Robert Matthews: When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking

Robert Matthews discusses the law controlling false-marking suits when multiple plaintiffs sue for the same act of false marking. Matthews extrapolates the case-law to make two primary points: (1) a false-marking defendant cannot be subjected to multiple penalties for the same act of patent false marking; and (2) based on the first-to-file tradition, federal comity, and standing principles, the second-filed suit should be dismissed. 

Cite as Robert A. Matthews, Jr., When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking, 2010 Patently-O Patent L.J. 95 at www.patentlyo.com/matthews.falsemarking.pdf.

Comments

[John]

he nine-judge majority reaffirms that the written description requirement applies to original claims and that its scope and purpose are to be determined by examining the relevant Federal Circuit precedent. Indeed, but for the fact that it removes the uncertainty caused by the vociferous dissents in earlier written description opinions, the en banc opinion in Ariad could readily be framed as a non-event in the evolution of the written description requirement. However, the importance of removing the uncertainty about the existence of a written description requirement as applied to original claims should not be lightly dismissed. Before Ariad, the uncertainty channeled much of the scholarly conversation about the written description doctrine into a binary debate, pitting those who it applied to original claims versus those who believed that it did not. After Ariad, the stage is now set for greater participation in more nuanced conversations about the role that the written description requirement does and should play in curtailing patent protection. Ariad may end one facet of the debate over written description, but it would be a lost opportunity if Ariad were interpreted to end the debate over written description more broadly and cut off these more nuanced conversations.

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