The Courts and Congress Take Aim at Patent False Marking Lawsuits
This week, the Court of Appeals for the Federal Circuit ruled that a complaint for false patent marking must provide specific facts from which the court can reasonably infer an intent to deceive the public, thus raising the bar to initiating such a suit. A conclusory statement that the defendant knew or should have known that a patent has expired is insufficient to meet this pleading requirement. As discussed below, this holding, along with previous court decisions, will likely significantly curtail the number of false patent marking suits filed. And if proposed legislative amendments to the false marking statute recently passed by the U.S. Senate become law, false marking lawsuits may become a thing of the past.
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By an overwhelming vote of 95-5 in favor of reforming U.S. patent laws, the Senate on March 8, 2011, passed S.23, the America Invents Act, originally dubbed the "Patent Reform Act of 2011" when it was introduced January 25, 2011. The bill, as amended, is now headed to the House where it is likely to be further amended when it reaches the House Judiciary committee (or replaced with a companion bill introduced in the House).[1](5).gif){kind=small}
Yesterday the Senate began debate on S.23, the Patent Reform Act of 2011, also referred to as the "America Invents Act" by its sponsor, Senator Patrick Leahy (D-VT), who spoke at length about the need for patent reform during his introductory remarks. Several Senators rose to voice 
