35 U.S.C. § 292

False marking

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(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 that 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. Only the United States may sue for the penalty authorized by this subsection.

(b) A person who has suffered a competitive injury as a result of a violation of this section may file a civil action in a district court of the United States for recovery of damages adequate to compensate for the injury.(c) The marking of a product, in a manner described in subsection (a), with matter relating to a patent that covered that product but has expired is not a violation of this section.(July 19, 1952, ch. 950, 66 Stat. 814; Pub. L. 103–465, title V, § 533(b)(6), Dec. 8, 1994, 108 Stat. 4990; Pub. L. 112–29, § 16(b)(1)–(3), Sept. 16, 2011, 125 Stat. 329.)Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., § 50 (R.S. 4901).

This is a criminal provision. The first two paragraphs of the corresponding section of existing statute are consolidated, a new paragraph relating to false marking of “patent applied for” is added, and false advertising is included in all the offenses. The minimum fine which has been interpreted by the courts as a maximum, is replaced by a higher maximum. The informer action is included as additional to an ordinary criminal action.

Editorial NotesAmendments

2011—Subsec. (a). Pub. L. 112–29, § 16(b)(1), inserted at end “Only the United States may sue for the penalty authorized by this subsection.”

Subsec. (b). Pub. L. 112–29, § 16(b)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “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.”

Subsec. (c). Pub. L. 112–29, § 16(b)(3), added subsec. (c).

1994—Subsec. (a). Pub. L. 103–465, in first par., substituted “used, offered for sale, or sold by such person within the United States, or imported by the person into the United States” for “used, or sold by him” and “made, offered for sale, sold, or imported into the United States” for “made or sold”.

Statutory Notes and Related SubsidiariesEffective Date of 2011 Amendment

Pub. L. 112–29, § 16(b)(4), Sept. 16, 2011, 125 Stat. 329, provided that: “The amendments made by this subsection [amending this section] shall apply to all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act [Sept. 16, 2011].”

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–465 effective on date that is one year after date on which the WTO Agreement enters into force with respect to the United States [Jan. 1, 1995], with provisions relating to earliest filed patent application, see section 534(a), (b)(3) of Pub. L. 103–465, set out as a note under section 154 of this title.

Notes of Decisions

Cited in 262 cases (34 in the last 5 years), 1955–2026 · leading case: Mamma Mia's Trattoria, Inc. v. The Original Brooklyn Water Bagel Co. Inc., 768 F.3d 1320 (11th Cir. 2014).

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Mamma Mia's Trattoria, Inc. v. The Original Brooklyn Water Bagel Co. Inc., 768 F.3d 1320 (11th Cir. 2014). · cites it 35× “Mamma Mia’s cited violations of 35 U.S.C. § 292 , which at that time provided, inter alia: (a) .”

Presidio Components, Inc. v. Am. Technical Ceramics Corp., 702 F.3d 1351 (Fed. Cir. 2012). · cites it 5× “Both ATC and Presidio challenge portions of the district court’s findings regarding ATC’s false marking counterclaim under 35 U.S.C. § 292 . ATC contends that the district court erred in declining to grant JMOL overturning the jury’s finding of no false marking before "October,…”

The Original Brooklyn Water Bagel Co., Inc. v. Bersin Bagel Grp., LLC, 817 F.3d 719 (11th Cir. 2016). · cites it 9× “The suit alleged violations of 35 U.S.C. § 292 , which at that time provided, inter alia-: (a) .”

Pequignot v. Solo Cup Co., 608 F.3d 1356 (Fed. Cir. 2010). · cites it 7× “The “false marking” statute, 35 U.S.C. § 292 , provides: (a) ... Whoever marks upon .”

Frolow v. Wilson Sporting Goods Co., 710 F.3d 1303 (Fed. Cir. 2013). · cites it 8× “False Mark- ing Statute, 35 U.S.C. § 292 . Marking estoppel cases explain that the rationale for the doctrine is to prevent harm to the public which might be caused by mismarking.”

Clontech Labs., Inc. v. Invitrogen Corp. (Formerly Life Tech., Inc.), 406 F.3d 1347 (Fed. Cir. 2005). · cites it 5× “I This appeal arises from a 1998 lawsuit filed by Clonteeh Laboratories, Incorporated (“Clonteeh”) against Invitrogen Corporation (“Invitrogen”) (formerly Life Technologies, Incorporated) alleging, inter alia, false marking under 35 U.S.C. § 292 . The patents involved in the…”

Brinkmeier v. BIC CORP., 733 F. Supp. 2d 552 (D. Del. 2010). · cites it 12× “(collectively, “defendants”) pursuant to 35 U.S.C. § 292 . 2 (Civ. No. 09-860, D.I.”

Hollander v. Etymotic Rsch., Inc., 726 F. Supp. 2d 543 (E.D. Pa. 2010). · cites it 13× “(“Defendant”) for its alleged violation of the false marking statute, 35 U.S.C. § 292 , in connection with its marking of certain ear *546 phones and earplugs with expired patent numbers.”

Vermont Agency of Nat. Resources v. United States Ex Rel. Stevens, 529 U.S. 765 (2000). · cites it 2× “§ 81 (providing cause of action and share of recovery against a person contracting with Indians in an unlawful manner); § 201 (providing cause of action and share of recovery against a person violating Indian protection laws); 35 U. S. C. § 292 (b) (providing cause of action and…”

Woods v. Empire Health Choice, Inc., 574 F.3d 92 (2d Cir. 2009). · cites it 4× “§ 201 , or who have falsely marked articles as patented, see 35 U.S.C. § 292 (b). We note at the outset that the Supreme Court did not list § 1395y(b)(3)(A) as among the statutory provisions authorizing qui tam actions when it recently considered whether such actions satisfy the…”

Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714 (E.D. Va. 2009). · cites it 12× “Pequignot (“Pequignot”) has filed this action for false patent marking under 35 U.S.C. § 292 . In the complaint, Pequignot alleges that defendant Solo Cup Company (“Solo”) falsely marked several of its products with expired patent numbers and improperly marked other products…”

Unique Prod. Solutions, Ltd. v. HY-Grade Valve, Inc., 765 F. Supp. 2d 997 (N.D. Ohio 2011). · cites it 11× “Before the Court is Defendant HyGrade Valve’s Motion to Dismiss Plaintiff Unique Product Solutions’ Complaint on the ground that the qui tam provision of *999 35 U.S.C. § 292 (b) is unconstitutional. (Doc.”

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— 35 U.S.C. § 292(b) — 1 case

Unique Prod. Solutions, Ltd. v. Hy-Grade Valve, Inc., 813 F. Supp. 2d 854 (N.D. Ohio 2011).

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