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« Biotech/Pharma Docket | Main | Applera Corp. v. Illumina, Inc. (Fed. Cir. 2010) »

March 25, 2010

Comments

In his letter, did Dan identify PUBPAT as a plaintiff in one of these suits? Seems like a relevant fact for legislators to know, particularly in view of the fact that the other half of any recovery goes to the qui tam plaintiff.

Surprisingly, I find that I tend to agree with PubPat that the false marking provisions shouldn't be limited to competitors, but then unlike PubPat I expect that with the rash of false marking suits, courts are going to raise the bar for proving the intent prong of the provision.

A few years ago, before false marking suits became fashionable, someone asked me to look into the possibility of filing false marking suits over some of the same products that Simonian has now put in play, in all cases because the listed patents had expired. In the end it was decided not to proceed, in part because it seemed that in most cases it was simply a matter of oversight: someone had listed a patent on the label for using a chemical product, and simply forgotten to remove it, or more likely didn't realize they needed to remove it, after the patent expired. So it seems that if the courts demand proof of actual intent, and don't just infer intent b/c someone neglected to remove a listed patent, then most of these suits will evaporate anyway, without the need for a legislative fix.

Aside from that, in the vast majority of cases, someone considering copying the marked item is going to engage the services of a patent professional, who will be able to ascertain fairly quickly if the patent in question is in force or has lapsed or been declared invalid.

So it doesn't look to me like the system is broke with regard to false marking, and as the saying goes, if it ain't broke, don't fix it.

In a market without competitors, how would the public ever be deceived? Sort of a tautological argument there, eh?

T,
A market without competitors is not a market without a public. In a market with a public and a single vendor, the likelihood of deception is not only present, but likely increased as there is no competitor to be "on the lookout" - not so much for the public's benefit, directly, but rather for their own benefit.

No tautology at all, eh?

Dan,

How can anyone say that "or more likely didn't realize they needed to remove it"?

It is entirely known that patents are not forever. When someone sets up reminders to pay the mainenance fees, a reminder to change markings at the end of the natural life of the patent should also be put in place. Granted, this will not take into account product changes that drop a product out of a patent claim's coverage, but that's a different matter. I don't think "I forgot" is a valid excuse.


Kevin,

You raise a good point. And just as valid would be the publication of the forces behind the "emergency" inclusion into the Manager's Amendment of the anti-public benefit change. I suspect that someone was influenced to include this selection in the amendment.

Dear Skeptical:

I totally agree - transparency is the key, and keeps those provisions that can't stand scrutiny from being sneaked into bills at the last minute. Like Senator Sessions' bid to exempt his banking friends from the electronic check processing patent infringement litigation he put into the last patent reform bill in the Senate, or the mercury exemption for vaccines that was in a bill passed in the last Congress. (I don't think anyone ever identified the "sponsor" of that provision.)

Some of that can be garnered from campaign contribution rolls but not all of it; maybe we need legislation that would require it, but I don't see how it could ever be enforced.

Thanks for the comment.

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