Rep. Latta recently introduced a false marking bill, H.R. 243, in the House. If passed, it would revise Section 292 as follows:(a) . . . Whoever marks upon, or affixes to, or uses in advertising in connection with unpatented articles 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 one or more articles 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, in the aggregate, for all offenses in connection with such articles.
(b) A person who has suffered a competitive injury as a result of a violation of this section may bring a civil action in the appropriate district court of the United States against the person violating this section for recovery of not more than $500 in damages to compensate for the injury.
Here are my thoughts:
H.R. 243 is effectively a repeal of the false marking statute. ($500 cap on damages and only brought by competitors.) Perhaps a better approach would be to simply require that a person suffer a competitive injury. Or better yet, leave the current statute alone. (The number of false marking claims will likely decrease over time as businesses adapt to the new reality.)
Plus, H.R. 243 basically eliminates any need for a company to be diligent about marking. Why not mark a product with expired patent(s) and even patent(s) that do not cover the product? It makes sense from a business, marketing, and legal perspective. Overmark (if that's even a word) and provide notice to the world in case there is a future infringement. If there is, then let your litigation attorneys decide whether it makes sense to argue that your products are covered by the claims.
What do you think?
