On June 20, 2011, Judge Solis of the Northern District of Texas, in United States ex rel. Vandever v. Intermatic Manufacturing, upheld the constitutionality of the false marking statute, 35 U.S.C. § 292, which prohibits, among other things, the false marking of products with patent numbers, if done with the intent to deceive the public. A copy of the decision is available here.
Judge Solis upheld the constitutionality of the qui tam provision of the false marking statute, 35 U.S.C. § 292(b), which allows any person to file a lawsuit on behalf of the United States, against a “take Care” challenge under Article II of the United States Constitution. Judge Solis found that the qui tam provision did not offend the “take Care” clause of the Constitution because the United States retains “the control necessary to hold the civil statute constitutional.”