How To Defend Against False Marking Suits

Law360, New York (May 14, 2010, 11:33 AM EDT) -- Under 35 U.S.C. § 292, a fine of up to $500 may be levied on anyone who, for the purpose of deceiving the public, marks an “unpatented article” with any word or number that implies that the article is patented. The statute authorizes a unique qui tam enforcement mechanism, whereby any private party may bring a false marking claim on behalf of the United States and, as a reward, splits the fine with the government.

Courts had long interpreted the statute to authorize only one fine...
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