As I discussed earlier, a cottage industry has developed in the patent community of plaintiffs asserting, on behalf of the Government, false marking claims against defendants who are marking their products with expired patents. One of the key cases to kick this frenzy off was a patent lawyer's attempt to recover damages from Solo Cup for distributing cups that were marked with expired patents. I briefly discussed this matter here and here.
...such an award to the United States [which would be half of the entire damage award] of approximately $5.4 trillion, would be sufficient to pay back 42% of the country's total national debt.
...an article covered by a now-expired patent is 'unpatented.' As the district court pointed out, '[a]n article that was once protected by a now-expired patent is no different [from] an article that has never received protection from a patent. Both are in the public domain.
When a patent expires you don't have to take the old number off. However, I'm going to do a little research to see if the situation is different when adding an already expired number to a product. My gut fee[ing] is that as long as the patent claims would have covered the product, there isn't a problem.
The false marking of a product with a patent number does create liability for the offender. However, it appears liability hinges on the 'intent to deceive the public.' Best case scenario is to remove the number, if possible. If not, it is important that Solo not further any unintentional falsity in product literature or the like. If you want to discuss, please give me a call.
Thus, mere knowledge that a marking is false is insufficient to prove intent if Solo can prove that it did not consciously desire the result that the public be deceived.
Such evidence rebuts the presumption of deceptive purpose, as Solo's actions indicate its good faith. Solo did not state on its packaging that any product was definitely covered by a patent, and it provided the consumer with an easy way to verify whether a specific product was covered; the consumer could 'contact www.solocup.com' for details.