An article written by Buchanan Ingersoll & Rooney Intellectual Property attorneys Lynn J. Alstadt — a shareholder in the firm's Pittsburgh office — and Duane A. Stewart III — counsel in the firm's Pittsburgh office — was published in the November 2, 2010, edition of The Legal Intelligencer. In the article, titled "False Patent Marking After Stauffer v. Brooks Brothers," the two discuss how false marking claims are driving the growth of intellectual property litigation in the United States.
As Alstadt and Stewart explained, "There were about 175 new false marking cases filed in the third quarter of 2010, compared to no such cases having been filed in the third quarter of last year. The vast majority of those cases involve products being sold that bear an expired patent number. … Prior to 2010, allegations of false patent marking were most often made in suits between competitors, often as a counterclaim in a patent infringement suit. These suits are not being brought by competitors, but instead are being brought as qui tam suits by people hoping to profit from half of a $500-per-article bounty that is the maximum that may be obtained in a successful false marking action. The dramatic increase in these types of cases can be attributed to some recent decisions of the U.S. Court of Appeal for the Federal Circuit."
In the article, they go on to discuss those decisions, the responses by Congress and patent owners, and what lies ahead for this type of litigation.