August 2011

Looking Ahead

On July 7, 2011, the Federal Circuit heard oral argument in FLFMC, LLC v. Wham-O, Inc., No. 11-1067, in which the parties and the U.S. government addressed the constitutionality and standing requirements of the False Marking statute, 35 U.S.C. § 292.  Before the District Court of the Western District of Pennsylvania, defendant Wham-O, Inc. (“Wham-O”) sought to dismiss FLFMC, LLC’s complaint based on several grounds, including the lack of standing and alleged unconstitutionality of § 292(b) under the “Take Care” and “Appointments” Clauses of the U.S. Constitution.  The current patent reform legislation pending before Congress amends § 292(b) and, in particular, the language upon which Wham-O’s challenges are based.  Thus, if Congress acts before the Federal Circuit issues a decision, this appeal would be rendered moot.