Patent Law Practice Center

False Marking Statute Ruled Unconstitutional by Ohio District Court

Mayer Brown’s Partner James R. Ferguson passed along this article he wrote with colleagues Richard M. Assmus and Emily C. Melvin on the recent Unique Product Solutions v. Hy-Grade Value decision wherein Judge Polster of the U.S. District Court for the Northern District of Ohio struck down the false marking statute as violating the “Take Care” Clause of Article II of the U.S. Constitution. The article discusses how the decision could affect the numerous false patent marking cases pending in district courts throughout the country.

The Northern District of Ohio has become the first court to strike down the qui tam provision of 35 U.S.C. § 292. Employing the “Take Care” clause of the Constitution, Judge Dan Aaron Polster ruled on February 23, 2011, that the false marking statute lacks the statutory controls necessary to pass constitutional muster. Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc., Case. No. 5:10-cv-1912 (N.D. Ohio, Feb. 23, 2011). (more…)