Expired Patent could make manufacturer liable for Big Fines (Attorneys False Marking Claims)

False Patent Marketing--Not Buyer, but Seller Beware!

            While we are frequently told that the buyer should be aware when purchasing goods, there is an area of marketing that places the manufacturer in a difficult spot.  While the local department or discount store is not liable, a manufacturer that makes a false claim about a patent that covers a product may find itself paying YOU, whether you bought the product or not!

History of Patents

            The founders of this country understood the importance of innovation and progress.  They also understood that people are not likely to invest in creating new inventions unless there is some financial reward for doing so.  To ensure that a person reaps this reward the drafters of the Constitution charged the legislative branch of our federal government with the task of promoting “the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article 1, Section 8)

            To protect inventors, the federal government grants a patent to the inventor.  A patent is an intellectual property right that excludes other from making, using, offering for sale, or selling the invention throughout the United States for a limited time.

            The key here is that the property right established under and pursuant to the Constitution is for a limited time.  If there’s one thing that our founding fathers feared more than squashing incentive to invent, it was creating a perpetual monopoly.  Thus, in the world of inventions, there is a balance between protecting one’s right to be rewarded and society’s desire to promote competition and thereby control the cost of new innovations.

Selling Goods Marked with an Expired Patent is Unlawful

            In a recent patent case heard by the Supreme Court in 2009 (Forest Group v. Bon Tool), the Court reinforced the idea that patent protection is for a limited time.  The Court reasoned that intentionally continuing to manufacture goods with a patent number of a patent that has expired in an attempt to deceive the public is a deceptive trade practice designed to stifle competition in the marketplace.  Potential competitors may be dissuaded from entering the same market if they believe that there is a continued monopoly in place.

The Supreme Court held that, pursuant to the statute in effect, the penalty for such false marking is up to $500 for EACH article that is falsely marked.  Further, the plain language of the statute requires courts to impose penalties for false patent markings on a per article basis.

YOU Are that Patent Police – And You Get Paid

            Not only are manufacturers liable for placing false patents on their products with the intent to deceive the public, but they are liable to any person that catches them doing so.  Members of the public can sue on behalf of the government.  In exchange for doing so, the person bringing suit is awarded one half of the penalty assessed against the manufacturer.

How to Search for Expired Patents

            Look at items you purchase, or that you see on store shelves, to see if there are any patent numbers stamped on the product.  Then, check any such patent numbers to make sure they are still valid.  If the patent number does not begin with a “D” or “P” or “R” and the number is 4,999,999 or lower, the patent expired on or before August 31, 2010.

If the patent number is higher, you will need to check with the Patent Office.  To make your job easier, the government has a website that you can access to look up the status of any given patent.  Simply click HERE.

Once you are on the website of the Patent Office, click on the tab titled “Select New Case,” check the box in front of “Patent Number,” enter the patent number, and click on “SEARCH.”   In the new window that pops up, look for the filing date in the second box on the left column.   As a general rule, patents that do not begin with a “D” or “P” or “R” expire twenty years from the date that the patent was filed.

            In addition to filing a patent, the patent holder must pay maintenance fees that fall due at 3.5 years, 7 years, and 11.5 years from the date that the patent is issued.  Failure to pay these fees during the year that each can be paid also results in the patent expiring.  You can look in the second box in the left column to see if the patent is expired as a result of failing to pay the appropriate fees.

What To Do If You Find an Item Being Sold with an Expired Patent Number

            Before you start celebrating, contact the attorneys at Sanders Law Firm, PLLC.  There are a few exceptions to the general rules.  We will need to confirm that the patent is expired and that a product with the patent number was manufactured after the expiration.  A lawsuit will need to be filed in Federal Court.  Once filed, we will need to research the manufacturer’s company records and interview witnesses to build a case.  Finally, we may need to take the case to trial.  In the end, however, you could be paid a significant reward for your role as patent police.

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The law office of Sanders Law Firm, PLLC stands ready to help you file a False Patent Marking suit in Federal Court.  If you find a product being sold with an expired or non-existent patent number, contact Randy Ivie or Kirk Sanders at 336-724-4707.

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