The false marking statute, a once-obscure corner of patent law, is now in the limelight. This past year, false marking suits have increased by two orders of magnitude, largely as a result of courts interpreting the law in ways favorable to plaintiffs. This article argues that the statute, one of the few remaining examples of qui tam laws in the Anglophone world, is actually an atavism. It harnesses work on the economics of advertising to argue that recent moves to liberalize the law rest on flawed economic models, and may have anti-competitive effects. Finally, it suggests that technological changes have made the problem of “marking trolls” more dangerous, and vitiated many of the problems formerly associated with false marking. It suggests restoring the pre-2005 status quo, or in the alternative, modernizing the statute by, among other things, eliminating its qui tam nature.
- false marking,
- qui tam,
- false advertising
Available at: http://works.bepress.com/raghav_krishnapriyan/1/