Increased Liability For False Patent Marking Puts Manufacturers At Risk

Potential liability for false patent marking significantly increased following a recent court of appeals decision. The court decided a fine of up to $500 may be assessed for each individual article that is marked with an invalid, expired, or incorrect patent number. Several suits have now been filed by plaintiffs alleging false marking and seeking large damages against manufacturing companies.

It is increasingly important for manufacturing companies to review their product labeling to ensure that the listed patents cover the product marked, and that the product labeling is revised when patents expire or are held invalid.

The Federal Circuit's decision issued December 28, 2009 in The Forest Group, Inc. v. Bon Tool Company (No. 2009-1004 (Fed. Cir. Dec. 28 2009) interprets the false marking provision of the U.S. Patent Act. (35 U.S.C. § 292). The false marking provision serves to discourage a seller from falsely marking an unpatented article. False marking includes