Fine for False Marking is Per Article, not Per Ocurrance

In THE FOREST GROUP, INC., v. BON TOOL COMPANY, et al., the Court of Appeals for The Federal Circuit ("CAFC") has held that under 35 USC §292, the fine for falsely marking an item as patented must be imposed on a per article basis, as opposed to a "per decision to mark" basis.  The defendants had continued to mark its construction type stilts as patented with its US Patent No. 5,645,515, even after a district court had held that its own devices and the accused devices did not infringe its patent.

The district court only awarded $500 in damages and the CAFC has now remanded the case to  the district court to determine the number of articles falsely marked by Forest after the district court's decision and the amount of penalty to be assessed per article.  The fine is discretionary with the court so it does not necessarily need to assess a fine of the maximum of $500 per article.  This could obviously be important in situations that involve a high volume of low cost products.