Federal Circuit’s false marking decision could bolster plaintiffs
14 June 2010
Eileen McDermott, New York
The Federal Circuit has upheld a district court’s decision that Solo Cup Company is not liable for falsely marking its products, but the Court also clarified that expired patent numbers can count as false markings
In Pequignot v Solo Cup, an individual patent attorney, Matthew Pequignot of Pequignot & Myers, sued Solo Cup Company for including expired patent numbers on its disposable drinking cup lids.
Pequignot was able to sue the company despite having no direct competitive stake in the case because false marking suits can be brought as qui tam actions in the US.
Since the Federal Circuit's December 2009 decision in The Forest Group v Bon Tool Company, there has been a marked upswing in false patent marking suits.
According to Justin Gray of the Gray on Claims blog, there have been 233 false marking cases brought so far this year. That compares to about 19 in total in 2009.
In his opinion in the Solo Cup case, Judge Alan Lourie said that, "as with a never-patented article, an article marked with an expired patent number imposes on...
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