False Marking False Marking False Marking False Marking all at up to $500 per offense

pic-86.jpgSimonian v. Blistex, Ciba, Pfizer, 3M, Edgecraft, Darex, Cisco, Bunn-O-Matic, Oreck, Novartis, Merck, etc. (N.D. Ill. 2010)

Thomas Simonian is a self-described “individual living in Geneva, Illinois.” In a series of at least 27 complaints filed in the past few days, Simonian has raised the stakes of the Federal Circuit’s false marking jurisprudence. Most of the complaints assert false marking claims based on the continued marking of products with now-expired patents. However, a few cases focus on marked products that are allegedly not covered by the patent rights. For instance, in Simonian v. 3M, the plaintiff asserts that the 3M patent requires a “hook portion” but that the marked 3M “Command Strips” do not include that feature.

The cases were filed by the Chicago-based law firm of Vanek, Vickers & Masini.

  • Simonian Cases: Simonian v. Blistex, Inc.(Blistex); Simonian v. Ciba Vision Corporation (Clear Care); Simonian v. Hunter Fan Company (thermostat); Simonian v. Mead Westvaco Corporation (envelopes); Simonian v. Fiskars Brands, Inc. (Fiskars scissors); Simonian v. Pfizer, Inc. (Pfizer); Simonian v. Pella Corporation (Pella windows); Simonian v. 3M Company; Simonian v. The Quigley Corporation; Simonian v. Edgecraft, Corp.; Simonian v. Tru Fire Corporation; Simonian v. Darex, LLC; Simonian v. Cisco Systems, Inc.; Simonian v. Novartis Pharmaceuticals Corp.; Simonian v. Bunn-O-Matic Corporation; Simonian v. Kimberly-Clark Corporation et al; Simonian v. Merial L.L.C. et al; Simonian v. Weber-Stephen Products Co.; Simonian v. Oreck Corporation et al; Simonian v. BP Lubricants USA, Inc.; Simonian v. Irwin Industrial Tool Company; Simonian v. Novartis Animal Health US, Inc.; Simonian v. Novartis Consumer Health, Inc.; Simonian v. Monster Cable Products, Inc.; Simonian v. Global Instruments, Ltd. et al (Riddex); Simonian v. Merck & Co., Inc. et al; Simonian v. Advanced Vision Research, Inc.
  • Other Recent False Marking Cases: O’Neill v. Roche Diagnostics Corporation; Akbar v. Proctor & Gamble Co.; Josephs v. Federal-Mogul Corporation; Josephs v. Sigma-Aldrich Corporation; Seirus Innovative Accessories, Inc. v. Cabela’s, Inc.; Yarbough v. S.C. Johnson & Son, Inc. et al.

149 thoughts on “False Marking False Marking False Marking False Marking all at up to $500 per offense

  1. 149

    Has anyone found the case law regarding an inventory exception for patent marking? I’ve tried using the search field on this site as suggested above and have spent an hour on Lexis but thus far not found anything at all.

  2. 148

    “WARNING — this post is not for butwhole retentive attorneys”

    Best comment intro EVAR. JAOI, I like your style.

  3. 147

    WARNING — this post is not for butwhole retentive attorneys — WARNING.
    And I do not want to hear any complaints!

    How Fights Start —

    My wife sat down on the sofa next to me as I was flipping channels. She asked, “What’s on TV?”
    I said, “Dust.”
    And then the fight started….

    ******************************************
    My wife and I were watching “Who Wants To Be A Millionaire” while we were in bed. I turned to her and said, “Do you want to have nucky?”
    “No,” she answered.
    I then said, “Is that your final answer?”
    She didn’t even look at me this time, simply saying, “Yes.”
    So I said, “Then I’d like to phone a friend.”
    And then the fight started….

    ******************************************
    Saturday morning I got up early, quietly dressed, made my lunch, and slipped quietly into the garage. I hooked up the boat to the van, and proceeded to back out into a torrential downpour. The wind was blowing at 40 mph, so I pulled back into the garage, turned on the radio, and learned that the weather would be bad all day.
    I went back into the house, quietly undressed, and slipped back into bed. I cuddled up to my wife’s back, now with a different anticipation, and whispered, “The weather out there is terrible.”
    My loving wife of 5 years replied, “Can you believe my styoupid husband is out fishing in that?”
    And that’s how the fight started….

    ******************************************
    I rear-ended a car this morning. So, there we were alongside the road and slowly the other driver got out of his car. You know how sometimes you just get soooo stressed and little things just seem funny? Yeah, well I couldn’t believe it…. He was a DWARF!!! He stormed over to my car, looked up at me, and shouted, “I AM NOT HAPPY!!!”
    So, I looked down at him and said, “Well, then which one are you?”
    And then the fight started….

    *****************************************
    My wife was hinting about what she wanted for our upcoming anniversary. She said, “I want something shiny that goes from 0 to 150 in about 3 seconds.”
    I bought her a bathroom scale.
    And then the fight started….

    ******************************************
    After retiring, I went to the Social Security office to apply for Social Security. The woman behind the counter asked me for my driver’s License to verify my age. I looked in my pockets and realized I had left my wallet at home. I told the woman that I was very sorry, but I would have to go home and come back later.
    The woman said, “Unbutton your shirt.” So I opened my shirt revealing my curly silver hair. She said, “That silver hair on your chest is proof enough for me,” and she processed my Social Security application.
    When I got home, I excitedly told my wife about my experience at the Social Security office.
    She said, “You should have dropped your pants. You might have gotten disability, too.”
    And then the fight started….

    ******************************************
    My wife and I were sitting at a table at my school reunion, and I kept staring at a drunken lady swigging her drink as she sat alone at a nearby table.
    My wife asked, “Do you know her?”
    “Yes,” I sighed, “She’s my old girlfriend. I understand she took to drinking right after we split up those many years ago, and I hear she hasn’t been sober since.”
    “My God!” says my wife, “who would think a person could go on celebrating that long?”
    And then the fight started….

    ******************************************
    I took my wife to a restaurant. The waiter, for some reason took my order first. “I’ll have the steak, medium rare, please.”
    He said, “Aren’t you worried about the mad cow?”
    “Nah, she can order for herself.”
    And then the fight started….

    ******************************************
    A woman was standing nude, looking in the bedroom mirror. She was not happy with what she saw and said to her husband, “I feel horrible; I look old, fat and ugly. I really need you to pay me a compliment.”
    The husband replied, “Your eyesight’s darn near perfect.”
    And then the fight started

  4. 146

    Dear Consumer product IP lawyer,

    Marking requirements have always been a sticky wicket.

    Your advice is an excellent suggestion.

  5. 145

    Well, my advice to one of my clients.

    Mark the patent numbers as follows: U.S. Patent No. 7,xxx,xxx (expiring yy/yy/yyyy).

    This assumes the product being marked has sufficient real estate that can be devoted to this.

  6. 144

    Also, the related argument that “it may be willful and it may be infringement, but neener neener no damages shall be recovered by you”.

    Better than that – “Neener neener, TRIPLE no damages shall be recovered by you!”

  7. 143

    “Is this copying willful infringement? In a sense, it is not, because it is authorized by the statute. That is a argument that somebody is going to make someday.”

    Also, the related argument that “it may be willful and it may be infringement, but neener neener no damages shall be recovered by you”.

  8. 142

    NAL, true, the PO has the option of giving actual notice, but the infringer has a pass granted by the marking statute to “willfully infringe with impunity until notified or sued. In essence, one can copy an unmarked product and be assured that he is not going to be liable in damages for a patent on that product until actually notified.

    So, when asked for an opinion on a patent, every good practitioner should ask whether the PO is selling a product covered by the patent and whether it is marked. If the answer is that the product is covered and it is not marked, there are no damages regardless of whether the patent is infringed.

    Is this copying willful infringement? In a sense, it is not, because it is authorized by the statute. That is a argument that somebody is going to make someday.

  9. 141

    I understand your hang-up, but its about constructive notice, not actually having notice. Counter-intuitive, I know.

    I know the difference between constructive notice and actual notice. That’s why I didn’t say anything like “has never seen the product”. The notice of the NPE’s patent via the patent office is just as constructive.

    I’m questioning the policy that links constructive notice of a *patent* to a presumed awareness of a *product*. Why should a single embodiment give (or defeat) constructive notice as to the entire scope of a patent?

    What if you assert apparatus claims that don’t cover your unmarked product, in a patent that also has claims covering your product? Why should an unasserted claim that doesn’t invalidate the patent affect your entitlement to damages?

  10. 140

    IANAE,
    I understand your hang-up, but its about constructive notice, not actually having notice. Counter-intuitive, I know.

    Patent marking law doesn’t make all that much sense…

  11. 139

    NAL: “The non-substantive, handwaiving, hoorah-getting-pummeled sock puppet chorus is merely fluff.”

    When you’re handwaiving, does that mean you relinquish your hands?

  12. 138

    IANAE: And if he’s going to infringe your patent without copying your product, what’s the point of any of this?

    MM: Is this an existential question?

    No, it’s a serious question. The premise is that the infringer must be on notice to be liable for damages, right? Well, why does a marked product effect notice for anything other than the exact product? Suppose you make and mark product A. I make product B which isn’t really that similar to product A, and is not an attempt to copy product A. Some small component of product B happens to infringe the patent you marked on product A.

    What did I really have notice of? That your patent exists generally? That making product A infringes a patent? That I should go look up the patent to make sure my different product B also does not infringe? That I should check all my market competitors’ products for marked patents before selling anything?

    I don’t think a marking gives notice of anything more than the marker’s belief that the actual marked product would infringe his patent. If at that point you still have to look up the patent to see whether your product infringes it, the marking gives no more notice than the published patent itself, and people should be paying damages for all past infringements.

  13. 137

    Mr. Hobbes, if your view is different, or in addition to the cites provided, please join in with your feedback.

    Noise, I am flattered once more that you think of me. However, I’m not sure what the question is.

  14. 136

    interestingly the claims of the 581 patent that Simonian is mentioning in the case against 3M do not call for a hook :-) oops…

  15. 134

    The stories of my demise have been more than slightly exagerated.

    Unlike Malcolm, I can share the playground.

    I will review the case law cited and augment my learning – as Ned can attest, not all case law cited holds for what it is cited for.

    I LOVE the feedback with substantive material. Such does allow me to grow. The non-substantive, handwaiving, hoorah-getting-pummeled sock puppet chorus is merely fluff.

    Mr. Hobbes, if your view is different, or in addition to the cites provided, please join in with your feedback.

    As to the Undertaker – get a grip – the mark IS the status is an UNtouched element of my maxim.

    Or do you have any legal thoughts on the matter?

    …thought not.

  16. 132

    tags on,tags OFF.
    tags On, tags OFF.
    wax on,wax OFF.
    Wax On, WAX off.

    Heh, heh, Butthead, he said Whacks….

  17. 131

    I like this thread. NAL is getting pummeled from all directions and Mooney is seeing how many different HTML tags he can leave open. Quite entertaining!

  18. 130

    Let’s try again

    IANAE: why should selling unmarked product (marking is optional, remember?) in an attempt to monetize your invention place your patent in the public domain more than not practicing the patent at all?

    I don’t think this is an accurate description of the dynamic. The marking statute (287(a)) is designed to encourage marking of a patented product, in part, so when the public sees the product, the public knows that it’s patented. Unless there’s a reason to suspect false or expired marking, members of the public do not have to waste their time and money attemping to sell copies.

    If there’s no patented product to see, it’s a moot issue.

    If someone’s going to copy your product, shouldn’t the law make it reasonable for him to look into the legalities of that course of action?

    That’s what the marking statute already does: the first place to “look into the legalities” is on the surface of the article itself.

    Our current system of patent laws also makes it reasonable to look into the legalities of manufacturing any article, marked or unmarked, unless the product is known to be covered by an expired patent, or you already own the patent. Even then, you have to worry about method claims.

    And if he’s going to infringe your patent without copying your product, what’s the point of any of this?

    Is this an existential question?

  19. 129

    IANAE: If you see a product in the US without a patent number on it, go ahead and rip it off. No charge.

    That is bad advice. Any money invested in special machinery/labor to produce the product may be wasted if the product turns out to be patented. Not to mention the time, which can never be regained.

    Is that really good policy, considering that all patents are easily available to the public?

    I think it’s still good policy. It can take a lot of time and a lot of money to determine whether a product is patented. There needs to be an incentive or requirement on manufacturers of patented goods to mark their products so that when the public sees an article, they can determine quickly if it’s patented.

    I also think that it should be easier for “members of the public” to discover the exact date of expiration of a patent.

    why should selling unmarked product (marking is optional, remember?) in an attempt to monetize your invention place your patent in the public domain more than not practicing the patent at all?

    I don’t think this is an accurate description of the dynamic. The marking statute (287(a)) is designed to encourage marking of a patented product, in part, so when the public sees the product, the public knows that it’s patented. Unless there’s a reason to suspect false or expired marking, members of the public do not have to waste their time and money attemping to sell copies.

    If there’s no patented product to see, it’s a moot issue.

    If someone’s going to copy your product, shouldn’t the law make it reasonable for him to look into the legalities of that course of action?

    The law now makes it reasonable to look into the legalities of manufacturing any product unless the product is known to be covered by an expired patent, or you already own the patent. Even then, you have to worry about method claims.

    And if he’s going to infringe your patent without copying your product, what’s the point of any of this?

    Is this an existential question?

  20. 128

    Now that we’ve established that Paul Morgan was right (last week!) about the marking law penalizing non-NPPs (PPs? NNPPs?), can we discuss that issue?

    The only reason I can think of is to place unmarked products in the public domain. If you see a product in the US without a patent number on it, go ahead and rip it off. No charge. Is that really good policy, considering that all patents are easily available to the public? I can see how it might have been justified when patents were only available physically at the patent office and there was no electronic way to search them, but can’t we put this old-timey silliness behind us?

    Also, why should selling unmarked product (marking is optional, remember?) in an attempt to monetize your invention place your patent in the public domain more than not practicing the patent at all? If someone’s going to copy your product, shouldn’t the law make it reasonable for him to look into the legalities of that course of action? And if he’s going to infringe your patent without copying your product, what’s the point of any of this?

  21. 127

    I’m quite curious to see how it turns out.

    [passes popcorn]

    Let me know if it needs more butter.

  22. 126

    Ah, kind of reminds me of the infamous dissection of the 112, first paragraph. That, too, was a fabulous waste of time.

    This exchange is even more fascinating, if you ask me. I’m quite curious to see how it turns out.

  23. 125

    And it helps to research the caselaw. No lawyer worth his salt reads the statute in isolation.

    I’m sending you a bill for this banter.

  24. 124

    NAL your reading comprehension fails you – note the conjunctive subject – there are two groups being discussed -and the practice options given here, after the conjunctive “and” are only descriptive of the second group.

    Ah, kind of reminds me of the infamous dissection of the 112, first paragraph. That, too, was a fabulous waste of time.

    The thing about “reading comprehension,” NAL, is that it’s important to remember the context. 287(a) is all about marking patented articles. You can count commas until your blue in the face but that fact isn’t going to change. And it’s that fact that ultimately blows your construction to pieces because if there isn’t a patented article to be marked, 287(a) is simply irrelevant.

  25. 123

    … your reading comprehension fails you – note the conjunctive subject – there are two groups being discussed -and the practice options given here, after the conjunctive “and” are only descriptive of the second group. The NPE is the patentee – and merely falls to the first part of the conjunctive – they NEED NOT do the items listed –as those describe requirements for the others, the second half of the conjunctive subject.

    Noise, I now understand completely how you get to your position. You’re right to the extent that Congress did a horrible job of drafting this particular statute. In any event, the courts have effectively held that Congress meant to say “patentees making, offering for sale, or selling any patented article within the United States, and persons making, offering for sale, or selling any patented article for or under them, within the United States…”

    Once more, Section 287(b) is unrelated to the marking/notice provisions of Section 287(a), and is not of much use in interpreting the earlier subsection. It’s a completely distinct notice provision that applies only to the fairly rare 271(g) infringement situation. You’re right that it is also about “notice.” However, you might note that 287(c), which spells out yet another limitation of the patent right, has nothing to do with “notice” at all.

  26. 121

    NAL Except – that’s exactly what I said.

    Respectfully, you did not say “exactly” what I said. And respectfully, it’s your inability to express yourself coherently and your tendency to misquote and mischaracterize others (e.g., “that’s exactly what I said”) which has earned you those red welts on your hairy behind.

    287(a) applies to patentees who are making patented articles and to persons who are making patented articles for or under patentees. It does not apply to anybody who is not making a patented article. Not only is this the best and most sensible reading of the statute, but it is the law.

  27. 120

    Just because you are an NPP, does not mean that 35 USC 287 does notapply to you.

    Never give up the good fight, NAL.

  28. 119

    …if it’s not deliberate, it’s really just sad. Even if it is deliberate, it’s still kinda sad.

  29. 118

    Arguably, assertion of both method and apparatus claims from one patent, where after litigation only the method claims are found infringed may, even in the absence of marking, lead to pre-suit damages.

    Equally arguably, those damages for the method claims shouldn’t depend on whether the apparatus claims are infringed. The law only excludes damages with respect to a product, leaving the process liable in any event.

  30. 117

    Anyone else – I will look at that – however the distinction is NPP (who may license others – the second half of the conjunctive) and practicing entities.

    Just because you are an NPP, does not mean that 35 USC 287 does notapply to you.

  31. 116

    Crown Packaging is an interesting case Mooney for its “revitalization” of Hanson after the American Medical case. Arguably, assertion of both method and apparatus claims from one patent, where after litigation only the method claims are found infringed may, even in the absence of marking, lead to pre-suit damages.

  32. 115

    malcolm,

    Another attempt, another failure. The word “may” indicates only that it is not illegal to fail to mark a patented product that you are making or selling in the manner described by the statute (the alternative term would be “shall” or “must”). A practicing entity won’t collect damages if it fails to mark its article as described UNLESS the practicing entity provides an alternative form of notice to the infringer.

    Except – that’s exactly what I said. Your error is using practicing entity (also not there – see above). You have no basis for excluding NPP’s.

    You also supply a note about process – that applies equally to be practicing and NPP’s – such your attempted statement is at best a non sequitur.

    The PS section I supplied deals with inventions that are not processes – and that applies equally to all patentees – note the law does nto say patentees that practice – ALL patentees.

  33. 114

    you should recognize that it fully applies to NPP’s.

    Tell it to the Federal Circuit in Texas Digital.

    “The recovery of damages is not limited where there is no failure to mark, i.e., where the proper patent notice appears on products or where there are no products to mark.”

    Seems pretty straightforward to me. No product to mark equals no failure to mark equals no limit on recovery of damages.

  34. 113

    NAL since patents are a negative right, NPP’s “practice” their invention simply by owning it

    Turn out the lights when you’re finished, okay?

  35. 112

    “Anyone else” beat me to the better case law — well done! I knew I should have spent more than five seconds looking but Crown Packaging seemed to do the job well enough.

  36. 111

    INANE,

    Ironic – I did say “boiled down to” which excuses my use of a different word – you attack, except you yourself also used a word not there – practicing.

    Better yet – using your own word, since patents are a negative right, NPP’s “practice” their invention simply by owning it, and since, you are the master of remedy – and this section falls to remedy for the patentee, you should recognize that it fully applies to NPP’s.

    As to the explicit list, your reading comprehension fails you – note the conjunctive subject – there are two groups being discussed -and the practice options given here, after the conjunctive “and” are only descriptive of the second group. The NPE is the patentee – and merely falls to the first part of the conjunctive – they NEED NOT do the items listed –as those describe requirements for the others, the second half of the conjunctive subject.

    Anyone else – are NPP’s considered patentees? (hint the answer is yes – and is enough for the trigger)

  37. 109

    NAL Patentees, and others may give notice to the public that the same is patented.

    Nice try. As pointed out already, the word “others” is not in 287(a). 287(a) refers to patentees and “persons making, offering for sale, or selling within the United States any patented article for or under [the patentees]”.

    287(a) has no relevance to NPEs because NPEs are, by definition, not selling any articles.

    The primary verb here is give notice, or rather, MAY give notice.

    The fact that “the event of failure so to mark’ and the word MAY are used indicates that this law covers MORE THAN marking alone.

    Another attempt, another failure. The word “may” indicates only that it is not illegal to fail to mark a patented product that you are making or selling in the manner described by the statute (the alternative term would be “shall” or “must”). A practicing entity won’t collect damages if it fails to mark its article as described UNLESS the practicing entity provides an alternative form of notice to the infringer.

    “The law is clear that the notice provisions of § 287 do not apply where the patent is directed to a process or method. Bandag, Inc. v. Gerrard Tire Co., 704 F.2d 1578, 1581 (Fed. Cir. 1983). In Hanson, 718 F.2d 1075 (Fed. Cir. 1983)—we held that 35 U.S.C. § 287(a) did not apply where the patentee only asserted the method claims of a patent which included both method and apparatus claims. Hanson is factually identical to this case, and we are therefore bound by the rule of Hanson.”

    Judge Moore, Crown Packaging v. Rexam Beverage (Fed. Cir. 2009)

    As Dennis noted, under Crown Packaging, “the patentee is free to claim damages back six years under Section 286 even without marking or providing actual notice.”

    If there is no article to be marked, notice is not required to obtain past damages.

  38. 108

    Noise,
    You have plainly not researched this issue. There is no duty to mark when a patent is not being practiced. Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1219 (Fed. Cir. 2002) (citing Wine Ry. Appliance Co. v. Enter. Ry. Equip. Co., 297 U.S. 387, 395-98 (1936) (“Penalty for failure implies opportunity to perform.”)).

  39. 107

    This discussion with Noise Above Law reminds me of The Shawshank Redemption, “How can you be so obtuse? Is it deliberate?”

    NAL, I suggest you check out what happens in real life. Patentees having no product to mark get the full 6 years of past damages.

    This is also the case for owners of method patents, except for a few “sport” cases regarding method patents where the district court decided (for example) that the patentee’s website was integral to his patented method, and therefore was an appropriate tangible object he should have marked.

  40. 106

    Even assuming that there is generally no liability for damages without notice, why is a marked product considered effective notice (or lack thereof a failure to give such notice) for infringement by the making, using or selling of a non-identical product?

    In other words, why are damages over the entire scope of the patent hinged on the marking of a single embodiment? How do we know that marking with respect to the the “patented article” (whatever that means) in 35 USC 287(a) gives notice with respect to the “any product”/”that product” in 35 USC 287(b)(2)?

    Bonus points if you can make out a case for that notice without requiring the infringer to go look up the patent.

  41. 105

    Noise,
    The NPP can’t “fail to mark” because no obligation to mark is triggered per the first part of 287(a).

  42. 104

    P.S.

    You may also consider my reference to 35 U.S.C. 287(b). While I had referenced a different subsection and you had responded that you deemed that only apply to processes, (b)(2) applies to products:
    (2)No remedies for infringement under section 271(g) of this title shall be available with respect to any product in the possession of, or in transit to, the person subject to liability under such section before that person had notice of infringement with respect to that product.

    Here, you can see that the point of the section is not to “mark”, but rather to “notice”. An NPP looking for remedy clearly must satisfy “notice”.

  43. 103

    Patentees, and others may give notice to the public that the same is patented.

    Sorry, where in 35 USC 287 do you see the word “others”? It clearly only applies to patentees practicing the invention and those practicing under them. It’s silent about whether or how NPPs might give notice.

    As an NPE cannot mark, they automatically fall to the “failure so to mark”, and must rely on the exception clause.

    Skydivers may use parachutes. In the event of failure so to use, (bad thing etc.)

    As a non-practicing skydiver, am I subject to the consequence for failure so to use?

    Bonus question: what if it said “shall have the power to give notice”?

  44. 102

    NAL I am heartened that many comments hear are actually in debate of legal matters … the level of discussion for the most part has been uplifting. Those pursing discussions for legal edification should be applauded – those seeking to merely distract should be disparaged.

    What does this have to do with marking?

  45. 101

    Mr Hobbes,

    Can you explain the part of 35 U.S.C. 287(a) that details the exception to the event of failure to so mark?

    This, I believe is key to our differing opinions. Insofar as you think a blanket six years is possible by merely being an NPE, I read this differently. As an NPE cannot mark, they automatically fall to the “failure so to mark”, and must rely on the exception clause.

    I read this as the first paragraph, first sentence can be boiled down to:

    Patentees, and others may give notice to the public that the same is patented.

    Patentees and others – clearly envisions that there will be some that merely hold the patent (NPP’s).

    The primary verb here is give notice, or rather, MAY give notice.

    The fact that “the event of failure so to mark’ and the word MAY are used indicates that this law covers MORE THAN marking alone.

    As I have posted – I believe that you have fixated on the marking portion, and you are missing both the NPP as patentee and the what to do if not marking exception.

    I think that the limitation itself concerns not only marking, but notice (again, marking is an expediant, even preferred subset – but still only a subset).

    I think that NPP is covered by the patentee phrase and is NOT excused, merely by being a NPP. I do not see how you are reading otherwise.

    My mind is open – I am listening.

  46. 100

    “[…] in practice, NPP’s have every right to their property that in certain cases are just as violated as if they were practicing entities […] Your line of thought misses the fact that the rights are indeed above the fray as I mentioned. […]”

    Could you please point out exactly where my line of thought suggested that NPPs rights are not “legitimate”, which is what I believe you intimate.

    “Therein 35 USC287(a) is MORE difficult for the NPP – it has to forego the expediant option.”

    This is a falacy. Filing of an action for infringement shall constitute such notice. QED.

  47. 99

    Finally, when the utility patent term expires, am I no longer allowed to practice my new design?

    You can still practice the design, but (1) you should probably charge $500 more for it, and (2) you should add more twists for the design patent number.

    You’d also be in the unusual position of charging more for an off-patent product than when it was patented.

  48. 98

    So I get a utility patent on a new type of wind intrument.

    Fifteen years later, I make a version of that instrument that is twisted into the shape of the patent number.

    Next I get a design patent on the new design for that new type of wind instrument.

    Finally, when the utility patent term expires, am I no longer allowed to practice my new design?

  49. 96

    Mr. Hobbes – you glossed over this as well.

    Respectfully, Noise, I did not. I explicitly addressed this in the final four sentences of my post. An NPP does not have to provide notice at all.

  50. 95

    “Therein 35 USC287(a) is MORE difficult for the NPP – it has to forego the expediant option.”

    I’ve read through your and Hobbes arguments in this regard.

    Here’s the upshot. The idea that the NPP has to “forego the expedient option” is immaterial.

    The NPP need only file suit and it has all 6 years of past damages available to it. This is what happens in real life.

    The widget manufacturer who fails to mark, only has damages from the date of filing suit or other actual notice. This is what happens in real life.

  51. 94

    “unless actual notice has been given.”

    Mr. Hobbes – you glossed over this as well.

    Do you see how easy it is to focus only on “mark” and lose track of “notice”?

    Again – notice is different than marking – you cannot wipe clear the effect on an NPP – notice is still a requirement (it might help to think of marking as a special subset), rather than say “since marking is not possible, notice is not possible and thus the requirement of notice does not apply, the law becomes (for NPP’s) requirement of notice cannot be acheived through marking.

    Two very different levels of undertaking.

    Therein 35 USC287(a) is MORE difficult for the NPP – it has to forego the expediant option.

  52. 93

    “For NPP’s . . . MUST take some other arduous route to provide “notice” and cannot take the expedient route. If anything, the loss of back damages without actual notice is not given such an expedient route – you have proven the opposite point you desired.”

    NAL, could you please explain this? I am pursuing legal edification. Thx.

  53. 92

    For NPP’s (in deference to Mr. Hobbes’s distinction, which I do like), MUST take some other arduous route to provide “notice” and cannot take the expedient route.

    I think this is precisely the point at which we’re talking past one another, Noise. The second sentence of 35 USC 287(a) makes back damages unavailable for failure to mark, unless actual notice has been given. A NPP cannot fail to mark, as it has nothing to mark. Thus, this limitation on damages (which can be regarded as a partial affirmative defense) simply does not apply to NPP. As a result, the NPP does not have to provide notice at all – this is clearly the least arduous route possible. If you’d like a case citation to back this up, let me know.

  54. 91

    “In other words, infringement of a PE’s patent is intentional, but infringement of a NPE’s patent is strict liability.”

    No, infringement of PE’s patents is not an intentional tort, it is also strict liability. The difference is that under 287(a) there may be no infringement damages for a PE. However, the determination of infringement alone could trigger other damages, e.g. contractual.

    The “positive” vs. “negative” debate is academic and tangential.

  55. 90

    First off, I am heartened that many comments hear are actually in debate of legal matters, rather than the usual litany of diversions and flame baiting (mind you I amnot shy of returning flame – if that’s in doubt).

    So let’s handle the diversions and get them out of the way.

    IANAE – how is your comment even relevant to the topic at hand?

    To your “I keep forgetting that I have to spell everything out for you.” And “Let me know if you need another hint.”

    I reply:
    You keep forgetting to keep my actual words in mind
    So I need another hint. Again what does your comment have in relevance to this issue? It appears that you are intent on attacking me and conflating issues. I thought you were not going to do that.

    My challenges to the system are large scale and NOT “whenever one gets processed less than perfectly”. NO ONE HAS EVER ASKED FOR PERFECTION. Why do you persist in your extremist-redirections of views that I do not hold?

    Do you like arguing phantom points? Or do you merely find it irritating that my points are actually based in Law and you keep losing when we debate, having to run from answering my actual questions?

    So please, give me another hint – this one based in reality, not in your made-up-extrem-misdirection-so-you-can-attack phantasy world, m’K?

    (while writing my note I see that IANAE has engaged in an actual legal discussion – kudos are due, so please discount the harshness of my tone above by 17%)

    MrModesty,

    Please take my stance on marking for what it is – see the posts above about the two prongs and the inventory issue. Please realize that in creating the mantra of my maxim, the beauty is in its Truth AND Simplicity. For any particular situation, additional facts, such as inventory are covered in details that fall into a separate larger discussion. It is not that the maxim is not true – but rather that such extenuating circumstances are not fit for maxims. It is good indeed that you observe such wrinkles and they do make good discussion for particular fact patterns in individual cases.

    Mr. Hobbes,

    I had to toss my first response, as I see that you came back and caught a part that I hoped would make a difference in your understanding.
    However, I think we are still at a disconnect on “doesn’t have to do ANYTHING to maintain its rights for back damages.” I do not believe that you are correct – “notice” either is or is not a requirement. “Marking” is not the only form of notice. Somehow you have conflated this. I think your attempts at keeping ”notice” apart from “mark” has missed a beat. As you have been most honorable – I will give you more than the benefit of a doubt and re-evaluate my understanding of the requirement for back damages being either notice or mark.

    In the meantime, I think it very telling what “anyone else” posts “Marking is a requirement in order to collect back damages for infringement of patent rights embodied in an actual product, in the absence of actual notice.”

    Anyone else,

    You touch upon an important disclaimer – “in the absence of actual notice.”

    This is key – actual notice being a legally different point than marking.

    You far too glibly dismiss this important part. For NPP’s (in deference to Mr. Hobbes’s distinction, which I do like), MUST take some other arduous route to provide “notice” and cannot take the expedient route. If anything, the loss of back damages without actual notice is not given such an expedient route – you have proven the opposite point you desired.

    As to “…missing the mark.” The right/requirement/privilege talk is only one element of my maxim – it serves more than your immediate purpose – do not be so quick to dismiss it.

    Ned,

    regarding cost of marking, “The cost of not making is to authorize willful infringement.”, and “for mistakes! Wow!!”

    Ned – you are conflating arguments for making the privilege a requirement. There are in fact other ways of making notice than marking, so there is no “authorizing of willful infringement with lack of marking.” The hyperbole here will cause more confusion than benefit. For another example, mistakes are not the same as intent – please do not fall for the mark and forget crowd’s enticements. Everyone should know that patents are for limited times. It has always been the patentee’s just responsibility for making sure the law is followed. Remember – the mark IS the status. The expediency gained by marking comes with a fair legal responsibility. There is NO reason to ignore that responsibility.

    MrsCostConscious,

    In regards to your comments on patents, negative rights, and theory and practice – in practice, NPP’s have every right to their property that in certain cases are just as violated as if they were practicing entities (several illustrative examples above concerning licensing point this out). Your line of thought misses the fact that the rights are indeed above the fray as I mentioned. To dismiss the “negative” rights because that’s how they are “in theory’ is to misunderstand the nature of the property at the very heart of the matter. The standing of an NPP is inherent to the transgression of their legal rights and it simply doesn’t matter whether the entity is practicing or not – patent rights are simply not a right to practice –they are a right to exclude.

    Again, the level of discussion for the most part has been uplifting. Those pursing discussions for legal edification should be applauded – those seeking to merely distract should be disparaged.

  56. 89

    Ergo they have a positive right to the royalties, otherwise all they could get would be an injuction.

    No. They would have a positive right to the royalties if the “infringer” were a licensee who hadn’t mailed them a check.

    In this context, a “right” is an expression of the set of circumstances that permit you to state a cause of action. What entitles you to sue in the first place. That would be the act of making/using/selling without permission.

    Right = exclusive right to make, use, sell.

    Remedy = royalties.

    For one “stealing” is an intentional tort, patent infringement is not.

    It is intentional to the extent that you’re not liable for damages absent notice. In other words, infringement of a PE’s patent is intentional, but infringement of a NPE’s patent is strict liability.

  57. 88

    “The damages are the royalties the infringer would have been paying, if he had licensed the technology instead of stealing it.”

    Ergo they have a positive right to the royalties, otherwise all they could get would be an injuction. Nevertheless, “stealing” is a horrible misnomer for patent infringement. For one “stealing” is an intentional tort, patent infringement is not.

  58. 87

    NPEs should have no standing to sue for damages until they actually licensed their patent to a practicing entity. Otherwise, what would be the damages?

    They have standing because anyone else practicing the patent is violating their exclusive right.

    The damages are the royalties the infringer would have been paying, if he had licensed the technology instead of stealing it. Plus whatever other damages they can prove on the facts.

    My main concern is not even that patent rights should apply whether or not you make a product, though that’s certainly a perverse result of the law. Patents aren’t limited to individual products, any more than they’re limited to disclosed preferred embodiments. Patents may apply to only a small component of a large product. Your marked product is not a tremendously good indication of what your competitor may not do, unless he goes and reads the actual patent.

  59. 86

    “The product-producing patentee can file suit today, but cannot get back damages, UNLESS it has either marked its product or provided actual notice. The difference in position is quite stark, and the non-practicing patentee clearly has a much more desirable position.”

    My read on the requirement of 278(a) is that it provides an affirmative defense, unless, of course, the plaintiff bases it’s calculation of damages on its own products, which would be treated as an admission. In the latter case the plaintiff would be well advised to ensure that it was marking said products prior to claiming damages based on those products.

    That provision does strike me as unfair to practicing patentees/entities vis-a-vis non-practicing entities/patentees. Nonetheless, the Congreff giveth and the Congreff taketh away. Time to talk to your favorite elected representative.

  60. 85

    Patent rights are “negative” rights and apply whether or not you yourself are making the product.

    While true in theory, the above point is not true in practice. If it were, NPEs should have no standing to sue for damages until they actually licensed their patent to a practicing entity. Otherwise, what would be the damages? Moreover, because in general NPEs experience no harm than cannot be remedied monetarily, they are generally not eligible to receive equitable relief. I say in general because a case for equitable remedies could be made by an NPE against a judgment proof defendant.

  61. 84

    Hobbes, you got it.

    All, also please consider that marking is not easy and can be expensive. The cost of not making is to authorize willful infringement. People can copy your product with impunity.

    Now, add to this the nightmare consequences that the False Making statute adds for mistakes! Wow!!

  62. 83

    Marking is a requirement in order to collect back damages for infringement of patent rights embodied in an actual product, in the absence of actual notice.

    The whole right/requirement/privilege talk is missing the mark.

  63. 82

    Anouther round of a bunch of lawyers wanting something for nothing. Law maybe they need to worry about real problems and issues. Right v Privlage is a wonderful reason to squeeze Corporate American out of their earnings. Otherwise they would invest in the companies and see to a strong economy in the US and now wonder why everythings is going to China and Mexico….sounds like good business sence.

  64. 81

    And in a certain sense, the practicing entity actually has the advantage of the expediency of marking, where as the NPE has nothing to mark, and MUST therefore take the less expeditious path in its pursuit of protecting its rightful property.

    I missed this comment earlier. Respectfully, Noise, I think you are missing part of the equation. The NPE (I would prefer “non-practicing patentee” in this context, as this issue is not limited to NPEs) doesn’t have to do ANYTHING to maintain its rights for back damages. The non-practicing patentee can file suit TODAY, and claim damages going back up to 6 years, WITHOUT having provided any prior notice. The product-producing patentee can file suit today, but cannot get back damages, UNLESS it has either marked its product or provided actual notice. The difference in position is quite stark, and the non-practicing patentee clearly has a much more desirable position.

    This is not an issue about NPEs versus the world.

  65. 80

    The anti-NPE stance should not infect law in this manner. If being an NPE were against the law, I could see actions being taken with this bias. As it is, I find such blind adoption of the “troll” rhetoric distasteful.

    Respectfully, my dear Noise, I don’t believe I adopted any “troll” rhetoric at all. And I certainly didn’t mean to display an “anti-NPE stance.” Indeed, I didn’t even use the phrase non-practicing entity. Rather, I used the term “non-practicing patentee” to refer to a patentee that doesn’t make that particular patented product. Under that proposed definition (which certainly might have been unclear in my earlier post), many large manufacturers are “non-practicing patentees” with respect to at least some of their patents.

    My point was simply that there is a clear legal distinction between a patentee who produces products covered by that patent and a patentee who doesn’t. The same distinction applies between product-producing holders of an apparatus claim and product-producing holders of a method claim infringed by users of the product. That legal distinction places a burden on the former that doesn’t apply to the latter. Others have opined on whether this is a good thing or not. But I don’t think it’s necessary to bring “trolls” into this.

    If you own the (R)ight, you deserve every legal portion of that (R)ight, right?

    I don’t disagree with that, except that I would have said that “you are entitled to” rather than “you deserve.” But it’s interesting that you bring this up in this context. The marking-related statutes make it more difficult for a product-producing patentee to get “every legal portion” of the patent (R)ight. If one’s concern was solely for strong patent (R)ights, I should think that one would be pre-disposed against the marking-related statutes.

    I think it’s likely that many non-practicing entities would agree. It should be kept in mind that the marking requirement applies to licensed products as well. If an NPE grants a license, it must require the licensee to mark the products, or the NPE becomes subject to the same limitations on damages as a patent-producing patentee. Again, I’ll leave it to smarter people than me to determine whether this is good public policy.

  66. 79

    NAL as much as I like you for sharing my disfondness for Mooney, I’m going to have to say that your stance on marking is a little overly pedantic. Although it is conceivable that a patent marking program could be instituted that was near perfect, the costs would be exorbitant and, for expired patents at least, would not be justified.

    Even if you consider marking labels, there would still be a problem for products that sat on shelves for an extended period of time.

  67. 78

    IANAE – how is your comment even relevant to the topic at hand?

    I keep forgetting that I have to spell everything out for you.

    You’ve said over and over again that marking is a privilege and not a right. You go on from there to express morally justified disdain for any patentee who marks a product and suffers adverse consequences. After all, it’s his responsibility to mark his product correctly and keep it up to date.

    And yet, filing a patent application is just as much a privilege, but whenever one gets processed less than perfectly you’re immediately up in arms about how the system needs to be changed. Because it’s never the applicant’s fault, and how dare anyone imply that anything is the applicant’s fault till the PTO gets its house in order.

    Let me know if you need another hint.

  68. 77

    Mr Hobbes,

    Even if I consider your position in arguendo, I do not follow how “I also think it’s reasonable to say that this makes the former’s patent rights somewhat weaker than the latter’s.”

    Patent rights are “negative” rights and apply whether or not you yourself are making the product. The rights themselves are above the fray.

    And in a certain sense, the practicing entity actually has the advantage of the expediency of marking, where as the NPE has nothing to mark, and MUST therefore take the less expeditious path in its pursuit of protecting its rightful property.

    Where the power balance breaks down resolves to the same Armageddon defeating capability that irks those who would want this to be a sport of kings – there is no counter-sue reprisal available. I do not see ability to defeat patent briar patches as a bad thing.

    IANAE – how is your comment even relevant to the topic at hand?

  69. 76

    You risk conflating what people MAY rightfully do with their property with, as you have admitted, something that is NOT a requirement.

    Filing a patent application is not a requirement either. Who cares what becomes of them, amirite?

  70. 75

    Mr. Hobbes,

    I would dare say that “product-producing patentee at something of a disadvantage relative to the non-practicing patentee” should not be a part of the equation.

    You risk conflating what people MAY rightfully do with their property with, as you have admitted, something that is NOT a requirement.

    The anti-NPE stance should not infect law in this manner. If being an NPE were against the law, I could see actions being taken with this bias. As it is, I find such blind adoption of the “troll” rhetoric distasteful. If you own the (R)ight, you deserve every legal portion of that (R)ight, right?

  71. 74

    That being said, I am getting the “flavor” of your and Paul’s point. If I could paraphrase, it has become a defacto requirement (and an uneven one at that) in order to reach some certain level of protection – especially considering the evolution of reprisal suits, and the protection against those.

    I apologize for the lack of clarity in my prior posts. Regarding your paraphrase, no doubt there are companies and/or industries for which Section 287(a) is regarded as a de facto requirement. I’ve worked with several large companies, on the other hand, where marking is rarely done.

    On the other thread, there is a tangent regarding whether Section 287(a), when coupled with the false marking statute of 35 USC 292, makes the patent system “stronger” or “weaker.” I humbly submit that this is, like many other questions, a matter that depends on your perspective. As discussed above, a patentee who also makes the patented product must choose whether to mark (which has its costs) or to rely on actual notice to preserve rights to infringement damages (which carries with it the risk of premature and/or inconvenient DJ suits). I think it’s quite fair to say that this puts the product-producing patentee at something of a disadvantage relative to the non-practicing patentee. I also think it’s reasonable to say that this makes the former’s patent rights somewhat weaker than the latter’s.

    These two statutes thus reduce the average “strength” of the patent right. I’ll leave it to those wiser than me to determine whether this makes the overall patent system better or worse.

    I can tell you from experience that litigators defending accused infringers love the marking statute. The more potential defenses, the better.

  72. 73

    While I am contemplating this (and checking out hte link graciously provided by Ned – thanks Ned), even arguendo Paul’s contention is accepted, the fact that marking is not strictly mandated makes the mantra of

    Marking is a privilege, not a right.
    Marking IS the status, not an invitation to check the status.
    As status changes, so must marking.

    still correct.

    I do find it interesting on the sister thread the notion of striking the first element and removing the privilege element and making it a strict requirement. Doing so would still not make marking a right – it would extend the responsibilities of marking (elements 2 and 3) more evenly.

  73. 72

    Mr Hobbes,

    Your “I’m afraid I don’t follow you,” to my question is answered by your own quote “In my earlier post, I meant to say that the law is pretty clear about what constitutes “notice.” ”

    But I still think that “I’m not equating “notice” with “marking” at all.” is not quite accurate.

    That being said, I am getting the “flavor” of your and Paul’s point. If I could paraphrase, it has become a defacto requirement (and an uneven one at that) in order to reach some certain level of protection – especially considering the evolution of reprisal suits, and the protection against those.

  74. 71

    Posted by: Noise above Law | Feb 27, 2010 at 01:08 PM

    “Ned, which Supreme Court case are you referring to?”

    Wine Railway Appliance Co. v. Enterprise Railway Equipment Co., 297 U.S. 387, 56 S. Ct. 528 (1936).

    Paul, I am 100% agreement with you on marking. It would be better to provide damages as a default rule for all infringement and enhanced damages if the patentee was successfully marking.

  75. 70

    … I was inspired by your penchant for the fine arts…

    It’s kind of you to think of me at all. On the fine arts note, Mrs. Hobbes and I were pleased to hear some very nice Shostakovich and Bach this weekend. Although quite different from one another, each is far more to my taste than the Rachmaninoff I mentioned before. Our next date promises to be even better. Although England hasn’t produced very many noted Classical composers, Holst and Vaughan Williams are among my favorites.

  76. 69

    You may be correct as to a specific notice, but you would be incorrect to equate “notice” with “marking” as strongly as you do.

    I’m afraid I don’t follow you, Noise – I’m sure I’m just misunderstanding you. Section 287(a) is pretty clear on its face – if you don’t mark your patented product, you can’t collect damages for infringing activities that occur before you provide actual notice. I’m not equating “notice” with “marking” at all. With regards to collecting pre-suit damages, marking is a necessary condition to avoid a notice requirement, for a manufacturer of a patented product.

    I would be interested in where you think the law is pretty clear that you must mark. That would make marking a requirement. I hold that it is not.

    Respectfully, I very carefully avoided saying that a manufacturer must mark. Instead, I said that the law encourages it to do so. A manufacturer of a patented product “must” mark IF it wants to be put back on the same footing as a patentee who doesn’t manufacture a patented product (or a patentee having only a method claim). In my earlier post, I meant to say that the law is pretty clear about what constitutes “notice.” I can track down a relevant case if you like, but I recall that there are fairly strict requirements for the notice to be effective vis-a-vis 287(a).

    Incidentially, that’s why I must respectfully disagree that marking is a “privilege.” A manufacturer of a patented product has a burden that other patentees don’t have, with regards to maintaining the right to collect back damages – it must either mark, or provide infringers with actual notice. As someone else has noted, the actual notice route carries with it the risk of a DJ action. I’m not opining on whether Section 287(a) is a good thing or not. I do agree with you that a manufacturer that chooses to mark must do so with a reasonable degree of care, but I believe that the false marking statute does include an “intent to deceive” feature that is not unimportant.

    Reference, for example, 35 U.S.C. 287(b)3(B)(iii) – mitigating circumstances.

    I might be wrong, but I believe that the section you cite is almost completely unrelated to the “marking and notice” of Section 287(a). 35 USC 287(b)3(B)(iii) is related to infringement by importation of products made by patented processes.

    By the way, welcome to the discussion.

    Thank you for making me feel welcome!

  77. 67

    Mr. Hobbes,

    You may be correct as to a specific notice, but you would be incorrect to equate “notice” with “marking” as strongly as you do.

    Reference, for example, 35 U.S.C. 287(b)3(B)(iii) – mitigating circumstances.

    I would be interested in where you think the law is pretty clear that you must mark. That would make marking a requirement. I hold that it is not. To be certain – one must pay strict attention between the words “notice” and “mark”.

    I do not deny that the expediancy of marking extends to a strong encouragement – but that is still different than a requirement.

    As to avoiding misleading signals – that is part and parcel of why the mark is considered the status and not an invitation to investigate the status. I think that we agree on this point.

    By the way, welcome to the discussion.

  78. 66

    I am not certain, but wouldn’t a trade announcement that a certain patent has been granted and what is deemed covered be considered “notice”?

    Not if you’re making products that are covered by the patent and are not marking them. The law is pretty clear on this. Under the law, if your product is not marked, the public is entitled to an (admittedly limited) assumption that it’s not patented. Marking is not just an “expediency,” it’s strongly encouraged by the law, for the purpose of avoiding misleading signals.

  79. 65

    Sorry Malcolm,

    Political references are not legal aspects

    Comments on Trolls are not legal aspects

    “up to $500″ includes 1/100,000th of one cent.” is hardly a legal aspect as you are snidely using this in reference to “trolls”.

    Really malcolm – do you even know what “legal” pertains to any more? What happened to your crusade to protect us all from patent abusers? Seems like you are on the wrong side of the fence on this issue.

    As to “well before I did – your comment is second, mine is third – can you get any LESS “well before”?

    Is the humiliation getting to you that bad?

  80. 64

    “The simple and standing straight and tall maxim I provided is something you can bank on:”

    LOL. Sarah Palin would be proud.

    Fyi, NAL, I did comment on the legal aspects of false marking, well before you did. It’s the second comment in the thread.

  81. 63

    Paul F. Morgan,

    You are assuming that because it may be difficult, it is fallacious.

    The law does not work that way.

    Answer these questions with a simple one word answer:

    Does the law require you to mark? (hint: No.)

    Can you (not is it easy to) obtain your full measure of rights without marking? (hint: Yes.)

    The fact that the expediency of the CHOICE of marking is so great is even more reason for its legal responsibilities to be enforced (hmmm, how come we are not hearing from that poster who is always protecting us from “teh” abuses of the patent system?).

    You further assume that “notice” must be particular. I am not sure that I buy that. I am not certain, but wouldn’t a trade announcement that a certain patent has been granted and what is deemed covered be considered “notice”?

  82. 62

    Arguing that non-marking of patented manufactures is not punitive because under 35 USC 287 actual notice could be used instead to avoid the 35 USC 287 damages recovery penalty is also fallacious.
    First, the patent owner would have to somehow find out about every infringer just as soon as they start infringing and promptly send them all notice letters [practically impossible in most cases].
    Secondly, sending such an effective actual notice letter to an infringer can trigger a declaratory judgment suit by the infringer in a forum of their choice.

  83. 61

    Thanks Helpful – I did wait and refresh (note the post times of the first two are separated by three minutes).

    Smooth – still no legal thoughts, although now introducing politics – how malcomy of you.

    Maybe you can try to think of something that would advance the legal discussion here?

  84. 59

    “The simple and standing straight and tall maxim I provided is something you can bank on:”

    Hey, it’s another one of those translated Japanese lines. I must admit though, this one sounds very Sarah Palinesque. Noise, are you from Wasilla?

    Noise, please review the 2/2/2010 @ 6:55 AM comment.

  85. 58

    Noise, after you post, wait a couple of minutes to see if your post got through the profanity filter. You can refresh the page and see if it shows up in the “Recent Comments” field at the upper right. This will have the benefit of making you look less like a psycho compared to continually posting 2, 3, or 4 near-identical comments in a row.

  86. 57

    CaPat,

    I almost missed your post of substance.

    I do not agree with your view in support of Paul (not that I disagree with you supporting Paul – nothing wrong with that – I think the legal thinking is not correct).

    You imply that marking is required.

    It is not.

    What is required for what you indicate is “notice”. Notice can take many forms. It is NOT mandated that marking is the form of notice.

    There simply is NO requirement to mark. If you do not mark you can still obtain all of your legal rights and thus baseline damages start with the “normal” of unmarked. As hmmm pointed out, marking is an EXPEDIENT method. It is a priviledge. The law clealy indicates that marking is NOT required. That same law clearly indicates that there are responsibilities that come with marking. Assuming that the expediency and the other utilities available in marking (such as use in marketing or providing product information) make it a right and not a privilege is a baseline error. It is ignoring the very words of the law, the very reason for the law.

    The simple and standing straight and tall maxim I provided is something you can bank on:

    Marking is a priviledge, not a right.
    Marking IS the status, not an invitation to check the status.
    As status changes, so must marking.

  87. 55

    Filter active – trying this in sections:

    Sorry Smooth – my reference to “ghetto” had absolutely nothing to do with race.

    I was thinking music – where is your mind at?

    And it’s funny that the person who has the most atrocious record on race chimes in – the person who threw around the N word and refused to apologize (what 6 be wrong and apoligize? – not to sarah, not to anyone) – Now that may not be hypocrisy, but I am sure that’s irony.

    Thanks for the link 6 – you have actually provided something of use. Not legal use, but nonetheless of use. Of course, you are wrong yet again in what I was referencing as ghetto (not the “teh”, but rather the “shiot – roolz”) – but would anyone be surprised that you post something in error?

  88. 54

    Filter active – trying again:

    Sorry Smooth – my reference to “ghetto” had absolutely nothing to do with race.

    I was thinking music – where is your mind at?

    And it’s funny that the person who has the most atrocious record on race chimes in – the person who threw around the N word and refused to apologize (what 6 be wrong and apoligize? – not to sarah, not to anyone) – Now that may not be hypocrisy, but I am sure that’s irony.

    Thanks for the link 6 – you have actually provided something of use. Not legal use, but nonetheless of use. Of course, you are wrong yet again in what I was referencing as ghetto (not the “teh”, but rather the “shiot – roolz”) – but would anyone be surprised that you post something in error?

    The post at 03:46 is not by me – For someone to post about hypocrisy AND falsely use a moniker to do so says far more about that person than the person they seek to mock.

    And the theft of a moniker has been done before (yet more old slime – go figure). When sarah can tell the malcomy fingerprints, it’s time to look for new tricks (no offense sarah).

    “You can dish it, but, you can;t take it” Sarah lands a kick – yet another “chick” beating up on Malcolm.

    Oh, the humiliation of it all.

    AI had it right at with a recent post on another thread link to patentlyo.com

    where I replied:

    “Malcolm, what could it have been that Noise did to damage your psyche so badly?

    Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?”

    That was only the start.

    I took the bully’s playground from him, beating him in the mudpit without resorting to the levels of slime that he descends to.

    Its brutal for him to be so exposed – a vacuous fool provecatuer, whose ability to be provocative is limited to non-legal stale tricks (and thus not very provocative at all).

    As they say… Sucks to be Malcolm (what the sam hill).

    And YET another thread wherein the likes of Malcolm, 6 and now Smooth avoid any discussion of legal issues, but post nonetheless. Whatsamatta boys – no legal thoughts pass through your heads?

  89. 53

    Sorry Smooth – my reference to “ghetto” had absolutely nothing to do with race.

    I was thinking music – where is your mind at?

    And it’s funny that the person who has the most atrocious record on race chimes in – the person who threw around the N word and refused to apologize (what 6 be wrong and apoligize? – not to sarah, not to anyone) – Now that may not be hypocrisy, but I am sure that’s irony.

    Thanks for the link 6 – you have actually provided something of use. Not legal use, but nonetheless of use. Of course, you are wrong yet again in what I was referencing as ghetto (not the “teh”, but rather the “shiot – roolz”) – but would anyone be surprised that you post something in error?

    The post at 03:46 is not by me – For someone to post about hypocrisy AND falsely use a moniker to do so says far more about that person than the person they seek to mock.

    And the theft of a moniker has been done before (yet more old slime – go figure). When sarah can tell the malcomy fingerprints, it’s time to look for new tricks (no offense sarah).

    “You can dish it, but, you can;t take it” Sarah lands a kick – yet another “chick” beating up on Malcolm.

    Oh, the humiliation of it all.

    AI had it right at with a recent post on another thread link to patentlyo.com

    where I replied:

    “Malcolm, what could it have been that Noise did to damage your psyche so badly?

    Was it the way you were embarrassed and forced to flee during the Printed Matter Doctrine discussions?”

    That was only the start.

    I took the bully’s playground from him, beating him in the mudpit without resorting to the levels of slime that he descends to.

    Its brutal for him to be so exposed – a vacuous fool provecatuer, whose ability to be provocative is limited to non-legal stale tricks (and thus not very provocative at all).

    As they say… Sucks to be Malcolm (what the sam hill).

    And YET another thread wherein the likes of Malcolm, 6 and now Smooth avoid any discussion of legal issues, but post nonetheless. Whatsamatta boys – no legal thoughts pass through your heads?

  90. 52

    Noise, I applaud your newly found honesty. Or was that one of those “voices in your head” style posts you were doing a while back?

  91. 49

    hi – my name is Noise Above Law. I have strong opinions and am not afraid to defend them.

    Nonetheless, I rely on hyperbole, bullying, and forced suspension of disbelief (especially with regard to stare decisis) in doing so. I decry the same in others. Please forgive my hypocrisy.

  92. 46

    Mea Culpa 6 – I mistook the banality of Smooth Move for you.

    But too bad on the copyright infringement try – I see you don’t know copyright law just as much as you don’t know patent law.

    Smooth,

    Me, complain about the Trainwreck? – I love this place!

    Where else can I find such insightful legal commentary such as – “you misspelled that word”, especially when it is pointed out with a word like “Wannabe” and of course, your beginning quote of “Bull Shiot. Dennis roolz, Gene Quinn droolz. (NAL is teh foolz)” misspelled “the” along with the quite lame ‘ghetto’ slang – or is teh ghetto slang as well – talk about Wannabe’s!

    I guess that you are the King of Wannabe witty remarks.

    Now then, do you actually have anything to say about law?

    …didn’t think so.

  93. 45

    NAL:

    What I think Paul meant was that the owner of a paper patent is entitled by law to the full available scope of infringement damages. On the other hand, the owner of a patent who actually practices that patent is required to mark the patented product in order to have that same entitlement to damages. So, unless your view is that public policy should favor those NOT practicing their patents, it’s hard to see your rationale for calling marking a privilege. It is, rather, a requirement, with the failure to mark being a penalty of loss of damages to which the patentee is ordinarily entitled.

    Given the fact that marking is a requirement, not a privilege, the evidence threshold to prove intent to mis-mark should be at least as high as the proof of intent required with respect to a patentee’s duty to disclose.

  94. 44

    Oh and NAL, re your mistakenly attributing to me a quote which you transported to Gene’s site: It wasn’t me, but I thought it was funny :)

    If it had been me I might have to sue you for copyright infringement.

    All rights reserved bia bia!

  95. 42

    “Unlike certain blogs that ban certain poster (like 6) for utter stupidity, this is still, after all, the Trainwreck.”

    And yet, day after day, and usually hour after hour, you’re here, complaining about “The Trainwreck.” Unlike yourself, I appreciate this blog and the fact that Dennis gives commenters the freedom to say what we want, as opposed to your buddy Quinn who only allows those that pass the sycophant test to comment.

    “be quite”

    Heh. Wannabe witty remarks don’t work so well when you can’t spell.

  96. 41

    Paul F. Morgan,

    I am talking about the law regarding marking as a privilege, not a right.

    Are you saying this is not correct?

    6,

    Thanking those that contribute to a discussion by focusing on actual legal matters rather than yours and Malcolm’s vacuous postings, I am hardly serving as a conversation moderator.

    I know better – your shields of persistent ignorance prevent such encouragement of thoughtful dialogue from such insignificant, yet still banal, intrusions.

    Unlike certain blogs that ban certain poster (like 6) for utter stupidity, this is still, after all, the Trainwreck.

    Further, I will still slam the rope and straw tag team as I see fit.

    Now be quite – grownups are having a conversation that you cannot pretend to understand.

  97. 40

    Re: the “default, thus normal, position is not to mark.”
    You must be talking about the conduct of the many companies these days that do not BOTHER to mark their products, even if they have patents on them [especially where they have a LOT of patents].
    But we were talking about the LEGAL consequences of not marking their products, for which 35 USC 287 is clear, and entirely negative.
    [And one has no way of knowing how many companies do not mark simply because they did not get adequate legal advice about the years of potential back-damages [pre-suit or pre-actual-notice infringements] recovery advantages under 35 USC 287, especially as to their licensees.]

  98. 39

    “thanks for joining Paul, Ned and mmm.”

    Noise, nice of you to appoint yourself as the conversation moderator. Your self-importance (impotence?) knows no bounds.

  99. 38

    Under the latest SupCt decision on corporate jurisdiction, don’t all the cases need to be transferred to Federal court where the corporate headquarters reside? That may make it a little more expensive for the plaintiff.

  100. 37

    You really need to be able to focus legal arguments in the right frame – do you even have a point concerning the law here?

    Do you even recognize the legal concept and the law at hand?

    You’re such an obnoxious tool, NAL.

  101. 36

    Gentlemen – nice to see a little more substance in the discussion – thanks for joining Paul, Ned and mmm.

    mmm – It looks like you get it. Well said.

    Paul F. Morgan – your position on “punishes patent owners who do NOT mark” and “only takes away from the normal rules for getting full damages” is not correct. The default, thus normal, position is not to mark. Remember – marking is not a right, it is a privilege (thanks Annoyed). You seem to assume that it is a given that you can freely mark – this just isn’t so.

    Ned, which Supreme Court case are you referring to?

  102. 35

    Re: non-marking is “not really a punishment, it’s an exchange.”

    Not really, since the marking statute only takes away from the normal rules for getting full damages, only from patent owners who produce real products without marking, whereas any patent owner that does NOT benefit the public with any real products [NPE owners of mere “paper patents”] can get FULL damages. So where is there an “exchange”?

  103. 33

    Soooo — we now have numbers of different qui tam suits filed in different jurisdictions by different parties, all in the name of the government, requesting penalties for false marking involving the same patents and products.

    Huh?

    I suppose all could collect, right? What legal theory prevent others from piling on and filing additional suits? Res Judicata?

    I am completely unfamiliar with qui tam law and practice. It would be interesting to hear from someone who knows more about this.

  104. 32

    mmm, you apparently haven’t read the Supreme Court cases on this topic. Damages is the default rule, not the exception. Congress took away damages for patentees who also sell products, and required them to mark.

  105. 31

    Paul –
    It’s not really a punishment, it’s an exchange. If you mark, you get the benefit of the legal fiction that is notice during litigation without actual notice. This is a hugely painful detriment to a would-be infringer who does not have to actually seen the product much less the marking. It is especially true for the more esoteric method claims.

    In consideration for this, I think that the marking statute could provide a decent deterring effect (assuming that the 100,000th of a cent standard isn’t frequently applied) to would-be markers that mark out of habit and without actual thought.

    It should be a balance.

  106. 30

    The REASON to mark products with patent numbers is right in the patent statute itself, 35 USC 287. That statute punishes patent owners who do NOT mark their, or their licensed, products by reducing their recoveries for patent infringement in many cases.

  107. 29

    “The Courts have held that there is NO other reasonable basis for marking except for Status.”

    What cases? (it’s a real question – I’m not trying to start trouble)

  108. 28

    Falsely: “Where else can I find someone who so values Noise Above Law”

    It’s safe to say that no one values Noise above Law even half as much as Noise above Law.

    Noise: “apologize for the FOS comment unless you can back up what you say, or stf up”

    Noise Translated: “this subtlety was not so delicious”

  109. 27

    This “get rich quick” scheme is the unfortunate result of the first modern case getting to the CAFC being a rare case with actual evidence of deceptive intent to mark a product that was never covered by the marked patent, and the failure of the CAFC to provide any guidance for normal situations.
    35 USC 292 requires marking an “unpatented article” .. “for the purpose of deceiving the public.”
    That is NOT the fact situation for the vastly more typical situations in which the product HAd been patented, and thus validly marked, but the mark was not removed from products made after the patent expired due to accident or simple negligence, and there is no proof that any member of the public had ever been deceived.

  110. 26

    FM,

    Also, be aware that Smooth Move is actually 6, and the Famoosity 6 Corollary holds even for weak sockpuppets – if 6 agrees with you, you are likely wrong.

  111. 24

    Delmendo’s Letter,

    “You say that, regardless of whether I have non-deceptive goals”

    Um, no I said there are two prongs – one is the deceptive intent. Nowhere did I say that regardless of non-deceptive goal. I did say that when you decide to mark with something that is known to expire – you bring upon yourself the legal liability to do something when it does expire.

    It really is that simple.

    “Let’s apply your thesis in the inequitable conduct context.”

    Um, let’s not. Even in its simplicity, people are getting confused. Start conflating IC, and you run the risk of confusing yourself. Inference of deceptive intent in the two matters is simply not as analagous as much as you wish them to be (remember – it is a very easy concept to remember that marking IS the status, and the status WILL change – it is not forever).

    “As long as other reasonable bases exist for placing the expired patent number on the product (e.g., this is how to make this product, this product is useful and innovative, this product is green, etc”

    WRONG. Marking is an explicit legal move with a direct legal consequence. It is also NOT a right. Your examples are nice, but they may violate the direct simple legal principle of “marking”. The Courts have held that there is NO other reasonable basis for marking except for Status. Lose sight of that simplicity, and you become an angry, confused, attacking FM FOS.

    FalselyMarked,

    “now you’re bobbing and weaving.”

    Hardly. My position stands straight and tall.
    Marking is a priveledge, not a right.
    Marking IS the status, not an invitation to check the status.
    As status changes, so must marking.

    You have yet to show ANYTHING wrong with my legal understanding. I get that you don’t like the way I present myself or responded to you that your knowledge of the inventory factor was deficient. But, show me where I’m wrong and I will humbly apologize.

    I have even given you additional help (The twice offered help was not to do your legwork – I’ve given you the help as the search of this blog – your answers are there for you).

    Also, Let’s get back to – Show me where I’m wrong, apologize for the FOS comment unless you can back up what you say, or stf up. Instead of generalized “you didn’t help me” whining, which legal principle that I shared is in error and why?

    “I only accused you of being Full O’ Silliness after YOU:
    Decided to repetitively mock me with:
    “Or didn’t you know that?”
    “Or didn’t you know that?”

    For one not knowing me, you were only to hppy to mock me and instigate with:
    “Didn’t think so.
    Static, Noise, whatever.”

    Or do you forget who accused someone else of something first?

    You put up case specific questions in response to my nicely boiled down legal principles, attacking me without provocation in the process. And you wonder why I respond to you with snark?

    If you wanted to discuss the particulars of new cases, try honey rather than vinegar. Didn’t your mother tell you the best way to get answers is to ask nicely?

  112. 23

    G’night John Boy. Time to get back to work.

    Noisy, I hope you’ll decide to finally make good on your twice-offered help. The questions still stand, and are just a couple of posts above.

  113. 22

    Smooth Move: “She seems to enjoy that. Perhaps an intellectual masochist?”

    Noise is a Sheila? If I had any chivalry, I’d now feel bad for being impolite, but then that wouldn’t be PC, so I guess I won’t.

    Smooth Move: “Dude, don’t use the C-word around here. Bad things happen here (like 600 comment threads)…”

    My bad/didn’t realize the Armaggedonish Implications. (But I am interested in the answers. Where else can I find someone who so values Noise Above Law?)

  114. 21

    Noise: “You know – the attitude you display, attacking me, calling me FOS, when it appears that you don’t know jack, knowing how to get cases, but not understanding the law”

    Oh puh-lease! First, I don’t “know how to get cases” (I am not a litigator; just a regular prep/pros schlub trying to keep up). Before you go all acting wounded on us, bucko, it might be useful to you to review the above.

    I only accused you of being Full O’ Silliness after YOU:

    Decided to repetitively mock me with:
    “Or didn’t you know that?”
    “Or didn’t you know that?”

    And then,
    “do you even have a point concerning the law here?”

    And further,
    “Do you even recognize the legal concept”

    And still further,
    “It appears that you do have one thing mastered – not thinking.”

    And this little plum,
    “Try thinking before replying – it will save you some embarrassment.”

    Not to mention accusing me, with no proof, of being a Kimberly-Clark insider here with an agenda,

    and then

    accusing me of not caring about my legal obligations.

    It was after all of these that I said you were Full O’ Silliness.

    So spare us your self-righteous wounded act. It’s gotten old already, and I barely know you.

  115. 20

    “Not as cute a story as on IPWatchdog, but the same simple answers.”

    Bull Shiot. Dennis roolz, Gene Quinn droolz. (NAL is teh foolz)

    “You’re just making yourself look foolish.”

    She seems to enjoy that. Perhaps an intellectual masochist?

    “it was not constitutional as previously constituted”

    Dude, don’t use the C-word around here. Bad things happen here (like 600 comment threads) when people use the C-word.

  116. 19

    C’mon, Noise, you offered to answer questions on the law and now you’re bobbing and weaving.

    What controlling authority states that an expired patent marking is a false marking?

    And, how much is “too much” expired?

    Also, you mentioned “the inventory exception” – in what controlling authority law do you find it?

    And back to a basic business question. What happens when you have 50,000 SKUs? Think you can obsolete packaging that fast? Or is your answer simply, if you can’t the heat, stay outta the kitchen?

    Also, since you know all things legal, constitutional questions should be of interest. What do you think of the differences between the level of government notice and government control as between the FCA (where the government’s actually been defrauded of cash) and 292 (where the only apparent injury to the government is the fact that its law was not properly followed by the false marker). Has Article II been satisfied by 292 with respect to the “Take Care” clause? And can the government actually assign this sort of injury (its laws not being followed) to a private citizen, who has no statutory government oversigtht, so as to properly confer Article III standing?

  117. 18

    Noise – I admire your willingness to stand by your thesis. You say that, regardless of whether I have non-deceptive goals in placing a patent number on a product, placing the expired patent number is per se deceptive. My only escape is to remove the patent number when it expires.

    Let’s apply your thesis in the inequitable conduct context. Any failure to submit a material reference, despite a showing that I sincerely believe the reference to be cumulative, renders the patent unenforceable.

    The court didn’t follow that per se approach in Star Scientific, and it won’t here either. (“the inference [of deceptive intent] must not only be based on sufficient evidence and be reasonable in light of this evidence, but it must also be the single most reasonable inference able to be drawn from the evidence“) As long as other reasonable bases exist for placing the expired patent number on the product (e.g., this is how to make this product, this product is useful and innovative, this product is green, etc.), there will be no liability for false marking.

  118. 17

    Tell me, would YOU file suit on a patent that just expired late last year?

    Probably not – I did point out the inventory exception, right? (You didn’t find that in your google analysis – Why, you must be FOS)

    What happens when you have 50,000 SKUs?

    You can choose not to mark – Do you feel that shear size or quantity obviates the law? Should we just chuck all those environmental laws while we are at it?

    You can also choose to wind down inventory – It’s not like the patent expiration dates are some huge unknown – You never heard of inventory control – what kind of business are you running? Do you always buy excess for years in advance? Really?

    You know – the attitude you display, attacking me, calling me FOS, when it appears that you don’t know jack, knowing how to get cases, but not understanding the law, – you’ve got bigger problems than “marking”.

  119. 16

    D.A. – Sorry, I thought you were saying one could consult the FCA for what to do with the duplicative cases and trying to find out whether both plaintiffs could recover or not.

    If indeed that is what you meant, then my reply is the same – the FCA itself had to have all the additional provisions inserted to make it a constitutional statute.

    So what of 292, since the quality of the law has been mentioned? Is it still constitutional despite making no provision for gov’t notice? No provision for what to do with duplicative plaintiffs? No provisions for government control? What about Article II “take care” clause?

  120. 15

    “. What controlling authority states that an expired patent marking is a false marking?”

    I won’t even charge you – it’s a two prong test.

    You can find the inventory exception using this site’s search button – it was discussed last year. My comments on that thread may also supply more erudition – if you can handle it.

    You googled this, read all those cases, want to pick a fight and call me FOS – yet you haven’t shown one instance of what I said was wrong.

    Why is that?

    If you have a legal bone to pick – let’s hear it. If you just don’t like the law or the fact that I’m right – well, that doesn’t quite count as FOS, now does it?

  121. 14

    Falsely Marked –

    I did not suggest you consult the FCA case law for anything related to the issues you raise a couple of posts above.

    As to one of the other issues raised – point in fact – if a patent expires while a marked product is on store shelves, that is not false marking. Whether someone filed a suit based on poor facts has nothing to do with the quality of the law, however.

  122. 13

    You’re welcome for the link. I had to google to find it again which is why I posted it in a subsidiary post instead of up front.

    Here’s a question for you, Noisy, since in your beneficent erudition you’ve offered to school me on the law. What controlling authority states that an expired patent marking is a false marking?

    And, how much is “too much” expired?

    Also, you mentioned “the inventory exception” – in what controlling case law do you find such an “inventory exception”?

  123. 12

    Hi Different Anonymous – your point about the FCA would have some merit except for one thing. The FCA is packed full of protections, government controls, not to mention the fact that it explictly states that the first relator with actual knowledge blocks seconds from filing.

    All those items are in the FCA because it was not constitutional as previously constituted, if you’ll forgive the pun.

    What does 292 have in it? No government control, heck, not even a required NOTICE to the government. A plaintiff can file and have a fearful defendant settle, put the government’s check in the mail, all before Uncle Sugar even knows what’s happening.

  124. 11

    Noisy, “You supply a false situation – items on shelves that were marked when the patent was in force are explicitly exempted as not breaking the law. Or didn’t you know that? The law even permits a certain wind down of inventory not sold at the patent expiration date. Or didn’t you know that?”

    You’re so FOS, man.

    All the complaints are easily accessible; if I can find them, why can’t a lawyer of your stature and erudition?

    Tell me, would YOU file suit on a patent that just expired late last year? Several of them did, and yet they went ahead and filed suit.

    What happens when you have 50,000 SKUs? Think you can obsolete packaging that fast? You’re just making yourself look foolish.

  125. 9

    P.S., just FYI, the O’Neill v. Roche Diagnostics listed by DC is another case part and parcel with the Simonian cases. If you look at the complaints, all are filed by a grouping of the same 3 law firms (Vanek, Vickers; Sperling-Slater; and Eugene Cummings PC).

    By the way, all the Simonian-O’Neill complaints are easily accessed at the ND IL link below.

    link to ilnd.uscourts.gov

  126. 8

    As to the ” Simian v. Kimberly-Clark complaint. The patent in suit expired 4 months ago”

    – congratulations – you must be an insider as there is no link posted, and your reply is so off-the-cuff-fast-without-thinking that means you must simply think that any company can mark and the law be dammed. Most likely you are in luck with an expiration of only four months, as the inventory exception will likely kill that particular suit.

    Nevertheless, my legal stand is 100% accurate. Marking is not a right – you appearntly think it is. Marking is a priveledge which carries with it legal responsibilities. You don’t want to care about legal responsibilities? Fine – don’t mark. You can choose not to.

    Do you have any LEGAL issues that I can help you understand?

  127. 7

    FalselyMarked,

    You supply a false situation – items on shelves that were marked when the patent was in force are explicitly exempted as not breaking the law. Or didn’t you know that? The law even permits a certain wind down of inventory not sold at the patent expiration date. Or didn’t you know that?

    You really need to be able to focus legal arguments in the right frame – do you even have a point concerning the law here?

    Do you even recognize the legal concept and the law at hand?

    AS far as business, I have run a business, I do help people run there businesses – So your “Didn’t think so.” is simply wrong.

    And unless you run a business that has years and years of inventory (which means that you likely wouldn’t be running that business for very long), you would realize that your arguments do not even make business sense, much less legal sense.

    It appears that you do have one thing mastered – not thinking.

    Try thinking before replying – it will save you some embarrassment.

  128. 5

    Here’s a question for the peanut gallery (and for DC, if you’re lurking here Prof) – since the plaintiff in these cases is allegedly standing in the shoes of the government, suing on its behalf and collecting the (split) penalty, once the first plaintiff has concluded a suit, is the government’s interest as to that allegedly falsely-marked product extinguished?

    Note here that in the recently-filed 55 or so false marking cases, at least 4 appear to be overlaps – one set of plaintiffs suing Hunter, Procter, Quigley or Novartis in one venue, while a second set of plaintiff is suing the same companies in yet another venue on the same products.

    In some cases, a first plaintiff filed a day ahead of a second plaintiff. But in others, the two complaints were filed on the same day.

    What do you do with this?

  129. 4

    Noisy, one can only assume that you don’t actually have any products to monitor. Take a look, for example, at the Simian v. Kimberly-Clark complaint. The patent in suit expired 4 months ago.

    Do you have any idea how many SKUs a company like Kimberly-Clark has in its inventory?

    Any clue how long products stay on the shelves?

    Any clue how much packaging costs as a percent of your product TPC?

    Any clue how long packaging inventories last once printed?

    For that matter, any clue at all in this regard?

    Ever run a business?

    Ever help someone else run a company?

    Didn’t think so.

    Static, Noise, whatever.

  130. 3

    Not as cute a story as on IPWatchdog, but the same simple answers.

    Marking is a priveledge, not a right.
    Marking IS the status, not an invitation to check the status.
    As status changes, so must marking.

Comments are closed.