The New Trolls

Much has been written, of late, about so-called “patent trolls,” i.e. small patent owners with the temerity to sue large corporations for patent infringement.¹ Patent trolls allegedly buy patents with the sole purpose of enforcing them – the scoundrels!

Well, now there is a new kind of troll, the “marking troll,” which doesn’t have to even buy a patent! The marking troll sues companies which “mismark” their products – mark them with the number of a patent which doesn’t actually cover the product or, more often, the number of an expired patent.

The plaintiff in such an action – for arcane reasons known as the “relator” – may recover up to $500 per mismarked item but has to split the take with the federal government. The profit potential of such lawsuits is obvious and the number being filed is increasing daily. Indeed, some “relators,” such as Patent Compliance Group, Inc. and Bently A. Hollander, have already filed multiple suits.

Patent Compliance Group – the name makes them sound like they’re some sort of public service watchdog – filed three separate suits in one day. They appear to have developed a boilerplate form of complaint to facilitate filing, wherein they assert that the defendant – known as the “defendant” – “knew or reasonably should have known” that their mismarking “violated Federal patent marking laws” and that they “intended to deceive the public.”

Hollander, who has filed eight suits – at last count – has similarly standardized his complaints. In one case, however, he added an interesting twist. (Hollander v. B. Braun Medical, Inc.) He alleged that “Braun has taken steps to withdraw its mark from certain products when the patent expired, providing clear evidence that Braun knows the law and requirements that bear on the marking of products and the obligations on a product manufacturer not to falsely mark a product.” Yes, indeed, he points to Braun’s efforts to comply with the law as evidence of their evil intent! Well, you’ve got to give Hollander credit for chutzpah, if not for logic.

THE LESSON TO BE LEARNED: If you mark patent numbers on a product, make sure they’re correct; for everyone else, a mismarked product is a money-making opportunity.

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¹ When large patent owners sue for patent infringement, they are known simply as “plaintiffs.”

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