Comments on: A Fanciful False Marking Fiction By a Cottage Industrialist

By: Noise above Law

Noise above Law — Sat, 27 Feb 2010 23:34:36 +0000

*expressly – not in the direct legal sense – sorry for the loose legal language – see more current decisions on this very topic.

E.D. Va may agree now – it will not when all is said and done.

By: Noise above Law

Noise above Law — Sat, 27 Feb 2010 23:33:02 +0000

for example – “Brinkema also rejected Pequignot’s arguments, backed by the consumer groups, that each cup or lid was a separate “offense” ” has now been expressly overruled.

By: Noise above Law

Noise above Law — Sat, 27 Feb 2010 23:31:18 +0000

the case is not final – expect the law to be applied as I indicated

By: Noise above Law

Noise above Law — Sat, 27 Feb 2010 23:29:22 +0000

look at the rationale for the dismissal

By: hotboxing examiner

hotboxing examiner — Sat, 27 Feb 2010 01:02:04 +0000

Noise Above Law says “Sorry, you do not. E.D. Va does not agree with you”

I assume the first poster was talking about the Solo Cup case involving expired patents. The judge dismissed that case (http://www.dailyherald.com/story/?id=317069). So I don’t understand you, Noise Above Law. Did that case deal with a different issue?

By: Noise above Law

Noise above Law — Fri, 26 Feb 2010 21:00:07 +0000

Patent terms are known to be a limited time item. Paying for a patent means that you should know when it expires. The mens rea is very easy to reach in any such cases of expired patents.

The more difficult cases will be for those products that experience product changes during the course of petent terms (typically product improvement drives in production) that make that product fall outside the claims of a patent.

Even though this would be difficult, the fact of the matter is that you do not have to mark, and that marking carries with it certain risks along with the legal benefits. I could very much see courts taking a line here that companies wanting those legal benefits do not get to ignore the law that holds that the mark IS the status, and not an invitation to look up the status. Mens rea may be inherent in the choice to grab the legal benefits of marking.

By: Vincent LoTempio

Vincent LoTempio — Fri, 26 Feb 2010 18:41:51 +0000

If you think that constitutes a “cottage industry” what will happen if one of these cases gets a huge damages award? How many would be “Patent Police” will come out of the woodwork? Boy i would love to make 42 bajillion dollars today too. I love math your skills.
It will be interesting to see if the courts will find the necessary mens rea to find false marking and what the courts will do in the “exercise of their discretion” as to the size of damage awards.

By: Noise above Law

Noise above Law — Fri, 26 Feb 2010 17:22:47 +0000

” I have the right to mark my product with a patent number that means these things.”

Sorry, you do not. E.D. Va does not agree with you.

It would behoove you to check the law before giving such errant advice.

By: Overlawyered Pushback

Overlawyered Pushback — Fri, 26 Feb 2010 16:44:15 +0000

“Marking is a priveledge, not a right.”

The truth is a right though. Truth, as in, “this product is described in a patent and was, at one time, considered new and nonobvious. The maker of this product is clever.” If I have the right to truthfully state these things, I have the right to mark my product with a patent number that means these things. I’m glad at least the E.D. Va agrees.

By: Jerry Miller

Jerry Miller — Fri, 26 Feb 2010 14:05:29 +0000

Fun story. Along the same vein, I have pondered whether anyone has considered suing the USPTO for false marking the T-shirts they sell in the gift shop that say “Patent Pending”. :~)
J