Since December, plain-tiffs have sued nearly 150 companies for false patent marking, charging that packaging for their products includes references to expired or, in a few cases, inapplicable patents. Among the allegedly mismarked goods: Revlon mascara, Pfizer Inc’s Advil, Procter & Gamble’s Gain laundry detergent — even Wham-O’s Frisbee.
While patent laws have long permitted such claims, those claims have almost always involved one business suing another — despite a qui tam provision in the laws that lets citizen whistle-blowers sue. The dynamics shifted in December, when the U.S. Court of Appeals for the Federal Circuit dramatically upped the potential bounty for false-markings claimants. Up until that point, plaintiffs could collect no more than $500 for a false marking on a given product, no matter how many individual units bore the mark in question.
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