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http://ssrn.com/abstract=1599902
 
 

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Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marking


Laura N. Arneson


University of Minnesota - Twin Cities - Minnesota Law Review

September 10, 2010

Minnesota Law Review, Vol. 95, 2010

Abstract:     
The false marking statute was designed to prevent products from being labeled with patents that do not apply to them, but the Federal Circuit recently extended its reach to prevent labeling products with expired patent numbers. This decision has spurred litigation by third parties against the makers of articles covered by expired patents. If this litigation continues, it will create incentives for manufacturers not to mark their products, contravening the public notice function of the patent act. This Note argues that articles covered by now-expired patents should not be considered unpatented articles for the purposes of the false marking statute. Allowing continued labeling after expiration of the patent is consistent with judicial precedent and the policies underlying the false marking statute. The Federal Circuit or Congress should act to exclude labeling articles covered by valid but now-expired patents from being false marking. This restriction would prevent the development of incentives not to mark, avert exploitative litigation, and limit the enforcement of the false marking statute to violations that have the potential to cause serious harm to the public.

Number of Pages in PDF File: 39

Keywords: patents, false marking, expired

JEL Classification: 034, K11

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Date posted: May 4, 2010 ; Last revised: February 1, 2014

Suggested Citation

Arneson, Laura N., Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marking (September 10, 2010). Minnesota Law Review, Vol. 95, 2010. Available at SSRN: http://ssrn.com/abstract=1599902

Contact Information

Laura N. Arneson (Contact Author)
University of Minnesota - Twin Cities - Minnesota Law Review ( email )
229 19th Ave. South
Minneapolis, MN 55455
United States
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