McAfee & Taft intellectual property attorney Ryan Lobato was featured in The Oklahoman discussing a recent federal appeals court decision that substantially increases the penalties for companies that incorrectly label their patented products, also known as "false marking." Lobato previously wrote about this issue for the October 2010 edition of the McAfee & Taft TIPSHEET intellectual property newsletter.
Lobato explained that "patent owners typically place patent numbers on products to provide constructive notice of patent protection" especially since "they generally cannot recover pre-suit damages for patent infringement unless the accused infringer has been given notice of the patent." False marking occurs when the patent numbers placed on the product are expired, invalid or inapplicable.
"Historically, the false marking statute was interpreted to impose a fine of $500 for each large-scale production run of falsely marked articles. Thus, if 10,000 disposable pens were falsely marked with the patent number of an expired patent, the fine may have been $500 at most," Lobato told The Oklahoman. "In late 2009, the Federal Circuit in Bon Tool reinterpreted the statute to assess the fine on a per-article basis. Consequently, the new fine for falsely marking 10,000 disposable pens may be as high as $5 million."
You can read the entire article here and read Lobato's original newsletter article here.