Avoiding Intent In A False Patent Marking Action
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.”
Historically, a single decision to mark a batch of products was treated as a single offense with a $500 penalty. But in Forest Group Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009), the U.S. Court of Appeals for the Federal Circuit interpreted "offense" to be the sale of each individual article in the batch of products.
Read the entire Law360 article written by Patent attorneys John Nemazi & Robert Tuttle.
Original Publication: Law360 July 21, 2010