The false marking provisions of the U.S. Patent Act historically provided that, in addition to the government, any individual or company had standing to sue a party that included a false patent marking on its products. The law had been construed by the Federal Circuit to apply a $500 fine to each falsely marked product and many lawsuits brought under the law targeted companies that continued selling products with a patent marking after the patent had expired. The America Invents Act, which was signed into law by President Obama on September 16, 2011, strikes from the law the provision that allows individuals the right to sue, leaving only the government and competitors with standing to bring such suits. While the America Invents Act provides that competitors can still sue for damages to compensate for competitive injuries incurred as a result of false marking, now only the government is permitted to obtain the $500 fine per falsely marked product. The America Invents Act further provides that including an expired patent number on a product does not constitute a violation of the false marking law.
TIP: While individuals can no longer bring false patent marking claims, the inclusion of a false patent marking on a product remains a violation of federal law and can subject your company to potentially significant monetary damages.
