Fletcher YoderThe District Court finds that the Harrington failed in qui tam action to demonstrate that CIBA Vision Corp. falsely marked the packaging of products since the product was not found to be an unpatented article but rather a physical embodiment of patented method claims.
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.