6 July 2010
A violation of the federal false marking statute occurs when a patent owner (1) falsely marks an article with a patent number, or the words “patent,” “patented,” “patent pending” or the like, and (2) does so with an intent to deceive the public. 35 U.S.C. § 292. The statute authorizes “qui tam” actions whereby any person can bring a lawsuit for a false marking violation and share any recovery with the government. On June 10, 2010, the Court of Appeals for the Federal Circuit held that marking a product with either an expired patent or with the phrase “may be covered by one or more patents,” can give rise to liability under the federal false marking statute. The Court did, however, provide a defense to accused defendants under the “intent to deceive” prong under the test for false marking. Pequignot v. Solo Cup Co., No. 2009-1547 (Fed. Cir. June 10, 2010).