Well folks, it seems that the false patent marking statute is constitutional after all. Hollander v. Ranbaxy Laboratories Inc.
Hollander, a well-known pain in corporate behinds, sued Ranbaxy, claiming it had marked certain dermatology products with expired patent numbers. (They actually had committed this heinous crime.) Ranbaxy argued that the statute in question – that’s 35 USC §292(b) – is unconstitutional because it fails to afford the Executive Branch of the government, i.e. the President, sufficient control over litigation which clearly intends to benefit the government. As if the President was really going to get involved with this nonsense.
Anyway, after noting that the question of the statute’s constitutionality had been considered by 12 other courts, the judge opted to go with the majority, which had held, by a score of 10-2, that it is constitutional.
That, however, did not mark the end of the matter. The Court noted that legislation now pending would require that false marking plaintiffs have suffered a competitive injury in order to have standing to sue, a provision that would apply retroactively to all pending suits. Hollander admittedly cannot show any competitive harm. The Court thereupon stayed Hollander’s suit, to allow passage of this legislation. This will, in the Court’s words, “prevent the parties from incurring the unnecessary costs of continued litigation.”
THE LESSON TO BE LEARNED: A Court can generally find a way to have its way – keep that in mind when considering the filing of an unpopular suit.
I agree that the false patent marking statute is constitutional, but also agree that the competitive injury requirement is a good idea; it could provide an effective way to deal with this silliness that helps give patent litigation a bad name.