AmiCOUR IP Group News and Opinions

Lightning Strikes:
False Marking Trolls
Ruled Unconstitutional

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February 24, 2011 - In Unique Product Solutions v. Hy-Grade Valve a Northern District of Ohio judge has found the false patent marking statute unconstitutional under the Article II Take Care Clause, which requires that the government maintain "sufficient control" when delegating law enforcement functions to private citizens. False marking plaintiffs are not required to contact the Department of Justice before filing a complaint. The stare decisis came from the Supreme Court opinion in Morrison v. Olson, 487 U.S. 654 (1988) noting a requirement that the Executive Branch must have "sufficient control" over litigation in which the United States is the real party in interest.  The judge also  noted the financial incentive of plaintiffs to who may benefit from extraordinary penalties for products which may sell for very low prices, writing: "It is therefore essential that the government have control over when such cases are brought, and most importantly, how they are settled. Such decisions should be made by government attorneys who have no financial stake in the outcome of the litigation or settlement, not by private parties motivated solely by the prospect of financial gain." PACER records revealed a multitude of cases filed by Unique Product Solutions.  Scandinavian folklore held a belief that lightning strikes scare away trolls. Time will tell if this was a fatal strike.  Read the Order.