Law Commons^™

Optimal Fines For False Patent Marking, Thomas F. Cotter

Michigan Telecommunications & Technology Law Review

This Essay proposes that, in order to avoid imposing arbitrary (and perhaps unnecessarily large) fines for false patent marking, courts should seek guidance in the law of remedies for false advertising and copyright infringement. In particular, courts should attempt to approximate the social harm caused by actionable false marking by taking into account (1) the plaintiff's loss (if any) and the defendant's gain (if any) attributable to the false marking at issue; (2) the plausibility of substantial but less easily quantifiable harms to consumers and to nonparty competitors; and (3) the risks, on the one hand, of underdeterring statutory violations …