US - CAFC: False marking statute applies on a per article basis

Forest Group, Inc. v. Bon Tool Co., United States Court of Appeals for the Federal Circuit, 28 December 2009, Case No. 2009-1044, with thanks to Willem Hoyng, Howrey

The CAFC held yesterday that the false marking statute (35 U.S.C. § 292) applies on a per article basis rather than a per offense basis. While statute allows for up to $ 500 for each offense, the court did note that the full $ 500 for each article might not be appropriate in cases involving mass-produced articles.

Section 292 provides a civil penalty for false marking of goods. It states in relevant part:

"Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public . . . Shall be fined not more than $ 500 for every such offense."

Read the CAFC opinion here.