Avoiding a Second Troll Under the Bridge: A Frank Discussion on the Recent Onslaught of False Marking Cases

To view the recorded webinar, or download a copy of the slides, please click here. Program run time is approximately 60 minutes.

For no apparent reason whatsoever, you may soon receive a complaint in a federal lawsuit from a complete stranger. In the last few weeks alone, dozens of cases have been filed by a new breed of opportunistic plaintiff—the “marking troll”—under 35 U.S.C. § 292 (the “false marking” statute). This statute prohibits improper marking of an article with a patent number, or with the words “patent,” “patent pending,” or any such variation for the purpose of deceiving the public. The statute levels a penalty of up to $500 for false marking and creates a private right of action (i.e., a qui tam action) enabling any individual to initiate a lawsuit in federal court to seek the penalty (to be shared 50-50 with the federal government). Most notably, in The Forest Group, Inc. v. Bon Tool Company, the Federal Circuit recently determined that the penalty for false marking applies on a per article basis, not on a per decision basis. The Forest Group opinion creates the potential for enormous liability, and the anticipated fallout from this opinion—a deluge of cases filed by “marking trolls”—has already begun.

This webinar will examine the current state of the law for false marking cases under 35 U.S.C. § 292. It will discuss the interplay between false marking and the duty to mark, the types of false marking claims that are currently “in vogue,” the intent to deceive aspect to these cases, and potential exposure that companies may face.

Time:

2:00 - 2:45 p.m. EST

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There is no charge to attend this program. Please register by March 9, 2010. Webinar access and dial-in information will be sent upon registration.