On February 23, 2011, Judge Polster of the U.S. District Court for the Northern District of Ohio held that the qui tam provision of the false patent marking statute, 35 U.S.C. § 292, is unconstitutional because it violates the take care clause of Article II of the Constitution. The court granted the defendant’s motion to dismiss on these grounds in Unique Products Solutions, Ltd. v Hy-Grade Valve, Inc.
A qui tam statute allows a private individual to prosecute a claim on behalf of the government and receive part of any penalty imposed. Such statutes must pass constitutional muster and allow for the president to “take Care that the Laws be faithfully executed.” Simply put, this means that the executive branch must be able to exercise sufficient control over the litigation when the United States is a real party in interest. The false patent marking statute allows for any person to sue an entity believed to have falsely marked its products with an intent to deceive the public. Penalties recovered, up to $500 for each offense, are shared equally between the person bringing the suit and the United States.
Michael Best attorneys have experience defending claims asserted under 35 USC § 292 and are familiar with recent legal developments related to false patent marking.