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Congressman Bob Latta (R- Bowling Green) recently introduced H.R. 6352, the Patent Lawsuit Reform Act of 2010.

Under Section 292 of the Patent Act, marking a product with an expired patent number, or inapplicable patent number, is a violation of this law.  Section 292 provides that anyone who does so with the intent of deceiving the public shall “be fined not more than $500 for every such offense.”  

In December 2009, the U.S. Court of Appeals for the Federal Circuit Court issued Forest Group v. Bon Tool Company, and interpreted Section 292 to require a penalty of up to $500 for every product that was falsely marked.  The Federal Circuit Court stated that this calculation is mandated by the vague language of the statute.  The Forest Group decision soon thereafter provided a spike in false patent marking lawsuits nationwide, filed by plaintiffs who are targeting defendants who sell thousands of products marked with expired patent numbers.  

If passed, H.R. 6352 would strengthen the vague language to revert back to the pre-Forest Group decision and assess one $500 fine if found guilty of deceiving the public under Section 292 and not allow for the interpretation of being fined for each product on the market.  The legislation will also require the individual bringing the lawsuit to have suffered a competitive injury as a result of the violation.

“Because of the Forest Group decision, this legislation is now needed to help companies fend off frivolous lawsuits and strengthen current law.  During this time of economic uncertainty, companies should not have to worry about expending additional resources on lawsuits based on one court’s interpretation of current law,” Latta stated after introducing the legislation.  

H.R. 6352 has been referred to the House Judiciary Committee.