False Marking

CAFC: $500 fine per falsely marked article(05/03/10)

Marking: A false marking claim under 35 U.S.C. §292 requires an intent to deceive the public, which is found when “a party acts with sufficient knowledge that what it is saying is not so and consequently that the recipient of its saying will be misled into thinking that the statement is true.” In Forest Group v. Bon Tool, the CAFC agreed with a lower court ruling that Forest lacked requisite knowledge to falsely mark prior to November 15, 2007, when it received a second summary judgment determination of non-infringement in a separate case case that its S2 stilts were not covered by the ’515 patent. The Court, however, vacated the lower court's fine of a mere $500 for a single decision to false mark, stating, “The plain language of the statute does not support the district court’s penalty of $500 for a decision to mark multiple articles. Instead, the statute’s plain language requires the penalty to be imposed on a per article basis.”

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