THE NEW PATENT TROLLS
Marking one’s products as patented by listing the associated patent number on the product or its packaging serves as constructive notice to potential infringers. It entitles a patentee to collect damages for infringement even if the infringer had no actual knowledge of the patent. It is also useful to support a plaintiff's willful infringement allegations (which in turn can trigger awards of treble damages). Finally, it may create additional consumer goodwill by suggesting that the marked product is innovative and by deterring would-be competitors. In short, any patent owner should rush to mark their products with “patent pending” or issued patent numbers, right? Not so fast!

In the month of February alone, nearly 60 separate suits were filed by a handful of qui tam plaintiffs alleging violations of the False Marking section of the Patent Act, 35 U.S.C. § 292. Riding on the wave of the recent Federal Circuit decision The Forest Group, Inc. v. Bon Tool Co. which stated that the penalty can be attached to each individual product falsely marked (as opposed to a line of products), this flurry of suits has all the allure a new kind of “non-practicing entity” patent litigation — one in which any individual may now file suit against any company for violations of Section 292, and attempt to recover potentially huge fees that are then split 50/50 with the U.S. government. And in this era of huge government deficits, don’t expect uncle Sam to come to the rescue and regulate to stop this unexpected flow of revenues!

Patent owners beware! Established companies who have invalid, abandoned, expired (or soon to expire patents will need to remove their marking diligently or face harsh penalties (up to $500/item). Similarly, emerging companies will want to make sure that they don’t affix the coveted “patent pending” seal too early on their goods and make sure they quickly remove it if their application is later abandoned or rejected. We advise legal counsels to sit down with their clients and review their marking procedure in light of the recent case law. They’ll thank you! 

LoL, BTW ... My Boss Is Monitoring Every Text That I Send, ;) The US Supreme Court on Monday in City of Ontario v. Qon leaps into the high-tech world of text messaging in a challenge with potentially huge implications for the privacy rights of senders and receivers and for workplace communications.

Colorado law sets new rules for Amazon, other online retailers. A bill signed into law by Colorado last month is adding a new twist to the debate over Amazon.com and internet sales tax. The law requires Amazon and other online retailers to inform Colorado residents how much they owe in sales tax on web purchases. 

"Litigation prenup" seeks to cap legal costs. Companies could soon be signing a "litigation prenup" before jumping into bed with one another, in a bid to limit fallout from subsequent disputes. 
72 Percent of Small to Medium-Sized Enterprises Plan to Maintain or Increase Foreign Patent Filings. In a recent U.S. IP Trends: Global Patent Protection in 2010 report, inovia surveyed 150+ U.S. companies to gauge the impact of the economic downturn on their global IP strategy and outlook for 2010.

PTO Proposes to Extend Provisional Applications to 24 Months Notwithstanding the fact the the patent statute provides that provisional applications expire 12 months after their filing date, the PTO published a request for comments in the Federal Register last week that would effectively extend the term of a provisional application to 24 months.

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