Patent False Marking

By Lia Kopin-Green
/
September 1, 2022

What is Patent False Marking?

According to United States federal law, a private individual, on behalf of the government, may bring a Patent False Marking suit against any party that marks an unpatented article with the bad-faith intent of deceiving the public. In these cases, the court may award damages of “not more than $500 for every such offense.” The damages are to be split between the US government and the private individual that brought the patent false marking case forward.

The use of an expired patent may be considered patent false marking, so it is important to pay close attention to your actual filing date.

Key Takeaways

  • Patent false marking occurs when a party marks an unpatented article with the intent of deceiving the public.
  • The US government awards up to $500 per falsely marked article. The damages are distributed evenly between the government and the party that brought the patent false marking case forward.
  • The America Invents Act (AIA) changed several important requirements regarding patent false marking.

Elements of Patent False Marking

There are three conditions that must be met for a situation to qualify as patent false marking.

  • Marking or advertising any unpatented article without the consent of the patent owner.
  • The word “patent” is used or any word or number implying that the article is patented, or the word “patent pending” is used when there is no such patent pending.
  • It was done with the purpose of deceiving the public.

Patent False Marking After the America Invents Act (AIA)

On September 15, 2011, the America Invents Act (AIA) came into effect in the United States. The federal statute, which was passed by Congress and signed into law by President Barack Obama, made several significant changes to the US patent system. These modifications included strict limitations on patent false marking lawsuits.

Before the AIA was enacted “any person” was legally allowed to sue a company for patent false marking and receive damages. As a result, many began scouring the market, looking for patent false markings in order to claim a big payout. However, the AIA limited who can collect damages by stating that only people “who have suffered a competitive injury as a result of” may receive damages for patent false marking. If the false marking prevented a party from entering the market, he or she may also be able to prove competitive injury according to the recent case following the enactment of the AIA.

Bottom Line

Patent false marking is a complicated element of intellectual property law in the United States. There have been several recent changes to these laws, and damages for these matters are often determined on a case-by-case basis, so navigating patent false marking can be difficult. If you have been faced with a patent false marking suit, or if you are interested in learning if you are eligible to file a suit against another party, reach out to a professional IP lawyer as soon as possible. You will be able to count on him or her for all of your IP-related needs.

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