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Careful With Patent Marking

False patent marking may be costly to potential patent holders following the recent Forest Group v. Bon Tool case.  Prior to the Forest decision, it was unclear how to apply the rule that a person falsely claiming patent protection should be fined up to $500 “per offence.”  In Forest, the Federal Circuit interpreted the phrase to mean “per article” since large quantities of falsely marked items have a larger impact on the market.  Since imposing a per article fine may lead to huge statutory fines in the case of smaller, mass-produced articles, the Court may revisit the issue.  Until then, those that falsely mark their products as patent protected do so at their peril.

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