The Federal Circuit blew the lid off a plaintiff's false patent marking suit in the most recent patent case1 interpreting the patent false marking statute. Solo Cup ("Solo") recently found itself the target of a potential $10.8 trillion judgment for continuing to mark approximately 21 billion coffee lids for years after knowing the lids were no longer covered by any existing patents.2 The Federal Circuit, however, issued Solo a reprieve by finding that Solo's actions did not constitute "false marking" as Solo did not have the requisite intent to deceive.3 Paramount to the Court's decision was that Solo relied on their patent counsel's advice in developing and following a policy for patent marking that also satisfied Solo's business needs. As such, patent owners that wrestle with the decision of how to mark their patented product(s) should contact patent counsel in order to develop a prudent patent marking policy. Failure to do so could be costly, as damages can be assessed at up to $500 per article falsely marked.
October 25, 2010
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