Patent Marking: Federal Circuit Expands Liability Threat

Complying With the False Marking Statute to Avoid Claims

New Forest Group v. Bon Tool decision significantly raises the stakes

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, March 18, 2010

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to patent attorneys on deciding when and whether to mark items as patented since the Federal Circuit's Forest Group decision expanded liability for mismarking patents. The panel will offer best practices for marking patented items and for minimizing liability risks.

Description

In its recent decision in Forest Group v. Bon Tool, the Federal Circuit Court of Appeals expanded patentee liability for mismarking patents. The Federal Circuit adopted a per article interpretation of "offense" creating the potential for significant damages.

Deciding whether or not to mark articles as patented and complying with the False Marking Statute are not cut and dried. False patent marking can occur under a variety of circumstances, and anyone may sue for the alleged mismarking of an unpatented item.

Since the Forest Group ruling, Bayer, Graco, BIC and others have been sued, and more suits are expected as plaintiffs seek to take advantage of the ruling. Companies and counsel must carefully weigh the costs and benefits of enforcing patents in deciding whether to mark the patented item.

Listen as our authoritative panel of patent attorneys examines the requirements for patent marking and recent court treatment of marking. The panel will discuss the analysis of whether to mark, how to mark, and how to minimize the risk of liability for false marking.

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Outline

  1. Patent marking requirements
  2. Court treatment
    1. Forest Group v. Bon Tool (Fed. Cir. 2009)
    2. Matthew A. Pequignot v. Solo Cup Co. (E.D. Va. 2009)
  3. Patent marking
    1. Determining whether to mark — considerations
    2. How to mark
  4. Minimizing risk of liability for false marking

Benefits

The panel will review these and other key questions:

  • What factors must be considered when determining whether to mark a patented item?
  • How are the federal courts treating claims that allege false marking?
  • What steps can companies and their counsel take to minimize and mitigate the risks associated with false marking?

Faculty

Nathan Cummings
Nathan Cummings
Partner
Cooley Godward Kronish

He focuses on intellectual property litigation, with a particular emphasis on patent litigation. He counsels...  |  Read More

Robert W. Unikel
Robert W. Unikel
Partner
Howrey

He litigates complex patent cases, as well as cases involving trade secrets, trademarks, trade dress and other forms of...  |  Read More

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