For hundreds of years, patent owners have “marked”—i.e., put their patent numbers on—their products for a variety of legal and competitive reasons. But The Wall Street Journal just reported (as IPI did a month ago in “Out of Balance: The False Patent Marking Landscape Post-Bon Tool and Solo Cup”) that the court ruling in Bon Tool resulted in costly and unnecessary false patent-marking litigation that frustrates the constitutional goal of promoting "the progress of . . . useful arts."
What changed? The court in Bon Tool allowed that the penalty for false marking be applied per item sold, not just one penalty per infraction. So now if 10,000 of the same falsely marked items were sold, such as bottles of medicine, the penalty would be applied 10,000 times rather than once.
This ruling dramatically changed the economic calculation related to bringing legal action, thus encouraging plaintiffs who have suffered no real injury but are merely looking for a windfall.
The article further relates that those bringing the lawsuits (almost all plaintiffs or those close to them, such as their wives) fancy themselves as consumer advocates “helping to protect legitimate inventors from giant corporations who are pretending to have patents to keep competitors from stepping on their turf. “
Perhaps predictably, these “consumer advocates” were nowhere to be found before the legal windfall became possible. And while it is obviously inappropriate to falsely mark a product if in fact it is not covered by a patent, or if the patent has expired, a real consumer advocate would have been there when the “penalty” was simply a court order to the offending company to remove its false mark.
Legislation making clear that the law was understood correctly before Bon Tool seems like the only reasonable approach. Let’s hope the fix comes before opportunistic trial lawyers greedily drain even more resources for themselves from our already weakened economy.