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Anonymous I agree. The "counting" was all over the map. That did not bode well for business expectations. The Fed Circuit had to resolve that issue, which they did, albeit with unflattering results. I had considered that the Court never liked the way the statute was written in the first place, and interpreted in the manner of Bon Tool just to get Congress to clean it up. (Just a thought) It's true that the prior interpretation left no room for incentive - a cost/benefit analysis at $500/false marking occurrence (rather than per widget) would justify doing nothing, especially if "intent to deceive" is so arduous to prove. I like the middle ground, if you will, proposed in the current legislation, which limits the cases to competitors, and where harm must be shown as in any other case of competitive damage.
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"recently invigorated with a correct court reading" Statutes are subject to interpretation. That's where the courts come in. This is a classic example of how changing interpretations, in relatively short period of time, affect business practices and expectations. The law wasn't "recently invigorated," it was re-interpreted. That is the Federal Circuit's purview; however, there can be draconian results when adverse ramifications of the new interpretation(s) aren't thought through. Solo Cup forced the Court to back-pedal and rely on "intent to deceive the public" more than it ever had to before. Then the deluge of False Marking suits brought in "enhanced pleading" requirements, that are tantamount to a Fraud pleading to remove the cases, if possible, at the pleading stages. The law is being re-interpreted as we speak at such a fast pace, one must ask was it really that "correct" to begin with?
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"Ya follow the law or not." A note on following the law - which is usually statutorily based, and then laced with judicially created doctrine. First, one must actually consider and state what the law really is. Not too long ago, it wasn't every widget marked, but the separate occurrences of false marking. Then, it became every widget. Next, the law required enhanced pleading (FRCP 9), which as we now know from yesterday, means with particularity that would generally preclude statements made "on information and belief," where there's really no "information" presented. Then, as we know, at least one district court (N.D. Ohio) has ruled the law unconstitutional under the Take Care clause of the US Constitution. So, follow the law that is subject to changing interpretations, and then, I guess, you are open game. It's really as simple (and as fair) as that.
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Mar 16, 2011