Court Says Patent Marking Law Is Unconstitutional; Expired Patent Trolls May Be Put Out Of Business

from the patent-marking dept

We've been covering the various lawsuits and legal questions surrounding false marking or false patent marking over the last year. You can read the link above for details, but the short version is that patent law says you can't say something is patented when it is not -- and that includes items whose patent has expired. That all makes some amount of sense, especially considering the goal should be that once something goes off patents, others shouldn't be afraid to use it. However, the law also added a provision that lets anyone (yes, anyone) bring a false marking lawsuit -- so long as they split the proceeds with the US government. The goal here was to give private actors incentive to enforce this law, since the feds knew quite well they'd mostly ignore it themselves.

The law had a liability limit of $500 for false marking. And therein lies a big problem, because that $500 is defined somewhat ambiguously, and it wasn't clear if, say, you made a bunch of ties and marked them with an expired patent, if you were liable for $500 total for the whole bunch... or were you liable for $500 for each individual tie that bore the mark? Not too long ago, a court ruled that it was for each individual item, rather than at the product line level... and that opened the floodgates, as various folks around the country just went in hunt of any product with an expired patent number they could sue for mega bucks. In one example, it was noted that this ruling made the total liability jump from $500 to $10 trillion.

I was somewhat conflicted about all of this. I agree that you shouldn't be able to falsely mark something as being patented, but it also seemed quite clear that this ruling and law were being abused not for any real consumer protection, but just to squeeze money out of manufacturers -- and that seemed problematic.

velox was the first to alert us to a ruling that said such false marking laws are unconstitutional, mainly because they hand over a function of the government (preventing false markings) to private citizens, noting that this violates the constitution in handing over criminal law issues to private actors. I imagine there will be appeals and other rulings on this issue, but from an initial quick read, this ruling seems to make sense. It doesn't make it legal to falsely mark a patent, but recognizes that this is a matter for the government to decide, not some private citizen.

Reader Comments (rss)

(Flattened / Threaded)

  • icon
    Capitalist Lion Tamer (profile), Mar 4th, 2011 @ 4:17pm

    Oh, come on, Mike...

    You know from these threads alone that nothing stops trolls.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Mar 4th, 2011 @ 4:32pm

    Anti-Mike troll unsure how to attack Mike on this.

    Gimme a second



    this will have to do.

    Typical Masnick,
    People infringing active copyright?
    Do nothing about it, adapt your business instead, move along, you don't deserve protection only those stealing from you do.
    People infringing active patents?
    Do nothing about it, adapt your business instead, move along, you don't deserve protection, only those stealing from you do.

    People using expired patents?
    They deserve constitutional protection from who? not government, not businesses, but from the little guys, this time they're the scumbags.

    Only way to be in with Mike is to not have the law on your side.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Mar 4th, 2011 @ 6:30pm

    But it's not like the federal government does anything to stop bogus patent claims to begin with. They're too busy protecting industry by enforcing nefarious copy'right' and patent laws. So then no one is going to do it and these bogus patent claims are essentially legal, especially if you're a big corporation with tons of money to defend yourself and with tons of campaign contribution cash.

    reply to this | link to this | view in chronology ]

  • icon
    sbauer (profile), Mar 5th, 2011 @ 2:18am

    Invalid Patent Markings?

    Who looks at patent markings on products? Ordinary consumers certainly wouldn't care. So, if you were planning to manufacture and distribute a product copied from an existing product by someone else, you would never assume that any patent marking on the product or its packaging was adequate in defining the extent of protection -- you would instinctively look up the patent number and read it. A half an hour of reading through a patent -- its diagrams and claims -- would help you to determine whether there might be interference or infringement as a result of trying to bring your own version of the product to the marketplace. As a manufacturer, I can't imagine anyone not checking out the patent claims on a competing product.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), Mar 5th, 2011 @ 8:58am


    I don't see why this would be unconstitutional. The law needs a revision but I think that citizens should be allowed to force government action on certain issues since they obviously tend to favor acting only on the behalf of a large company.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, Mar 5th, 2011 @ 2:36pm

      Re: Unconstitutional?

      That's just it. In effect, it's only illegal if the government comes after you and the government hardly ever goes after big corporation with multitudes of money to defend themselves and with tons of campaign contribution cash. So who do they end up going after? Poor people, those who can't defend themselves and who don't have cargoes of influential campaign contribution cash.

      reply to this | link to this | view in chronology ]

  • icon
    leichter (profile), Mar 6th, 2011 @ 4:21am

    Federal False Claims Act?

    The Federal False Claims Act - allowing anyone to file a suit "on behalf of the Federal Government" against a Federal contractor for frauds against the government, and then share in any award - has been on the books since 1863 and has been used and upheld through this day. It was actually broadened in 1986 and 2009. So there's by no means an absolute bar to Congress's ability to allow private citizens to act when the government itself has failed to.

    How that will play out in this case - exactly where a court will draw the lines on what Congress can and cannot delegate - I have no clue. But it's certainly not obvious that Congress can't allow anyone to help enforce the Patent Marking restrictions.

                                                            -- Jerry

    reply to this | link to this | view in chronology ]

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