False Marking Statute’s Qui Tam Provision Ruled Unconstitutional

U.S.C. § 292) is unconstitutional. In Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc., No. 5:10- cv-1912 (N.D. Ohio Feb. 23, 2011), Judge Polster of the U.S. District Court for the Northern District of Ohio held that the statute, which allows private citizens to bring false marking claims, does not provide for sufficient controls by the Executive Branch and thus runs afoul of the Take Care Clause of the U.S. Constitution.

Background

A false marking offense occurs when, with the intent to deceive the public, a person or entity marks patent numbers on unpatented articles or uses patent numbers in advertising in connection with unpatented articles. 35 U.S.C. § 292(a). A person or entity found to have violated the False Marking Statute is liable to pay a fine of not more than $500 for every false marking offense. Id. This fine is split evenly between the plaintiff and the United States. 35 U.S.C. § 292(b). In Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295