False Patent Marking


False marking of patents is covered in 35 U.S.C. 292 which provides that whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words "patent," "patentee," or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public - Shall be fined not more than $500 for every such offense. Anyone can bring an action and they split the fine 50/50 with the federal government.

The Federal Circuit held in Stauffer v. Brooks Brothers, Inc., 619 F.3d 1321 (Fed. Cir. 2010) confers standing (i.e., the right to sue) on an individual as long as the individual alleges that the U.S. suffered an injury in fact causally connected to the defendant’s conduct that is likely to be redressed by the court.  The Federal Circuit found that violation of the act alone is sufficient injury in fact to confer standing. Interestingly there is a constitutional challenge to §292 arguing that the delegation of the enforcement of patent laws was an impermissible encroachment on the executive branch by Congress.  However, this argument was not taken up by the Federal Circuit in Stauffer.



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