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False Marking

False patent marking is placing the words “Patent Pending” (or similar) or a patent number on a product when the product is not pending or covered by a patent. In the former case, this usually occurs when a patent application has been abandoned and thus is not longer pending. In the latter case, it typically happens when a patent expires (either for lack of payment of maintenance fees or because the patent has reached its full term).

Marking of a device is a double edged sword, since without marking, damages for infringement are limited (or may be non-existent), while leaving the marking on a product after expiration can lead to a Qui Tam lawsuit for false patent marking. In a Qui Tam lawsuit, anyone can bring legal action on behalf of the U.S. government (it is their authority to provide patent rights that is being damaged) and split the award that the court determines. Up to $500.00 may be awarded for each instance of false patent marking. Until December 2009, this was typically enforced as $500.00 for each action to cause the marking of a group of objects, so the damage awards were minimal. However, after Forest v. Bon Tool in the Federal Circuit in December 2009, the award is per item. Notwithstanding, this may not lead to any windfall, since a court may award only fractions of a penny for damages out of the $500.00 (which is a maximum amount, not a requirement).

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For more information on intellectual property, please visit Patent, Trademark, Copyright Information.

The content of this article is not intended to be, and does not constitute, legal advice and does not create attorney-client privilege. Consult the attorney of your choice before embarking on any legal matter or any document preparation/filing.

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Dr. Thomas R. (Terry) Williamson III is a Patent Attorney practicing in Atlanta, Georgia.

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Williamson Intellectual Property Law, LLC
1870 The Exchange, Suite 100
Atlanta, GA 30339
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Williamson Intellectual Property Law, LLC
1870 The Exchange, Suite 100 - Atlanta, Georgia 30339