Actually, the new suit concerns allegedly expired patents on two New Merck products -- (i) a Dr. Scholl's Pillo® insoles allegedly now-expired patent, and (ii) a Claritin® allegedly now-expired patent.
These are both -- unsurprisingly -- legacy Schering-Plough products. The same plaintiff, Thomas Simonian, has sued dozens of companies (in federal District Court in Illinois, primarily), pointing out that each lists -- in the trade dress -- some version of "protected by US Patent No. XXXXXXX" when in fact, the referenced patent number has expired.
The suggestion of a patent is a barrier to competition -- and cannot be used fraudulently to discourage potential competitors from entering the marketplace with substitute offerings. That is the gravamen of suit -- that all these companies, Merck included, are engaging in unfair competition by marking their products with long-ago expired patent numbers.
The Chicago Tribune has it thus, today -- and here is the actual complaint against Merck (in PDF format):
. . . .The fine, as defined in the patent statute, "shall be" no more than $500 per offense. District courts have used different methodologies to calculate fines but most have interpreted the statute to limit the penalties to a single fine, no matter how many products were improperly marked, legal experts said. . . .
I'll keep an eye on this one, but it will likely require a repackaging of the offending goods, and a payment of damages -- with half of the money going to entities inside to the federal government, and half to the person bringing the suit. It is styled as a Qui Tam action, allowing a private recovery by the plaintiff, for what that's worth.
No comments:
Post a Comment