False Marking in the Wake of the Federal Circuit’s Decision in Bon Tool

Abstract

Section 292 of the Patent Act provides penalties for false patent marking. Until recently, court generally interpreted the statute as providing a maximum $500 fine for each decision to falsely mark an article. Forest Group, Inc. v. Bon Tool Co., a recent decision by the Court of Appeals for the Federal Circuit, held that Section 292 should be interpreted to require a fine of $500 per article marked. This has led to a large increase in qui tam false marking complaints and to proposals to legislatively overrule the Federal Circuit's decision. This article argues that the Bon Tool decision was proper. It correctly interpreted the current patent Act, and it furthers the goal of protecting consumers and competitors from falsely marked articles.