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Volume XI, Number 293

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A Federal District Court Rules That The Qui Tam Provision of the False Marking Statute is Unconstitutional

Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc. on February 23, 2011

Judge Polster of the U.S. District Court for the Northern District of Ohio held that the qui tam provision of the false patent marking statute, 35 U.S.C. § 292, is unconstitutional because it violates the take care clause of Article II of the Constitution.  The court granted the defendant’s motion to dismiss on these grounds in Unique Products Solutions, Ltd. v Hy-Grade Valve, Inc

qui tam statute allows a private individual to prosecute a claim on behalf of the government and receive part of any penalty imposed.  Such statutes must pass constitutional muster and allow for the president to “take Care that the Laws be faithfully executed.”  Simply put, this means that the executive branch must be able to exercise sufficient control over the litigation when the United States is a real party in interest.  The false patent marking statute allows for any person to sue an entity believed to have falsely marked its products with an intent to deceive the public.  Penalties recovered, up to $500 for each offense, are shared equally between the person bringing the suit and the United States. 

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume I, Number 60
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About this Author

S. Edward Sarskas, Michael Best Law Firm, Litigation Attorney
Partner

Ed serves as a trusted advisor and counselor to business clients in various stages of the dispute resolution process. Taking a creative and practical approach, he helps clients evaluate and manage risk, execute strategic initiatives, and resolve disputes. His strategic perspective extends beyond the dispute to his client’s overall goals and mission. He recognizes that his success is measured by his client’s ultimate success in the marketplace.

Ed’s practice includes complex litigation matters involving trademarks, patents, copyrights,...

414-223-2521
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