According to Forest Group vs. Bob Tool Company of the Court of Appeals for the Federal Circuit (CAFC)
earlier this year, false patent marking with an intent to deceive the public into believing that a product is patented when such is not
true is punishable by fine up to USD 500 for each falsely marked product (see e.g. here).
A product is falsely marked if it identifies a patent ostensibly covering the product where (i) no such patent exists; (ii)
the patent is expired; or (iii) the patent listed does not cover the product.
Now the CAFC has ruled in Pequignot v. Solo Cup
(No. 2009-1547, Fed. Cir. June 9, 2010) that:
intent to deceive the public must be proven by a "preponderance of the evidence";
marking with an expired patent is false marking, just as marking with a patent that does not exist or which does not cover the
false marking raises a rebuttable presumption of intent to deceive;
the presumption is rebuttable if the manufacturer proves good faith underlying the false marking, e.g. by relying on advice of
counsel, delaying the removal of the patent number to avoid costs and business disruption, taking steps to mitigate the false marking.
In the case, as reported here,
the defendant’s products were marked with expired patent numbers. However, before the patents expired, Solo Cu...