On March 14, 2011, Judge Dan Aaron Ploster of the Northern District of Ohio reaffirmed his February 23, 2011 ruling that the false patent marking statute is unconstitutional. The U.S. Department of Justice had asked the court to reconsider its prior ruling and sought to intervene in the in the qui tam case filed by Unique Product Solutions against Hy-Grade Valve.
While the government was allowed to intervene, the court again rejected the government's argument that the "Take Care" provision of Article II of the Constitution does not render the false marking statute unconstitutional. The government urged that the statute is civil in nature and therefore the "Take Care" requirement is inapplicable to the statute. Judge Polster concluded that it makes no difference whether the statute is civil or criminal because the "Take Care" provision is applicable to both criminal and civil statutes. The mere fact that the government can intervene in a qui tam false marking case is insufficent control of the case by the government to satisfy the Article II "Take Care" requirement, he said.
Unique Product Solutions had already appealed the court's February 23 determination that the statute is unconstitutional.
A copy of Judge Polster's March 14, 2011 order may be found here.