Is It Illegal To Announce A Patent On Something After That Patent Has Expired?

from the we'll-soon-find-out dept

Mon, May 5th 2008 8:01pm — Mike Masnick

I'm sure many of you have noticed on various products a notice claiming that the object was covered by some patents, or that it had "patents pending." There are legal reasons for including such notices -- and it's illegal to falsely make such claims. So what happens when the patent expires and the maker of the goods still includes the notice? We're about to find out, as a patent attorney has sued some companies who continue to list expired patents on their products, claiming that this is illegal false marking of patent rights. While there may be practical reasons (the marking process was already in place) for continuing to announce the patent, it's troublesome because it's claiming monopoly rights that the holder does not have and may scare off others from making use of a public domain concept. In this age where so many patent holders view patents as important property, it's no surprise that they have trouble letting go once the patent expires and the concept is moved into the public domain.

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Filed Under: expired, patents, public domain

19 Comments

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inc, 5 May 2008 @ 11:16pm

umm.. ok
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Mike, 6 May 2008 @ 1:03am

hmm
Shouldn't there be a site that outs businesses like this?
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Jackie Aldridge, 6 May 2008 @ 1:12am

Should people show old patent numbers on items?
I say sure. It makes it easy to look up the patent and one moment's check or calculation will show the patent is out of date. But people are proud of their patents. Why shouldn't they still have bragging rights
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mermaldad (profile), 6 May 2008 @ 3:58am

Re: Should people show old patent numbers on items?
Bragging rights are fine, but if you're showing an expired patent number, it should be clearly marked as expired. Sure it's easy to look up a patent number and see that its expired, but most people won't. I could argue that it's okay to show patents that aren't yours or don't apply to the product because it's easy to look them up and figure out that they're bogus, but nearly everyone agrees that this is an unacceptable practice. Listing expired patents as if they were still active is only slightly less shady.
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Steve R. (profile), 6 May 2008 @ 5:29am

DRM Precursor
This points to a future concern with the use of DRM technologies. When a product that was previously "protected" (restricted) by a DRM technology enters the public domain, I seriously doubt that the product itself or the manufacturer would turn off the DRM technology so that it would freely be available.
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Peter Blaise (profile), 6 May 2008 @ 9:04am

I think they still own the patent, but the powers of the patent expire. So, it's accurate to say, for instance, "Pat. No. 485739854" and anyone looking that up will see the contents and note the expiration date, and then be able to use the contents of the patent without paying royalties. It's actually a SERVICE to list all patent numbers on the outside of a product where that patent is used inside the product as it gives everyone heightened access to what's inside. Also, this begs for others who do not own the patent to use the patent number on their products that incorporate the patent ideas, so "Pat. No. 23097275" just means what's inside, not that anyone owns anything or has "monopoly" rights. This is a good thing. Like ingredients on food packaging or automobile price tag listings. What's the problem? No one shut down their factory in fear because a competitor has a "Pat. No. 2435730475" on their product. They looked it up, just like we all can. Actually, they had their lawyers look it up. Good for everyone. The suing attorney is pursuing a hidden agenda, and is NOT representing me and my interests. Does anyone want to investigate and report on "...Washington DC patent attorney, Matthew Pequignot, filed at least two Section 292 lawsuits in the Eastern District of Virginia alleging false marking. These include Pequignot v. Solo Cup and Pequignot v. Gillette and P&G ..."
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oregonnerd, 6 May 2008 @ 10:25am

marking expired patents
It seems to me a relatively subtle--in legal terms, at least--attempt to discourage competition. This also makes me wonder about trade secrets and patents, but I'm honestly (a) too lazy and (b) unwilling to understand legalese today. If it weren't such an attempt, then the notice would say something like "See patent # xxxx for more information", or so it seems to me. I may be an innocent; definitely I've felt so in court a couple of times.
--Glenn
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nipseyrussell, 6 May 2008 @ 10:34am

re DRM precursor - you are a bit off there. I can put DRM on any product i want, even if it is in the public domain. i would just hen be selling a less valuable product, of course, and smart people would opt to take a DRM free version that would be legal to produce since its public domain. That said, death to DRM!
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Anthony Kuhn, 6 May 2008 @ 12:20pm

Expired patents and marks
I need to learn more about the implications of the "Patent pending" language as many products have this label on them. Like, what rights does a producer get with those words?
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larry, 6 May 2008 @ 4:23pm

being shoved out of a patent or squeezed ???
how does one go about trying to convince a court , that your ex partner has squeezed you from your own patent , where do you go for that info ???? how can you make that patent unvalid , for the one that really gave it to you were it hurts , i,d really like to know more info on that , on which site or even the number to make a complaint that would be investagated ??
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Christopher Smith, 6 May 2008 @ 4:55pm

Re: DRM Precursor
Of course, we're already seeing the initial fallout with Microsoft's disabling their DRM license servers and telling their customers "tough cookies". That's not even copyright expiration, it's breach of contract, in spirit even if they wiggled out of it in some Flyspeck 2 EULA.

It'll be interesting, though, to see how this plays out, especially considering the lawsuit over the blatantly false copyright "warnings" put on DVDs and CDs.
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Nasch, 7 May 2008 @ 8:01am

Re: DRM Precursor
Don't worry, nothing will ever enter the public domain again. Congress will see to that. Problem solved!
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walaw, 5 Jun 2008 @ 3:58pm

Re: Peter Blaise Comment 5/6/08
I disagree with Blaise's misunderstanding of patent law. Once a patent expires, the product is no longer patented. It is as if the product were never patented at all. Continuing to mark a product that is no longer patented is a violation of USC 35, sec. 292 ("False Marking"). False marking products is NOT a service to the public. It unfairly places the burden of proving the patent's validity on the public instead of on the patentee where it belongs. According to sec. 292, ANYONE can file a suit for false marking...you don't need to be an attorney or even an injured party. Companies that misuse and violate the patent laws that are established to protect all of us...are the ones that should be "investigated," not the attorney who files the suit. Marking products as patented or patent pending is a public "No Trespassing" sign...it is not a "Beware of Dog" notice that merely suggests, "be careful." Congress established the False Marking statute to keep inventors and corporations honest. Those who violate this statute are doing so to deceive the American people and to discourage open competition in the marketplace. Anyone who falsely marks their products to deceive the public is guilty and liable for damages...$500 per offense, with one-half going to the person suing and the other half going to the United States. Anyone who deceives us for monetary gain...should be hammered with a substantial fine. Punching them in the wallet is the only way to get their undivided attention.
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C. Falstad, 14 Dec 2008 @ 4:09pm

sec 292
25 U.S.C. Sec. 292 says ". . . with the intent to deceive. . ." Think of the practical side of marketing a product with a patent. How practical would it be to, on the day of expiration of a patent, pull all product on a shelf or in transit to change all the packaging and repackage it so the patent number would be deleted?
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Anonymous Coward, 9 Jan 2009 @ 6:16am

amazing. . .if this guy wins his case it may ruin companies that employ thousands of people. putting everyone out of a job. as if the unemployment rate isn't bad enough. . let's take the livelihoods of thousands of people away just so i can make a quick buck, bravo Mr. Pequignot! you are a noble minded individual!
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Anonymous, 14 Jan 2009 @ 4:00pm

Re: sec 292
The facts in Solo Cup are that the company has been knowingly marking with expired patent numbers for approximately 20 years (on many products). Separate from that, they are being brought to task for marking with language implying that certain products are patented when - in fact - no patent(s) covering the marked products ever existed at all.
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Anonymous Coward, 23 Mar 2009 @ 1:13pm

Here is a fake patent pending.
http://www.tammytadddesigns.com/shopping/pgm-more_information.php?id=79&=SID
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