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Note: Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marking

By Laura Arneson. Full text here.

The false marking statute was designed to prevent products from being labeled with patents that do not apply to them, but the Federal Circuit recently extended its reach to prevent labeling products with expired patent numbers. This decision has spurred litigation by third parties against the makers of articles covered by expired patents. If this litigation continues, it will create incentives for manufacturers not to mark their products, contravening the public notice function of the Patent Act. The Note argues that articles covered by now-expired pat­ents should not be considered unpatented articles for the purposes of the false marking statute. Allowing continued labeling after expiration of the patent is consistent with judicial precedent and the policies underlying the false marking stat­ute. The Federal Circuit or Congress should act to exclude labeling articles covered by valid, but now-expired patents, from being false marking. This restriction would prevent the development of incentives not to mark, avert exploitative litigation, and limit the enforcement of the false marking statute to violations that have the potential to cause serious harm to the public.