The parties to one of the thousands of false marking cases that have been filed since 2010 have agreed that the case is moot following enactment of the America Invents Act
Wham-O challenged the constitutionality of the false marking statute in the Federal Circuit earlier this year, despite having won two false marking suits in district court.
That is probably because the Federal Circuit ruled in another case that under the previous false marking statute, a case could not be dismissed simply because the person bringing it had no direct competitive injury.
But now, in a letter dated September 29, Wham-O counsel Andrew Dhuey said that he and counsel for FLFMC, the company that brought the false marking suit, agreed that the case has been rendered moot and that the district court decision should be vacated.
Under the new false marking statute, only someone who can prove they have suffered competitive injury due to false patent markings, or the US government can bring false marking suits. Expired patent markings are no longer considered violations.