December 13, 2012
Today, in Brooks v. Dunlop Manufacturing Inc., the Court of Appeals for the Federal Circuit issued a decision relating to the federal false marking statute, 35 U.S.C. 292, and specifically the qui tam provisions of this statute.
Before the Leahy-Smith America Invents Act, any person could sue under the qui tam provisions of the statute to recover a monetary penalty for false patent marking on behalf of the United States. After a spate of false marking lawsuits, Congress amended this statute, and restricted the class of private plaintiffs permitted to bring suit to those who have suffered a "competitive injury." Congress also removed the qui tam provision and specified that only the United States may sue for the false marking statutory penalty.