False marking : CAFC Alert

CAFC Rejects the Doctrine of “Marking Estoppel”

| March 27, 2013

Frolow v. Wilson Sporting Goods Co.

March 15, 2013

Panel: Newman, Clevenger and Moore.  Opinion by Moore.  Concurrences by Clevenger and Newman.


The CAFC specifically rejected the doctrine of “marking estoppel” – which precludes a party that marks its product with a patent number from asserting that the product is not covered by the patent.  However, the CAFC held that patent marking evidence is “circumstantial” evidence of infringement that could be used to establish infringement or to raise an issue of material fact preventing summary judgment of non-infringement.

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Elimination of false marking actions does not violate the Due Process Clause of the U.S. Constitution

| January 3, 2013

Brooks v. Dunlop Manufacturing

December 3, 2012

Panel:  Newman, Prost, Moore.  Opinion by Prost.

Procedural Summary

Lawyer Brooks sued Dunlop under 35 U.S.C. § 292 for falsely marking a guitar string winder with the number of a patent that had both expired and been found invalid.  During the pendency of the law suit, Congress passed the America Invents Act (AIA) that, inter alia, eliminated false marking actions, except under very limited circumstances.

The trial judge therefore dismissed Brooks’ case, despite Brooks’ argument that the AIA’s elimination of false marking cases violated the Due Process Clause of the U.S. Constitution.  On appeal, the CAFC agreed with the trial judge and therefore affirmed his dismissal of the case.

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