False Marking

The America Invents Act of 2011 eliminated qui tam actions for falsely marking a good as patented. For a short while, the false marking provision of the Patent Act (once interpreted by courts to allow for very substantial damages) was a sharp weapon against manufacturers who falsely claimed their products are patented. Too sharp, Congress decided. The America Invents Act eliminated false marking lawsuits not just in the future but also ended all lawsuits pending at the time the law went into effect. This week, the Court of Appeals for the Federal Circuit invoked America Invents to dismiss FLMC’s false marking claim against Wham-O, Inc. The court did not address possible constitutional issues that retroactive application of the new law might raise. If courts were once too hard on manufacturers who falsely mark their goods, now courts are forced to be too soft. Yet it is unlikely that Congress will anytime soon find a just right solution for the persistent problem of false uses of the patent mark.  

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