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ARTICLE · 23 JUNE 2010

Marking Update: District Courts Assess Penalties "Per Article" in False Marking Suits

Fish & Richardson PC
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As we reported through our Fish & Richardson Bulletin and related webinar, the Federal Circuit’s recent decision in Forest Group, Inc. v. Bon Tool Co. announced a new standard for imposing fines under the false marking statute, 35 U.S.C. § 292.

United StatesIntellectual Property
Nagendra (Nick) Setty
Nagendra (Nick) Setty

As we reported through our Fish & Richardson Bulletin and related webinar, the Federal Circuit's recent decision in Forest Group, Inc. v. Bon Tool Co. announced a new standard for imposing fines under the false marking statute, 35 U.S.C. § 292. The ruling supplanted the former "per occurrence" basis (which considered mismarking of multiple articles or an entire product line as a single statutory violation) with a "per article" rubric. Now, parties found liable for false marking face fines of up to $500 for each mismarked product.

Two recent opinions implement the Federal Circuit's approach in Bon Tool, and a third case addresses the applicable statute of limitations.

Forest Group, Inc. v. Bon Tool Co., Civil Action No. H-05-4127 (S.D. Tex. April 27, 2010) (Memorandum and Order).

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