Frolow v. Wilson Sporting Goods Co.
There is no equitable doctrine of marking estoppel in patent law. Improper marking, however, may constitute a rebuttable extrajudicial admission that an article is covered by a patent.
There is no equitable doctrine of marking estoppel in patent law. Improper marking, however, may constitute a rebuttable extrajudicial admission that an article is covered by a patent.
The Federal Circuit holds that (a) products marked with expired patent numbers are “unpatented” articles under 35 U.S.C. § 292 and therefore falsely marked, and (b) such marking with knowledge that the patent is expired creates a rebuttable presumption of “intent to deceive the public.” However, this presumption is “weak” and can be easily rebutted.
Each article that is falsely marked with an intent to deceive constitutes a separate offense under 35 U.S.C. § 292.