One Federal Circuit Court of Appeals decision has given a new lease on life of an “old” remedy regarding false patent marking. Another may soon cut it down. Patent statute section 292 permits competitors and other private parties to sue patent owners who mark their goods with expired patents. In Forest Group v. Bon Tool, the Federal Circuit held that remedy was per unit sold, making damages potentially astronomical for manufacturers of mass-produced items. In early 2010, dozens of suits were filed against numerous patent owners, often by the same law firm in the name of the same straw-man plaintiff in the same court on the same day. Numerous law firms, including LaRiviere, Grubman & Payne, are defending such suits throughout the country.
However, a case currently before the Federal Circuit (Stauffer v. Brooks Bros.) is considering whether only truly "injured" competitors have the right (“standing”) to bring such suits. If decided that way, nearly all the suits will be summarily dismissed. Meanwhile, in the Senate and House of Representatives, language has been inserted in pending bills to accomplish much the same result.