Debate over false marking reforms

01 April 2010

As part of the Senate's compromise on patent reform proposed last month, a new provision on false patent marking would put an end to the recent proliferation of such cases

Eileen McDermott, New York

In a false marking suit a plaintiff alleges that a company has wrongly marked its product as being protected by a patent, when it is not.

The amendment requires that a person who brings a false marking suit against a company must have "suffered competitive injury as a result of a violation of this section". The new standard would also apply to cases pending prior to the provision's enactment.

Of the more than 100 false marking suits filed this year, almost none were brought by parties who would satisfy the new requirement.

Following two recent court decisions that have been highly favourable to plaintiffs, false marking complaints have skyrocketed. According to a list hosted by Justin Gray of the Gray on Claims blog, there have been 106 false marking suits filed since January this year. That compares to a total...

Only subscribers have complete access to Managing IP Magazine, log in or subscribe now.

Alternatively take a free trial, giving you 48-hour access to Managing IP Magazine (some articles and surveys may be excluded).