DOJ Defends the Constitutionality of 35 USC § 292 Under the "Take Care" Clause
By: Jim Lennon
The Department of Justice recently filed a brief in the Eastern District of Texas defending against a Constitutional challenge to the False Marking Statute (35 USC § 292) under the "Take Care" Clause of the Constitution. See BRIEF OF THE UNITED STATES DEFENDING THE CONSTITUTIONALITY OF 35 U.S.C. § 292, Promote Innovation LLC v. Medtronic, Inc., 10-cv-00233-TJW-CE (EDTX, filed 12-1-10) (attached), p. 11.
While the Federal Circuit is expected to rule shortly on BP Lubricants' mandamus petition on the standard for pleading the intent prong of a false patent marking claim, this next challenge is looming. Wham-O signalled it will be the first to raise the "Take Care" challenge to the Federal Circuit in the appeal by FLFMC of its dismissed false marking suit, but the court below only reached the Constitutional question of standing under Article III. While it may not occur in the FLFMC appeal, the merits of the "Take Care" challenge will eventually be addressed by the Federal Circuit because so many false marking defendants are now raising it.
The "Take Care" Clause simply says that the President "shall take Care that the Laws be faithfully executed[.]" U.S. CONST. art. II, § 3. While some have argued in the past that qui tam schemes in general violate this clause because of the abdication of statutory enforcement authority, many current challenges focus on the details of the False Marking Statute. In contrast to other qui tam statutes, like the Federal False Claims Act (31 U.S.C. § 3729–3733), the False Marking Statute fails to provides the Executive with any authority over a qui tam relator's false marking action. In its brief, the DOJ admitted that the United States lacks the authority to "to intervene in or terminate a qui tam suit" in situations where it wishes to resume control of enforcement, but argued that this was not an issue in the present case. Thus, it argued, the question was not ripe for Constitutional challenge.
The DOJ is attempting to walk a fine line here. Just a few months earlier, in supporting the mandamus petition of BP Lubricants, it argued that it had "a substantial interest in the interpretation of qui tam statutes," and that "any interpretation of the False Marking Statute ...
is of significant interest to the United States." RESPONSE OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER, In Re BP Lubricants USA Inc., No. 2010-960 (Fed. Cir., filed Oct. 20, 2010), pp. 2-3. While a distinction can be drawn between enforcement and interpretation of the statute, the line is thin when we talk about the DOJ having a "substantial interest" in "any interpretation," yet lacking any control over individual enforcement actions. It will be interesting to see how these views are reconciled and how the DOJ's position evolves in the face of judicial scrutiny.
While the Federal Circuit is expected to rule shortly on BP Lubricants' mandamus petition on the standard for pleading the intent prong of a false patent marking claim, this next challenge is looming. Wham-O signalled it will be the first to raise the "Take Care" challenge to the Federal Circuit in the appeal by FLFMC of its dismissed false marking suit, but the court below only reached the Constitutional question of standing under Article III. While it may not occur in the FLFMC appeal, the merits of the "Take Care" challenge will eventually be addressed by the Federal Circuit because so many false marking defendants are now raising it.
The "Take Care" Clause simply says that the President "shall take Care that the Laws be faithfully executed[.]" U.S. CONST. art. II, § 3. While some have argued in the past that qui tam schemes in general violate this clause because of the abdication of statutory enforcement authority, many current challenges focus on the details of the False Marking Statute. In contrast to other qui tam statutes, like the Federal False Claims Act (31 U.S.C. § 3729–3733), the False Marking Statute fails to provides the Executive with any authority over a qui tam relator's false marking action. In its brief, the DOJ admitted that the United States lacks the authority to "to intervene in or terminate a qui tam suit" in situations where it wishes to resume control of enforcement, but argued that this was not an issue in the present case. Thus, it argued, the question was not ripe for Constitutional challenge.
The DOJ is attempting to walk a fine line here. Just a few months earlier, in supporting the mandamus petition of BP Lubricants, it argued that it had "a substantial interest in the interpretation of qui tam statutes," and that "any interpretation of the False Marking Statute ...
is of significant interest to the United States." RESPONSE OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER, In Re BP Lubricants USA Inc., No. 2010-960 (Fed. Cir., filed Oct. 20, 2010), pp. 2-3. While a distinction can be drawn between enforcement and interpretation of the statute, the line is thin when we talk about the DOJ having a "substantial interest" in "any interpretation," yet lacking any control over individual enforcement actions. It will be interesting to see how these views are reconciled and how the DOJ's position evolves in the face of judicial scrutiny.
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