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ARTICLE · 24 JANUARY 2010

Damage Assessments For False Patent Marking To Be Applied On A Per-Article Basis

Duane Morris LLP
Duane Morris LLP
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On December 28, 2009, in "Forest Group v. Bon Tool Company", the U.S. Court of Appeals for the Federal Circuit rejected long-standing precedent to hold that the plain language of the false marking statute (35 U.S.C. § 292) requires the civil penalty to be imposed on a per-article basis—meaning that a false marking claimant may now recover up to $500 "per falsely marked article".

United StatesIntellectual Property

On December 28, 2009, in Forest Group v. Bon Tool Company,1 the U.S. Court of Appeals for the Federal Circuit rejected long-standing precedent to hold that the plain language of the false marking statute (35 U.S.C. § 292) requires the civil penalty to be imposed on a per-article basis—meaning that a false marking claimant may now recover up to $500 per falsely marked article.

The false marking statute provides, in pertinent part:

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word "patent" or any word or number importing that the same is patented, for the purpose of deceiving the public . . . shall be fined not more than $500 for each such offense.

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