Monday, March 7, 2011

False marking statute held unconstitutional

Regular readers of my blog are familiar with recent developments in false patent marking litigation. The Northern District of Ohio has added another development -- the statute has been found unconsitutional. (I've embedded the order below.) Procedurally, this is somewhat interesting to me. The defendant initially moved to dismiss for a number of reasons. The court held a telephone conference with the parties and, on its own perhaps, asked the parties to file briefs explaining the constitutionality of 35 U.S.C. 292(b) (the qui tam provision of the false marking statute). The court also required notice be provided to the U.S. Department of Justice so that the department (who is charged with enforcing the law) could express its views on the constitutionality of the false marking statute. Apparently, the DOJ did not file any brief.

After the invitation from the Court, the defendant filed a motion to dismiss, arguing that the qui tam provision of the statute violated the Appointments and Take Care Clauses of the U.S. Constitution. Specifically, the defendant argued that the qui tam provision didn't give the executive branch sufficient involvement in false marking litigation.

The Constitution's Take Care Clause provides that the President "shall take care that the Laws be faithfully executed." The Appointments Clause provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States." The Court found the false marking statute violated the Take Care Clause (the Court did not address the Appointments Clause, but suggested it would not apply to this situation).
The false marking statute lacks any of the statutory controls necessary to pass Article II Take Care muster. The False Marking statute essentially represents a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice
The Court granted defendant's motion to dismiss (with prejudice).

Notably (as recognized by the Court), the FLFMC, LLC v. Wham-O, Inc. case -- another false marking case -- is still pending before the Federal Court. One of the issues that has been preserved in that appeal is the constitutionality of the False Marking statute under the Take Care clause.

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