The day starts out quiet enough. I wake up and scoop my contacts out of the Clear Care® contact lens solution they’re swimming in. Blinking rapidly to settle my contacts, I focus on some tiny numbers printed on the contact solution box. Patent numbers. I’ve been using the solution for years and wonder how old the patents must be. I do a quick Google search and discover that the patents have expired. Strange that expired patents would be printed on the box… My 3 year old interrupts my thoughts as she walks up to me still rubbing her eyes, complaining that her Goodnites® Sleep Shorts are soggy. Knowing that absorbent products containing hydrogels with ability to swell against pressure don’t change themselves, I quickly get her some dry pants. Doing so, I check the box and sure enough, more expired patent numbers. Next I head to the kitchen to look at my “to-do” list for the day. As I look over my list, I check my blood sugar with my nifty Accu-Chek® device. On it I find more expired patent numbers. I’ve never noticed patent numbers before, but suddenly the world seems populated with products stamped with the indicia of expired monopoly rights.
First item of the day is to give Scruffy his Heartgard®. I look for my favorite pair of scissors to cut open the box. No one else is allowed to use my Fiskars®, so I know exactly where they are in the drawer, right behind my Mead® envelopes. Once again, more expired patent numbers on both. Once Scruffy has broken free of my vise-like grip, I see tufts of his hair floating about as a result of our tussle. You’d think he’d be grateful that I’m protecting him from heartworms, but no, he has to fight like a caged lion and litter my floor with fur balls. No matter, I head to the broom closet and pull out my trusty Oreck®. Sure enough, more expired patent numbers. Seems like they’re everywhere. As I put the vacuum cleaner way, I realize I’m running late. Not having time to put on my make-up, I make do with some moisturizer and Blistex®. Another expired patent number. I can feel a head-ache coming on, so I pop a couple of Advil® on my way to lock the sliding door, where I notice the lid to the Weber® grill on the back porch is askew from last night’s wind storm. Two more expired patent numbers. After setting it to rights, turning down my Hunter $et’N’$ave thermostat, grabbing my keys and the girl, I head out for breakfast.
At the local diner, I notice in the background the classic Bunn® coffee maker, complete with orange handled decaf carafe sitting on the top. I quietly make my way to the counter, and nonchalantly begin to set the removable parts of the machine to the side. I glance around me, and then quickly lean the machine back into the cook’s window so I can get a good look at the bottom. Ah ha! I quickly grab my phone, snap a few photos and carefully lower the Grand Poobah of coffee makers back into place. A waitress stares at me as I walk back to my booth. Little does she know that the joke is on her – everyone knows that if patent numbers like the ones seen on the bottom of the Bunn start with a “3” they are expired!!!
A maniacal laugh escapes my lips as I snatch my daughter’s crayons and begin to frantically write down the list of products I have used today. I start to do the math in my head, knowing that 3 to the 20th power, multiplied by the square root of 14 and carrying 4 will certainly give me the exact answer I need. I smile as the realization washes over me: I just made 42 bajillion dollars today. And it’s not even 9 am.
On a more serious note, in Forest Group, Inc. v. Bon Tool Co., the Federal Circuit responded to plaintiff’s argument “that interpreting the fine of § 292 to apply on a per article basis would encourage ‘a new cottage industry’ of false marking litigation by plaintiffs who have not suffered any direct harm” with this statement: “This, however, is what the clear language of the statute allows. Section 292(b) provides that ‘[a]ny person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.’ 35 U.S.C. § 292(b).”
The recent explosion of False Marking cases is evidence that the “cottage industry” has indeed begun, and people are now finding expired patent numbers everywhere. Each product mentioned in the above fictional narrative was listed in False Marking complaints found in Wednesday’s Docket Report, which contained a total of 25 new cases, 17 of those for False Marking. Today’s Docket Report contained 10 more False Marking cases out of 19 total new cases. For a more serious discussion of these cases, please see Justin Gray’s blog, Gray on Claims. To see a daily summary of these events, along with every noteworthy event in patent litigation in the US District Courts, subscribe to the Docket Report or ask for a free trial.