July 2010

Spotlight Info

Last month, in Pequignot v. Solo Cup Co., No. 09-1547 (Fed. Cir. June 10, 2010), the Federal Circuit affirmed the decision of the Eastern District of Virginia that Solo Cup Company (“Solo”) was not liable for false marking because it did not exhibit the requisite intent to falsely mark its products.  While the Court acknowledged that articles marked with expired patent numbers are, in fact, falsely marked, it concluded that the false marking statute also requires that the marker act “for the purpose of deceiving the public.”  Thus, false marking, combined with knowledge of the falsity, merely creates a rebuttable presumption of intent to deceive.  In this case, the Federal Circuit held that Solo had rebutted the presumption of intent to deceive by seeking advice of counsel, instituting a policy of replacing worn “marked” cup molds with new “unmarked” molds, and incorporating language that its cups “may be covered” by particular patents.  See the full summary in this issue.