False Marking Claim

We’ve written before about an analyst’s due diligence and reviewing an organization’s potential exposure to false marking claims emanating from its patent portfolio.  Linked is an instructive copy of a recent false marking complaint filed in Main Hastings LLC v. Pfizer, Inc. D/B/A Pfizer Animal Health (main-hastings-v-pfizer), where it is claimed the defendant violated 35 USC 292(a) by marking products with patents that have expired.  Paragraph four spells out the argument, and six the damages requested.  (Interestingly, the United States is NOT an uninterested party under 35USC292(b), as damage awards are split with the government.)

The risk can be substantial, and any thorough review of an IP portfolio should at least encompass a checklist  designed to identify and ameliorate this risk. In this case, there are 20 counts in the complaint, with many of the patents allegedly expiring years ago, and “each falsely marked product is a separate ‘offense’ pursuant to 35 USC 292(a),” at up to $500 per.