Patent Law | Expert Legal Commentary
March 4, 2010
Forest Group v. Bon Tool: Upping the Incentives for False Marking Claims
The Forest Group, Inc. v. Bon Tool Co.
By
Jeffrey J. Zuber of Zuber & Taillieu and Yuri Mikulka
The Federal Circuit has determined that the maximum fine for violation of the federal false marking statute should be applied on a per article basis, rather than the “per decision” basis applied by a majority of district courts in the past. In The Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009), the Federal Circuit explicitly overruled one such district court interpretation, holding that only a “per article” application of the penalty would give the false marking statute its intended teeth and encourage private enforcement of the statute. While the decision does provide strong disincentives to false marking, it also opens the door to “marking trolls” – opportunistic plaintiffs looking to make money off false marking claims.
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About the Author
Jeffrey J. Zuber is a Partner of Zuber & Taillieu, focusing on intellectual property litigation and arbitration.
Image Credit: ©iStockphoto.com/saluha
