That would be illegal. You really should try to read up on patent law before commenting so much on it.
Yes, I should have. In fact it was in that same article I linked earlier:
A relatively recent district court case, however, appears to have broadened that definition by holding that once a patent has expired, a product covered by that patent is an “unpatented article” under section 292(a). Pequignot v. Solo Cup Co., 540 F. Supp. 2d 649, 653 (E.D. Va. 2008), appeal pending, No. 09-1547 (Fed. Cir.). If that decision is affirmed on appeal, a marking that states “This product is protected under U.S. Patent X,” where X has expired, would violate section 292(a) if the requisite intent to deceive the public is proven.
I did post in haste, however, the hypothetical is not as stupid as you made it out to be. The decision is fairly recent (Dec 2009) and might be overturned on appeal.
No one is saying that those who mark their products with incorrect or expired patents should not be penalised. It's just it makes more sense that only those who are directly affected by the incorrect marking should claim liability.
An indirect "If you haven't marked the product incorrectly than a competitor would release a product which will result in more competition" argument is as nonsensical as piracy is lost profit argument. Sure, there is an impact on the consumer, but the effect on other manufacturers is far greater.
I find it hard to believe that an expired patent will stop a competitor from releasing a product. They will do more research into it and dig up the actual patent and see whether or not it is applicable or expired. At that point they can sue the manufacturer of the incorrectly marked product, if that is the case. Oh, and they also have to prove intent to deceive.
I see this as an attempt to stamp down on incorrect patent marking trolling. This will not and should not limit liability for those that fraudulently mark products with incorrect/expired patents.
From what I heard (and I don't have any links) the proposed amendments bring the false patent marking lawsuits in line with the trademark violation, where you can only sue if you are directly affected by a false marking - i.e. if you are a competitor.
This makes sense to me as as a consumer I don't really care if the item i am using has false or expired patent numbers. The point of stamping products with a patent number is not usually for the benefit of the consumer but more to dissuade a competitor from infringing on your patent. Have a look here:
A patent marking on the product or associated packaging provides constructive notice to potential infringers. That permits a patentee to collect damages for infringement even if the infringer had no actual knowledge of the patent before the patentee filed an infringement suit.
Again, I think this makes sense, as the rush of false patent suits is a cash grab for lawyers that are not in any way affected by "patent lying". I also think that the key element to this is per article fines, and the fact that any Joe Bloe can file a suit will not reduce the amount of suits being filed. All those looking to profit from the affair will just offer their services to direct competitors of affected products.
So, the chilling effect will still be the same, it's just the beneficiaries of the litigation will be those that are mostly affected by false marking.
To touch on Ravicher's point about misleading the customer claiming "a patented formula". I would think that any promotional material associated with the product is distinct from patent marking and goes under misleading advertising regulations which is the domain of the FCC.
Another thing to think about. If the patent for a dog formula expires and you remove the patent number from the packaging, can you still claim that it's a patented formula? After all, the formula was patented at some time.
This reminds me of "The Case of the Stolen Smell" (http://en.wikipedia.org/wiki/%C5%8Coka_Tadasuke). I really feel for the guy, but I kind of agree that the lawsuit is without much merit.
The movie is undoubtedly based on this guy. That much is obvious. He should get someone to write a book for him and promote it on the back of the movie. The studios will clearly object but in doing so they will have to admit to using him as an inspiration for the story.
The whole ruling is quite a read. This blog ( http://robertcorr.com/2010/02/afact-v-iinet/ ) has a few tasty excerpts of the judge completely slamming AFACT council behaviour and assertions in court. This is my favourite bit:
As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft.
It's really good to see a judge that doesn't take entertainment lobby bullshit at its face value.
The court even awarded ISP's legal costs to be paid by the applicants, that's pretty massive. From memory iiNet spent in the vicinity of AU$4M for their defence. I expect some hardcore lobbying for the three strikes law from now on.
Funny this should come up. Last week I've heard the story about Google(rather distastefully) cancelling an adsense campaign for a linux distro that could possibly be seen as a competitor to ChromeOS. The story has been unreported at large, but i think it deserves more attention.