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Prohibiting false patent marking on various products and goods is not a new concept in intellectual property law. For the last 170 years, laws have been on the books to prevent individuals and manufacturers from deceiving the public, inventors, and other manufacturers into believing that an item or its design retains certain patent rights by law. But in passing the Leahy-Smith America Invents Act, a monumental piece of patent legislation on numerous levels, sweeping changes were made to long-standing false marking law and its concepts. This Comment takes a step back to explore the recent explosion of false marking litigation after the Court of Appeals for the Federal Circuit interpreted these long-standing principles of false patent marking law prior to the passing of the America Invents Act, which triggered a massive “false marking troll” revolution of sorts. It sorts out how this explosion of litigation came to be and analyzes these principles in conjunction with the constitutional provisions in which they were subsequently challenged by those warding off the trolls. With this background in mind, this piece then dives into the sweeping changes of false marking law that Congress invoked in passing the America Invents Act with an edge toward highlighting the caveats of these changes in relation to the act’s original and historical purposes. This Comment then attempts to provide the reader with additional fixes to current false marking law under the America Invents Act to address the law’s shortcomings, keeping in mind both the potential for future troll problems and the original purposes of the act. Overall, this writing looks to provide, if not concrete solutions to the law’s shortcomings in the false marking context, food for thought in the false patent marking arena and the new patent law reform paradigm.

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Northern Illinois University Law Review

Suggested Citation

Kevin Zickterman, Comment, Pa-‘trolling’ the False Marking Frontier: Giving Section 292 the Proper Makeover in Wake of the America Invents Act, 33 N. Ill. U. L. Rev. 187 (2012).

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