Intellectual Property – Qui Tam Action – False Patent Marking – Expired Patent — Leahy-Smith America Invents Act – Retroactive – Constitutional – No Vested Interest
By North Carolina Lawyers Weekly Staff
Published: June 4,2012
Slack v. Bon Aqua International, Inc. Plaintiff’s qui tam complaint alleges that defendants marked certain products and related product packaging with expired (but previously valid) patents in violation of 35 U.S.C. § 292(a). However, during the pendency of this action, the Leahy-Smith America Invents Act became law, and § 292(c) now states, “The marking of a product … with matter relating to a patent that covered that product but has expired is not a violation of this section.” Moreover, the Act applies retroactively to cases pending on the date of the Act’s enactment.