Sticks and Stones
Why is it that whenever Corporate America gets caught doing something improper, the companies and their attorneys resort to name calling and finger pointing? It is happening now, in the context of lawsuits filed for false patent markings. Here is a blog post from an attorney trying to circle the defense wagons, using the common rallying cry of “patent trolls,” as if the people enforcing the laws are the bad guys and the people breaking them are the good guys. It is illegal for companies to mark products with patents that do not apply. There is a federal statute on this subject, and the statute is pretty clear: it is illegal to mark a product with a patent number on an unpatented article, or to use the phrase “patent applied for” or “patent pending” when no patent application is actually pending for the product.
Patents play an important role for many business, and for many inventors and entrepreneurs. No one disputes this reality. But proper marking is a fundamental bedrock of the patent system, and is essential to the entire patent system – it is not lipstick, it is not a lawyerly game of gotcha, it is, perhaps, the whole point.
Still, companies continue to mark products with patents that do not apply, or with patents that expired long ago. This is illegal, and it is anti-competitive, anti-consumer and anti-innovation. How do we stop this conduct? How are consumers protected? I mean, the U.S. Patent Office can’t possibly monitor all of the products all across the country. Fortunately, the statute allows private citizens to bring what are known as qui tam actions (otherwise known as whistleblower lawsuits) on behalf of the government, and the courts can impose fines of up to $500 for every offense. This is no legal technicality. This is the law. The U.S. Government has filed briefs in support of the law and defending its constitutionality–here is a copy of one of the papers the government has filed in support of the statute–and public interest groups also have weighed in with their support of the law as pro-consumer.
What does corporate America do when it is caught? It calls names. It forms task forces to respond to the lawsuits. The plaintiffs in these cases are now “patent trolls,” as if they did something wrong. Really? That seems backwards. Perhaps those companies falsely marking products with inapplicable patents should spend less time being mad at those who catch them, and more time on properly managing their patents in the first place. If they want the lawsuits to stop, then the answer is easy: follow the law. Until then, sticks and stones may break our bones, but calling names won’t stop the lawsuits.
