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

I’m quoted in this report by Sheri Qualters in the National Law Journal:

The false-marking statute “tempts people to become roving bounty hunters filing suits which at least the targets often see as shakedowns for money,” Olson said.

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.

One Comment

  • There are only two reasons why a company will be sued for false marking on the basis of expired patents: (1) either they intentionally falsely marked their product for purposes of deceiving the public or (2) a registered patent attorney whose responsibility it was to advise his client of the approach of the patent’s expiration and the need to proactively plan for the cessation of product marking on the expiration date committed malpractice by failing to so act.

    We need a qui tam statute that allows any person to sue such malpracticing patent attorneys and split the recovery with their clients when those clients are just too blind to see who is responsible for their legal woes.