Squeezing the Juice Out of Patent False Marking Claims

Squeezing JuiceRogers v. Tristar Products, Inc., Nos. 2011-1494, -1495 (Fed. Cir. May 2, 2012) (Judges Bryson, Schall, and Prost) (per curiam) (nonprecedential order)

It’s been a while since we’ve had a false marking case at the Federal Circuit. That’s probably due to the America Invents Act’s (AIA) amendments to the false marking provision, which took effect the day President Obama signed the bill. Under the new law, private individuals can only bring suit for false marking if they have suffered “competitive injury.”

Rogers had sued Tristar for falsely marking its Power Juicers. His false marking appeal was pending when the AIA was enacted, and he conceded that he couldn’t meet the new “competitive injury” requirement. The Federal Circuit dismissed his appeal as moot. Rogers asked the court to reconsider—this time arguing that the new provision violates his constitutional rights under the Takings Clause of the Fifth Amendment. In Rogers’ eyes, his lawsuit was his “property” from the moment he filed the complaint in his case. So, according to Rogers, the AIA’s amended false marking provision, which eliminated his cause of action, improperly “took” his property. Rogers also argued that the new law violated the Due Process Clause because companies like Tristar would get away with false marking and stifle innovation as a result.

Rogers’s arguments tasted sour to the Federal Circuit. The court said that Congress can change the law whenever it wants and that the Supreme Court decided a long time ago that a pending lawsuit isn’t “property.” The court concluded that Rogers just disagreed with Congress’s policy decision—not that Congress had actually acted irrationally. So, the court didn’t agree that the new provision caused any constitutional issues.

Photo credit: davharuk

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