Richard A. Crudo · February 2012
80 GEO. WASH. L. REV. 568 (2012)
The year 2010 was marked by an explosion of lawsuits from enterprising patent attorneys seeking to take advantage of the now-superseded false patent marking statute, which proscribed marking one’s product with a patent number when no patent existed. The statute’s qui tam provision allowed anybody to sue on behalf of the federal government to recoup the statutory fine, and the United States Court of Appeals for the Federal Circuit empowered such plaintiffs by increasing incentives to sue. To restore order, Congress passed the Leahy-Smith America Invents Act (“AIA”) in September 2011, which replaced the qui tam provision with a compensatory cause of action. The AIA abates exploitation of the false marking statute, but allows recovery only for a narrow class of individuals who directly compete with false marking violators. Moreover, it ignores the public harm inherent in false marking—false marking effectively removes products from the public’s possession, and therefore represents an interference with the public right of access to that which should be in the public domain.
To strike an appropriate balance between the need to redress the injury to this public right and the need to curb false marking litigation, this Note proposes that the AIA be amended to explicitly proscribe false marking as a public nuisance and to codify the special injury rule set forth in the Restatement (Second) of Torts, which would limit the cause of action only to those plaintiffs suffering an injury different from that suffered by the rest of the public. Additionally, the statute should be amended to allow plaintiffs who are unable to prove compensatory damages to recover statutory damages so as to maintain the proper balance between incentivizing false marking enforcement and curbing excessive litigation.
