As readers should have discerned from our previous blog entries on the subject, we strongly disapprove of the recent deluge of lawsuits brought under 35 U.S.C. §292, the so-called “false marking statute.” It is, therefore, with great pleasure that we report on a district court decision finding this statute to be unconstitutional. (Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc.) On a further happy note, we present some startling, and gratifying, statistics compiled by the fine folks at Mayer Brown LLP.

It had been opined that the decision in Stauffer, and the similar decisions in Shizzle Pop and WHAM-O, would bring an end, or at least a diminution, to the stream of “false marking” lawsuits. All of these cases were dismissed on the grounds that the plaintiff lacked standing to sue.

In the course of our extensive coverage of the spreading plague of patent false-marking suits, we opined that the courts were likely to focus on “standing” – or the lack thereof – as a means of reining in runaway trolls. Well, we were right. (Shizzle Pop, LLC v. Aviva Sports, Inc. et al. and United States of America, et al. v. WHAM-O, Inc.) (Yes, folks, a TWOFER.)

Just a couple of weeks ago, we wrote about the “new patent trolls” – the folks who seek to make a living out of suing product manufacturers allegedly guilty of “mismarking” their products, that is to say, marking the products with the numbers of expired patents or patents which do not cover the product on which they are marked.

While we hesitate to claim credit for it – notice the author’s becoming modesty – there is a clear and growing backlash to this new and rapidly growing industry.

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.