Eastern District of PA Holds Qui Tam False Marking Statute Unconstitutional

by: Joseph R. Carnicella, intellectual property attorney with Picadio Sneath Miller & Norton, P.C.

In February 2011, the Northern District of Ohio determined that the Qui Tam False Marking Statute, 35 U.S.C. § 292, was unconstitutional under the Take Care Clause in Article II of the United States Constitution.  See our post on this decision.  On June 2, 2011, Judge Eduardo Robreno from the United States District Court for the Eastern District of Pennsylvania dismissed plaintiff’s qui tam action on the same constitutional grounds.  See Memorandum for a complete analysis of the legal issues by Judge Robreno.  This issue is expected to be resolved by the Federal Circuit following argument in FLMC v. Wham-O Inc. in July 2011.