June 23, 2010 - We've blogged about false marking lawsuits at length, especially Pequignot v. Solo Cup Co. That false marking case could have cost Solo Cup Co. $5.4 trillion dollars, but ended up being dismissed.
Patent lawyer Matthew Pequignot originally filed a "qui tam" lawsuit against Solo in 2007, alleging that Solo's act of marking its disposable cups with expired patent numbers was a deliberate attempt to deceive the public. But the three-judge panel believed Solo's explanation that it was prohibitively expensive to replace the mold cavities on its thermoforming stamping machines every time a patent expired, so the company's policy was to replace expired patent numbers whenever a cavity needed replacing - generally every 15-20 years.
A district court dismissed the lawsuit, but Pequignot appealed, taking the case to the Court of Appeals for the Federal Circuit (the court that hears appeals on patent infringement lawsuits).
The appellate court agreed that the cups were falsely marked, but such false marking is only unlawful if done "for the purpose of deceiving the public."
"Rather than continuing to manufacture mold cavities with the expired patent markings," Judge Alan Lourie wrote, "Solo took the good faith step of replacing worn out molds with unmarked molds. Solo's leaving the expired patent numbers on its products after the patents had expired, even knowingly, does not show a 'purpose of deceiving the public.'"