On June 24, Schnader attorney Michael Carlson participated in a panel discussion on false marking sponsored by the San Francisco Intellectual Property Law Association.
Although U.S. patent law has long provided for a fine of up to $500 if a person intentionally mismarks an article with a patent number, that provision received little attention until the Federal Circuit’s December 2009 decision in Forest Group, Inc. v. Bon Tool Company, 590 F.3d 1295 (Fed. Cir. 2009). In Bon Tool, the Federal Circuit dramatically changed the law for imposing fines under 35 U.S.C. § 292 by replacing the former "per occurrence" approach, which had considered mismarking of multiple articles or an entire product line as a single statutory violation, with a "per article" approach, under which parties can be fined up to $500 for each mismarked product.
This new approach has led to a flurry of "false marking" cases. Mr. Carlson joined a panel of other experienced intellectual property litigators who discussed the implications of the Bon Tool decision, the litigation it has spawned, and what the future holds for this area of the law.
Visit the San Francisco Intellectual Property Law Association website for more information.