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Avoid false patent marking pitfalls

01-12-2010

Paul J. Sutton

False patent marking has become an increasingly popular ‘bounty hunting’ basis for US litigation. The targets of such false lawsuits face huge legal fees and potentially huge monetary judgments.

False marking: While marking a product with a patent number entitles a US patent owner under 35 USC §287 to seek damages for infringement without giving actual notice of the patent, incorrect or false patent marking will expose a patentee to significant liability.

False patent marking has become an increasingly popular ‘bounty hunting’ basis for US litigation. The targets of such false lawsuits face huge legal fees and potentially huge monetary judgments. Manufacturers, facing fines of as much as $500 for every offence of false patent marking, are wisely becoming more diligent than ever in confirming the propriety of the patent numbers marked on products.

Benefits of patent marking: It is highly desirable for a patentee to be able to recover damages for past infringements. This is especially so where infringement has occurred prior to its discovery by the patentee. Months or years of undetected infringing sales can yield recovery of significant damages. It is for this reason that patentees who market a patented product will take advantage of the patent marking provisions of 35 USC §287, by properly marking each patented product with the appropriate patent number.


false patent, US litigation

WIPR

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