"America Invents Act and the Patent Marking Statute"

As part of the enactment of the Leahy-Smith America Invents Act ("the Act"), the false marking statute (35 U.S.C. ยง292) was substantially revised.  The amendments to the false marking statute relate to: (1) which parties can bring a false marking lawsuit and the amount of damages that can be received in connection therewith; and (2) a party's culpability for marking a product with an expired patent number.  Additionally, the general patent marking statute (35 USC 287(a)) was amended to allow patentees to virtually mark their patented inventions without actually placing a physical patent number on each patented product.

This Stroock Special Bulletin provides an overview of these amendments, which apply to any action pending on or after September 16, 2011, regardless of when the action was filed, or when the alleged false marking took place.