When something hits him on the head, Chicken Little gets an epiphany, and he runs to warn the king that the sky has commenced to falling. Converts rally to his cause. A great cry goes up in the land. And fear stalks the streets.
The sky hasn't fallen at all, of course. Just an acorn.
Kind of the same thing happened not long ago after the Federal Circuit ruled that damages in false patent marking cases could, in theory, total billions of dollars — up to $500 per item that displayed a false patent marking. See "False Patent Marking Gets Fine 'Per Article', Federal Circuit Rules", Dec. 29, 2009.
You can see a good example of the response in "Trolls Target Patent Markings with a Trillion Dollar Lawsuit", Mar. 1, 2011.
Yesterday, the Federal Circuit did something to quell the hyperventilating. It issued a writ of mandamus telling a district court to require a false patent marking plaintiff to plead the "fraudulent intent" element of his claim "with particularity" under Rule 9(b). In re BP Lubricants USA Inc., Misc. No. 960 (Fed. Cir. Mar. 16, 2011). The ruling will make pleading a case under 35 U.S.C. § 292 harder and winning a motion to dismiss more likely. See, e.g., this.
Where in the false marking statute do you find this scienter element, you say? You don't, Blawgletter regrets to reply. It springs instead from judicial gloss — and pretty recent gloss at that. See Clontech Labs., Inc. v. Invitrogen, Inc., 406 F.3d 1347,1352 (Fed. Cir. 2005) (deeming the question of whether statute requires intent to deceive public "virtually an issue of first impression").
No doubt in the rush to get out a ruling that calms some of the false marking hysteria, the panel omits that bit of history. Which tells you something about how much the IP game involves inside baseball. But you knew that already.
[Bonus: Who remembers what happened to Chicken Little, Ducky Lucky, Turky Lurky, et al.? Lookie here.]