BLOGS: Patent Markings

Thursday, February 24, 2011, 7:23 AM

False Marking Statute Declared Unconstitutional by Northern District of Ohio

By: Jim Lennon
While there have been several constitutional challenges to the False Marking Statute (35 U.S.C. § 292) under the Take Care Clause, yesterday's decision from the Northern District of Ohio appears to be the first dismissal. See Unique Product Solutions Ltd. v. Hy-Grade Valve Inc., 10-CV-01912 (ND OH Memorandum Order Feb. 23, 2011).

The court held as follows: "Applying the Morrison “sufficient control” analysis to the False Marking statute, it is clear the government lacks sufficient control to enable the President to “take Care that the Laws be faithfully executed.”" Id. at 12-13. The court applied the standard set forth by the Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988), as interpreted by the Sixth Circuit in United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032 (6th Cir. 1994).

The decision will surely encourage more Take Care Clause challenges going forward and may influence other district courts to follow suit. And the question is finally ripe for the Federal Circuit to address once and for all.
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