FLFMC, LLC v. Wham-O, Inc.

False Marking Whistleblower Suit

U.S. Chamber's Position: 

NCLC urged the Federal Circuit to hold that a federal false marking statute violates the "Take Care" clause of the Constitution. In this qui tam case, trial lawyers allege that a toy manufacturer marked its products with phrases referring to expired or irrelevant patents. NCLC argued in its brief that U.S.C. § 292(b) violates the Constitution by impermissibly delegating the executive branch's law enforcement function to private relators. NCLC warned that false-marking whistleblower suits are a new multi-million dollar cottage industry for the trial bar, with over 1,000 such suits filed in the last year alone.

Case Outcome: 

The Federal Circuit dismissed the case as moot because on September 9, 2011, Congress passed the America Invents Act, which eliminated the qui tam provision of the false marking statute.

Procedural History: 

Amicus brief filed 3/1/11. Oral argument held 7/7/11. America Invents Act passed 9/8/11. Dismissed 10/19/11.