Ohio District Court: False Marking Statute Violates Take Care Clause

The so-called False Marking Statute makes it illegal to put a patent number on a product that is not in fact patented.  The statute also allows private individuals to bring suit against an alleged offender in court.  This is true even though the statute is a criminal statute.  Criminal statutes are generally enforced by the government, not private parties.  There are a few statutes, however, that include so-called “qui tam” provisions that allow private individuals to sue defendants for criminal violations on behalf of the government.  The private plaintiff gets part of the criminal fine and the government gets the other part.  Usually these statutes (the False Claims Act, which criminalizes fraud against the government, may be the most prevalent of these kinds of laws) give the government some control over the private party’s suit.  The False Marking Statute, however, does not.  As the Ohio district court explained in the recent case of Unique Product Solutions v. Hy-Grade Valve, Inc., the law:

is unlike any statute in the Federal Code with which this Court is familiar.  Any private entity that believes someone is using an expired or invalid patent can file a criminal lawsuit in the name of the United States, without getting approval from or even notifying the Department of Justice.  The case can be litigated without any control or oversight by the Department of Justice.  The government has no statutory right to intervene nor does it have a right to limit the participation of the [private plaintiff].  The government does not have the right to stay discovery which may interfere with the government’s criminal or civil investigations.  The government may not dismiss the action.  Finally, the [private plaintiff] may settle the case and bind the government without any involvement or approval by the Department of Justice.

The court held that this unique arrangement violates the Take Care Clause of Article II of the Constitution, which requires the President to take care that the laws be faithfully executed.  How can the President take care of things when Congress has given private parties the right to enforce the statute?  I’m not sure if there really is anything in real life like the apocryphal “citizens’ arrest,” but this law would be the equivalent not only of a citizen’s arrest, but a citizen’s prosecution as well.  The decision seems right to me.

“Hat tip” as we say in the blogosphere, to Eugene Volokh.


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