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In a recent decision, Forest Group, Inc. v. Bon Tool Company, 590 F.3d 1295 (Fed. Cir., December 28, 2009), the CAFC held that the Patent Law, 35 U.S.C. § 292, requires that any article that is falsely marked with a patent number with intent to deceive the public result in a separate fine of up to $500 per article. Accordingly, the CAFC vacated a $500 total fine imposed by a district court and remanded for a determination of the number of articles which were falsely marked by Forest Group with intent to deceive the public and the fine to be assessed per article.
The CAFC, in determining that fines were to be assessed per article, noted that Congress intended for uninterested third parties to be able to bring qui tam actions to enforce 35 U.S.C. § 292, and that only per article penalties would be sufficient to encourage such actions. Many qui tam suits have been brought since the CAFC's Forest Group decision, with some qui tam plaintiffs even going so far as to file multiple suits in a single day.
The "intent to deceive the public" requirement for liability under 35 U.S.C. § 292 creates a high burden of proof for potential qui tam plaintiffs. To avoid becoming an attractive target for a false marking suit, however, it is important to make sure that all of your products are marked only with patent numbers which are unexpired and whose claims actually appear to cover the marked products. If you are sued, it is important to retain a knowledgeable attorney who can dispose of the false marking suit, which is usually brought without much investigation in hopes of quick and in expensive settlement.
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