Markedly Low: An Argument to Raise the Burden of Proof for Patent False Marking

Abstract

The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can be found in courts' historical treatment of the false-marking statute, the legislative history and policy rationales underlying § 292, and analogous legal contexts. More crucially, the Due Process Clause of the Fifth Amendment mandates a higher burden of proof to protect the important interests at stake for false-marking defendants.