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AIA impact on Product Marking

posted Feb 4, 2013, 2:18 PM by Robert Crownover   [ updated Mar 7, 2013, 8:35 AM ]
With Bon Tool opening the door for statutory damages of up to 500 dollars per infringing unit, and private actions under qui tam Patent Marking cases exploded and reached a high watermark with Solo Cup holding that knowingly marking a product with an expired patent gives rise to the rebutable presumption of intent to deceive.

The AIA has stemmed the tide and changed the law in this area. 

Under the AIA statutory damages can only be recovered by the Government, no longer under qui tam.
Under the AIA damages are limited to actual damages suffered from the false marking.
Also, under the AIA the cause of action for marking a product with an expired patent has been eliminated.