§ 292. False marking

Statutory text

Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words “patent,” “patentee,” or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public; or

Whoever marks upon, or affixes to, or uses in advertising in connection with any article, the words “patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public—

Shall be fined not more than $500 for every such offense. Only the United States may sue for the penalty authorized by this subsection.

A person who has suffered a competitive injury as a result of a violation of this section may file a civil action in a district court of the United States for recovery of damages adequate to compensate for the injury.

The marking of a product, in a manner described in subsection (a), with matter relating to a patent that covered that product but has expired is not a violation of this section.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1952
July 19, 1952, ch. 950, 66 Stat. 814 · 66 Stat. 814
Enacted · 35 U.S.C. § 292
July 19, 1952, ch. 950, 66 Stat. 814
Source evidence
Code source credit
July 19, 1952, ch. 950, 66 Stat. 814
1994
Pub. L. 103–465 title V § 533(b)(6) · 108 Stat. 4809
1. Substituted · 35 U.S.C. § 292(a)
  Pub. L. 103–465, in first par., substituted “used, offered for sale, or sold by such person within the United States, or imported by the person into the United States” for “used, or sold by him”
2. Substituted · 35 U.S.C. § 292(a)
  Pub. L. 103–465, in first par., substituted “made, offered for sale, sold, or imported into the United States” for “made or sold”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 103–465, in first par., substituted “used, offered for sale, or sold by such person within the United States, or imported by the person into the United States” for “used, or sold by him” and “made, offered for sale, sold, or imported into the United States” for “made or sold”.
Enacted provision · exact public law section
(6) Section 292(a) of title 35, United States Code, is amended— (A) by striking “used, or sold by him” and inserting “used, offered for sale, or sold by such person within the United States, or imported by the person into the United States”; and (B) by striking “made or sold” and inserting “made, offered for sale, sold, or imported into the United States”.
2011
Pub. L. 112–29 § 16(b)(1) · 125 Stat. 329
Inserted · 35 U.S.C. § 292(a)
Pub. L. 112–29, § 16(b)(1), inserted at end “Only the United States may sue for the penalty authorized by this subsection.”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 112–29, § 16(b)(1), inserted at end “Only the United States may sue for the penalty authorized by this subsection.”
Enacted provision · exact public law section
(1) Civil penalty.— Section 292(a) of title 35, United States, Code, is amended by adding at the end the following: “Only the United States may sue for the penalty authorized by this subsection.”.
Effective date note
Pub. L. 112–29, § 16(b)(4), Sept. 16, 2011, 125 Stat. 329, provided that: “The amendments made by this subsection [amending this section] shall apply to all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act [Sept. 16, 2011].”
2011
Pub. L. 112–29 § 16(b)(2) · 125 Stat. 329
Amended · 35 U.S.C. § 292(b)
Pub. L. 112–29, § 16(b)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.”
Source evidence
Code amendment note
Subsec. (b). Pub. L. 112–29, § 16(b)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.”
Enacted provision · exact public law section
(2) Civil action for damages.— Subsection (b) of section 292 of title 35, United States Code, is amended to read as follows: “(b) A person who has suffered a competitive injury as a result of a violation of this section may file a civil action in a district court of the United States for recovery of damages adequate to compensate for the injury.” .
Effective date note
Pub. L. 112–29, § 16(b)(4), Sept. 16, 2011, 125 Stat. 329, provided that: “The amendments made by this subsection [amending this section] shall apply to all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act [Sept. 16, 2011].”
2011
Pub. L. 112–29 § 16(b)(3) · 125 Stat. 329
Added · 35 U.S.C. § 292(c)
Pub. L. 112–29, § 16(b)(3), added subsec. (c)
Source evidence
Code amendment note
Subsec. (c). Pub. L. 112–29, § 16(b)(3), added subsec. (c).
Enacted provision · exact public law section
(3) Expired patents.— Section 292 of title 35, United States Code, is amended by adding at the end the following: “(c) The marking of a product, in a manner described in subsection (a), with matter relating to a patent that covered that product but has expired is not a violation of this section.” .
Effective date note
Pub. L. 112–29, § 16(b)(4), Sept. 16, 2011, 125 Stat. 329, provided that: “The amendments made by this subsection [amending this section] shall apply to all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act [Sept. 16, 2011].”

5 of 6 references resolved to an enrolled provision · 1 partial

Notes

Historical and Revision Notes

Based on Title 35, U.S.C., 1946 ed., § 50 (R.S. 4901).

This is a criminal provision. The first two paragraphs of the corresponding section of existing statute are consolidated, a new paragraph relating to false marking of “patent applied for” is added, and false advertising is included in all the offenses. The minimum fine which has been interpreted by the courts as a maximum, is replaced by a higher maximum. The informer action is included as additional to an ordinary criminal action.

Editorial Notes

Amendments1994–2011 · 2 rounds

2011

Subsec. (a). Pub. L. 112–29, § 16(b)(1), inserted at end “Only the United States may sue for the penalty authorized by this subsection.”

Subsec. (b). Pub. L. 112–29, § 16(b)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.”

Subsec. (c). Pub. L. 112–29, § 16(b)(3), added subsec. (c).

1994

Subsec. (a). Pub. L. 103–465, in first par., substituted “used, offered for sale, or sold by such person within the United States, or imported by the person into the United States” for “used, or sold by him” and “made, offered for sale, sold, or imported into the United States” for “made or sold”.

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Pub. L. 112–29, § 16(b)(4), Sept. 16, 2011, 125 Stat. 329, provided that: “The amendments made by this subsection [amending this section] shall apply to all cases, without exception, that are pending on, or commenced on or after, the date of the enactment of this Act [Sept. 16, 2011].”

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–465 effective on date that is one year after date on which the WTO Agreement enters into force with respect to the United States [Jan. 1, 1995], with provisions relating to earliest filed patent application, see section 534(a), (b)(3) of Pub. L. 103–465, set out as a note under section 154 of this title.

Credits

1952–2011 · 3 acts

1952July 19, 1952, ch. 950, 66 Stat. 814
1994Pub. L. 103–465, title V, § 533(b)(6), Dec. 8, 1994, 108 Stat. 4990
2011Pub. L. 112–29, § 16(b)(1)–(3), Sept. 16, 2011, 125 Stat. 329.

Show as published

(July 19, 1952, ch. 950, 66 Stat. 814; Pub. L. 103–465, title V, § 533(b)(6), Dec. 8, 1994, 108 Stat. 4990; Pub. L. 112–29, § 16(b)(1)–(3), Sept. 16, 2011, 125 Stat. 329.)