Comments on: An unconstitutional patent false-marking statute

By: I Hate Lawyers

I Hate Lawyers — Sun, 13 Mar 2011 01:25:05 +0000

edit: People “like you” out of business.

By: I Hate Lawyers

I Hate Lawyers — Sun, 13 Mar 2011 01:23:52 +0000

I-Patty –
Your post is idiotic.
I don’t know ANY consumers who go shopping and look at patent numbers. That makes no logical sense whatsoever.

The only people interested in patent markings are the COMPETITORS who want to offer similar products.

You sound like a lawyer who has filed a bunch of these bogus cases. Hopefully Congress will act soon to put people (“People” used very generously here) out of business.

By: ipatty-pa

ipatty-pa — Mon, 07 Mar 2011 22:49:04 +0000

With rights come responsibilities. Just because a company had a patent in the past doesn’t give the company an unfettered right to continue exploiting the patent forever. I don’t understand the logic of trying to project these companies as poor innocent victims. These companies have enough resources to file and obtain a patent but don’t have resources to check once in a while (when they order new packaging, for example) to check if the patents marked therein are still valid. Continue using an expired patent is an attempt to unlawfully extending their monopoly. Someone noted that since the patent database is online, 35 USC 292 is pointless. Why should a consumer has a burden of checking whether the patent is no longer valid. If I am in a store, am I suppose to run back home to check whether the patent numbers are valid? I generally tend to buy patented product thinking that the product includes a functionality no other product in the market can have. But, this is not true if the patent has expired. In that case, other products may have the same technology. But I will end up buying the false marked product (and pay more money in the process).

Also, it is not just falsely marked number. A company may also mark a product with a patent which does not cover the features of the product. How would a member of public know if the patent claims really cover the product features.

Most of these companies are billion dollar companies and pays their executives $100s millions in bonus. Then why can’t they hire a part time employee (to the very least) to check patent markings when new packaging is ordered. If they can’t take this responsibility then they shouldn’t be obtaining patents. No one can force them to obtain patents.

So please stop being a wuss. If you really care about state of law, look into criminal statutes that send people to prison for years even for minor offenses and show your pitty there.

By: “Constitutional attacks on patent false-marking law gain traction”

“Constitutional attacks on patent false-marking law gain traction” — Thu, 03 Mar 2011 11:55:43 +0000

[…] Last month, in a case called Unique Product Solutions v. Hy-Grade Valve Inc., a different federal court (in the Northern District of Ohio) found the statute unconstitutional on the grounds that it violates the Constitution’s “Take Care” clause, the same argument I and the Cato Institute advance in our recent amicus brief. […]

By: VMS

VMS — Wed, 02 Mar 2011 23:58:40 +0000

@ Mark “If that’s the case, then the only way to avoid suit is to not put patent numbers on things at all!”

Under 35 USC 287, a patentee cannot sucessfully sue for infringement unless the infringer was on notice of the patent, and marking the product is the classic form of notice and authorized by the statute.

By: robert

robert — Tue, 01 Mar 2011 21:44:56 +0000

In fact, Mark, that’s now the policy of a client of mine who used to put patent information in the splash screen of software applications.

By: Mark Biggar

Mark Biggar — Tue, 01 Mar 2011 21:32:17 +0000

In any case for expired patents there should be some leeway (say a year) to let the production pipeline to drain out. Does this law make any provision of items manufactured before the patent expires, otherwise every item with a patent number on it is eligible to be sued over the instant a patent expires. If that’s the case, then the only way to avoid suit is to not put patent numbers on things at all!

By: robert

robert — Tue, 01 Mar 2011 20:31:30 +0000

It strikes me as odd/unfair that there’s no difference between a completely fabricated lie about a patent, and a company accurately giving the patent number of an expired patent that used to apply to the product or device.

I don’t see how a reference to an expired patent number in any way misrepresents the product. You would look up the patent and see when it was granted, etc. The information, in fact, would help you if you wanted to invent an improvement or modification to the device.

A company that claims a bogus patent on a product to add credibility or to discourage competition is a different case. But most of these lawsuits we hear about are for the former, expired patent, scenario. Mostly because those companies have deeper pockets.

By: VMS

VMS — Tue, 01 Mar 2011 13:11:01 +0000

There is something highly inequitable about the false marking statutes, but it seems to me that they are constitutional under Walter’s argument. What may not be constitutional is the punitive nature of the statute under the 8th Amendment when used for merely expired patent marking. (i.e. someone never reworked the molds to remove the number).

The beef, however, is probably with Congress rather than the courts. In this day in age, with the status of all patents on-line at http://www.uspto.gov/ , the statute has outlived its usefulness. No longer does one have to hire someone to go down to Washington or a Patent Depository Library to research whether a number stamped on a product is a patent still in force, but rather they can determine that themselves, in under a minute, should they decide to make a product from an expired patent. “False marking” with an expired patent number no longer gives a person an unfair competitive advantage.

On the other hand, for true fraud, where someone uses another’s patent number on a product, I have no problem with the punitive nature of the statute when the true owner of the patent or the actual innocent buyer of the offending product is suing, but those cases are few and far between.