False Marking Bares Its Teeth: The Federal Circuit Mandates Potentially Huge Per Article Damages Calculation
By Aslan Baghdadi and Gabriel S. Sukman
After eluding review by the Court of Appeals for the Federal Circuit for decades, a key provision of the false marking statute concerning the limits on available damages has finally been considered with arguably devastating consequences for haphazard marking practices. In Forest Group, Inc. v. Bon Tool Company, Case No. 2009-1044 (Fed. Cir. 2009), the court held that the false marking statute requires courts to impose penalties on a per article basis, overruling various other creative methods of calculating damages devised by several district courts. The Federal Circuit also relied upon its holding in Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347 (Fed. Cir. 2005), wherein the purpose of deceiving element in the false marking statute (quoted below) could be proven under an objective standard upon showing that the accused party did not have a reasonable belief that the articles were properly marked.