July 20, 2011
On July 18, 2011, in Hollander v. Ranbaxy Labs, a district judge in Pennsylvania held that the false marking statute, 35 U.S.C. 291, passes constitutional muster. The defendant, Ranbaxy, had charged that the false marking statute violates the Take Care clause of the U.S. Constitution. The court rejected this assertion, and denied the defendant's motion to dismiss the lawsuit on this basis. The court also based its decision in part on the fact that the United States Attorney had intervened in the lawsuit (thus mooting concerns that the executive branch failed to "take care" in the case at bar).
Several district courts have addressed the constitutionality of the false marking statute, with most holding that the statute is constitutional. The Federal Circuit is expected to settle the matter, absent a subsequent appeal to the Supreme Court in FLFMC, LLC v. Wham-O, Inc., which is currently pending. A decision in the Wham-O case is expected shortly.
For more information, please contact Fitch Even partner Kendrew H. Colton.