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Show Me Your Competitive Injuries

By Monplaisir Hamilton1

The 2011 America Invents Act amends the false patent marking statute, 35 U.S.C. §292, which may have remedied the onslaught of false patent marking cases filed in federal court, but this cure is likely temporary because savvy litigants are sure to refine their allegations to meet threshold challenges of sufficiency. Understanding common law and antitrust law competitive injury standards may prove useful when defending against these claims. Below is a brief review of the important reforms, case law interpreting the amended statue, and areas ripe for dispute.

Key Reforms of § 292

The changes to the false claim section have received praise for both limiting who can sue and narrowing the scope of proscribed conduct.2 Significant reforms include:3

  • A change in who can sue for the statutory penalty. Previously, any party could sue, but with the reforms, only the United States may sue for the statutory $500 per offence penalty of §292(a).
  • Qui tam4 status is completely removed from §292. The government will no longer obtain half of ...

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