The false marking statute of the Patent Act (35 U.S.C. § 292) prohibits marking as “patented” any product that is not patented. Section 292 also gives individuals the right to bring a qui tam action and to collect statutory damages up to $500 for each falsely marked product. Although once rarely invoked, the qui tam provision is increasingly being used by plaintiffs against large manufacturers of patented and formerly patented products. The number of qui tam lawsuits has exploded in the past couple years, and there is now a debate raging among lawyers and commentators as to whether the qui tam provision still serves its original function of punishing firms who improperly seek to squelch both free trade and the public domain by false claiming a product or service as patented. Congress is considering various ways of amending or even eliminating the qui tam provision as part of the patent reform legislation that is currently being debated on the Hill. Complicating matters, in early March 2011, a federal district court in Ohio held that the qui tam provision is unconstitutional, violating the Take Care Clause in Article II, § 3. This panel discusses the current state of play and what changes, if any, should be made to the qui tam provision of the false marking statute.
- Mr. Trevor K. Copeland, Brinks Hofer Gilson & Lione
- Mr. Arthur Gollwitzer, Floyd & Buss LLP
- Prof. Elizabeth I. Winston, Columbus School of Law, The Catholic University of America
- Moderator: Prof. Adam Mossoff, George Mason University School of Law