” to be the sale of
each individual article in the batch of products. Accordingly, the maximum fine that a court can impose as a failed marking penalty has risen dramatically in instances where there are large batches of products being sold. The court, however, noted that the $500 was not a fixed fine and where products were low priced, the fines could be proportionately low.
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