Patently-O reports that the Federal Circuit has rejected Brooks’ (in Ken Brooks v. Dunlap and US Government) challenge to the AIA’s retroactive elimination of his false-marking cause-of-action.

Pre-AIA law gave standing to “any person” to bring suit for alleged false marking with patent numbers that had expired or been invalidated. This resulting in a rash of suits by parties with no relation to the alleged false marker or any party harmed by the marking.

The AIA amended 35 U.S.C. ยง 292 to restrict private standing to only persons “who has suffered a competitive injury as a result of a [false marking] violation” and to apply to all cases “pending on, or commenced on or after, the date of the enactment of this Act.”

As a result of this amendment, the District Court dismissed Brooks case for lack of standing. Brooks appealed to the Federal Circuit, arguing that the retroactive nature of the amendment was unconstitutional. The Federal Circuit did not find his arguments persuasive and upheld the constitutionality of the retroactive application of the amendment.

“Read the full Patently-O post.(Brooks – Patently-O)”: