On December 28, 2009, the Federal Circuit finally construed the statutory fine for falsely marking an unpatented article with a U.S. Patent Number under 35 U.S.C. 292 (False Marking). In particular, the Federal Circuit found that a party that falsely marks a product as “patent pending” or having a patent shall be liable up to $500 per each article manufactured. As indicated in the Federal Circuit’s decision (see below), the court has the discretion of as to the amount of the penalty which could be “a fraction of a penny per article” for mass-produced articles. 35 U.S.C. 292 states the following:
35 U.S.C. 292 False Marking.
(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words "patent," "patentee," or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or 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 the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public – Shall be fined not more than $500 for every such offense.
(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.
See Court Decision: Forest Group, Inc. v. Bon Tool Co. 2009-1044 (Patent False Marking Case)