Defensive Strategies in False Marking Suits After Stauffer and Pequignot

Many companies inadvertently mark their products with expired patents. Because a plaintiff may establish intent to deceive the public by presumption, these companies may be sued and subject to thousands of dollars in legal fees and penalties. Indeed, since December 2009, there have been more than 350 false marking suits, compared to the ten years prior to 2010 during which there had only been 42 such suits. The U.S. Court of Appeals for the Federal Circuit's December 2009 decision in Forest Group, Inc. v. Bon Tool Company dramatically changed the landscape by holding that the penalty for false marking is assessed on each falsely marked product, rather than each decision to falsely mark a product. As the Federal Circuit subsequently noted in Pequignot v. Solo Cup Company, the result of this holding is that companies that falsely mark products with patent numbers, however inadvertently, are potentially subject to billions of dollars in damages.

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