On remand from the Federal Circuit, the U.S. District Court for the Southern District of Texas based a damages award for false patent marking on the highest selling price of the falsely marked products.
As previously reported herein, the Federal Circuit decision in Forest Group Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009) radically changed the legal landscape with regard to false patent marking under 35 U.S.C. §292, which prohibits the use of patent or patent pending designations “for the purpose of deceiving the public” and provides for a maximum penalty of $500 “for every such offense.” Prior to the Federal Circuit’s decision, courts typically treated the false marking of multiple units of a product as a single “offense”, thereby limiting damages to $500 per decision, however, in Forest Group, the Federal Circuit held that a fine must be imposed separately for each falsely marked product. The Federal Circuit did note that in some cases the appropriate measure of damages may only be a fraction of penny per article.