Until just three days before New Year’s Eve, few in the patent community had even heard of a qui tam action and those that knew about the patent false marking statute understood that this was a de minimis anachronism of the nineteenth century, much like the right of the Director to “require the applicant to furnish a model of convenient size to exhibit advantageously the several parts of his invention” under 35 USC § 114.

No longer! Now, in the pending Solo Cup Lid Case, Pequignot v. Solo Cup, Fed. Cir. 2009-1547, a qui tam plaintiff seeks to enforce a “false marking” action against a cup lid manufacturer who sold 21 billion cup lids where his “crime” was to continue to mark patent numbers after their expiration. Under the new law of the Federal Circuit, a maximum penalty of $ 500 for each cup lid would amount to ten trillion dollars.

Qui Tam Actions at the Supreme Court: The Supreme Court has taken an interest in qui tam actions in Ortho Biotech Products v. United States ex rel. Duxbury, Supreme Court No. 09-654; there, the Court has asked the Solicitor General for a CVSG brief as to the position of the United States whether to grant certiorari.

Silence of the Lambs – Whither IPO, AIPLA, the ABA? It should be manifest that the major bar groups with their prestigious amici committees should be on top of all major Federal Circuit cases to prospectively deal with such breakthrough events as the sudden resurrection of the qui tam action in patent law. With, for example, 17,000 members in AIPLA and an ever larger staff, one may question how matters such as the Solo Cup Lid Case fall under its radar screen. It is incomprehensile that the patent owners that make up the Intellectual Property Owners Association have sat quietly on the sidelines of this debate.

The Many Ongoing Developments of the Qui Tam Police: Justin Gray and C. Edward Polk have been closely following the patent qui tam situation which is monitored on the Gray blog, www.GrayOnClaims.com.