Clontech Labs, Inc. v. Invitrogen Corp., 263 F. Supp. 2d 780 (D. Del. 2005)

Patton Boggs IP litigation group achieved a victory on behalf of Clontech Laboratories on claims of false marking and Delaware Deceptive Trade Practices.  False marking cases brought under 35 U.S.C. § 292 are extremely rare, with only one being addressed by the Federal Circuit since the Court’s inception in 1982.

Penal in nature, the section includes as quasi-criminal punishment for persons who, with the intent to deceive the public, mark their product as patented while knowing it is not.  It requires that four key elements be established to prove violation, including intent to deceive the public – perhaps the most difficult to prove.  The District Court found that the Clontech team proved each element.