Patent Reform Bill Would Curtail Lawsuits Against Those Who Falsely Claim Patent Protection
from the lying-is-just-fine dept
Earlier this year, we wrote about the rise of patent marking lawsuits after a court clarified how damages were calculated, making the potential haul much, much, much larger in many cases. Patent marking cases involve lawsuits against anyone who falsely claims a patent over something — whether it’s just a false claim or a situation where the patent has expired. If you recognize how patents can hold back innovation, a fake patent claim can be even worse, actively discouraging competition or research and development, even in situations where there is no government granted monopoly. Where this gets a little tricky, is that the law lets anyone bring false marking lawsuits and keep half the resulting award if they win. So the fear is that this has created a new batch of lawyers just roaming around filing such lawsuits. But is that really such a problem? Falsely claiming a monopoly over something can have serious consequences. In fact, it would be great if there were a similar law for copyfraud situations as well.
Unfortunately, though, it looks like the already troubling patent reform bill also is looking to cut back on the ability to file false marking suits. Daniel Ravicher, who has been really active in these kinds of lawsuits — and, incidentally, was also a major player in the Myriad gene patent case — helping to get gene patents invalidated — has an article up trashing the patent reform bill for “protecting patent lying.”
The Senators held no hearings and didn’t seek any comment from the public. To anyone with knowledge of U.S. patent law, the move is clearly the result of back room dealings with lobbyists completely hidden from public scrutiny. Allowing patent lying not only denies citizens a traditional consumer protection, but it also deprives the federal government of an important source of revenue….
A patent gives its owner the right to exclude anyone else from making, using, or selling the patented thing for a limited period of time. Patents are very powerful; just ask your neighborhood pharmaceutical company. To protect the public from misinformation about patents, section 292 of the Patent Act forbids false markings done “for the purpose of deceiving the public.” The law is aimed at companies who intentionally make untrue statements with the hope of deceiving the public, not those who make good faith mistakes. Patent lying is harmful to the public for many reasons. It misleads consumers into thinking the product is better than others, it scares away competitors, and it robs legitimate patentees of the marketplace distinction they deserve.
Once again, it looks like the patent reform bill isn’t about fixing the problems of the patent system, but about making things worse. It’s difficult to see why anyone could, with a straight face, claim that the law shouldn’t punish those who falsely claim a patent over something.