What can I do about a patent marking that is improperly on a product?

The law provides that whoever falsely marks a product with either a patent number, the words "patent" or "patent pending," or other words or numbers implying that the product is protected by a current or pending patent when it is not, and does so with the intent of deceiving the public, "shall be fined not more than $500 for every such offense."

It also provides that any person may sue for the penalty, regardless of whether or not such a person is personally harmed. Finally, it allows the suing person to receive half of the recovery from the suit, with the remainder going to the government.

In a case against Solo Cup Company ("Solo"), Matthew Pequignot, a licensed patent attorney, sued Solo, the well-known maker of many disposable cups, lids, plates, bowls and utensils, for falsely markings its products with two expired patents, U.S. Patent No. RE28, 797, entitled "Lid," and U.S. Patent No. 4,589,569, entitled "Lid for Drinking Cup," and for including the phrase "This product may be covered by one or more U.S. or foreign pending or issued patents" on products that were not protected by any patent or pending patent application.

As a qui tam relator he was able to bring the case against Solo and win.

Individuals who have chosen to research expired or invalid patent markings and who properly file qui tam actions may obtain financial gain by suing product manufacturers who continue to mark their products with expired patents.

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