Just getting up to motions for summary judgment (where you finally get to rebut that presumption) can easily be $500K.
That's an excellent point, and a little solace for me, since I'm in the camp that would prefer false marking to be more strictly enforced.
And your example about J&J is well-taken, but as you so aptly put it, "cry me a river". Huge consumer product companies like J&J are the rarity, they're at one end of the patent-marked product bell curve in terms of number of patents, variety of products, complexity of manufacturing and so forth. While most companies are sailing inflatable tubes, dinghies and yachts, they've got a fleet of aircraft carriers. The system provides flexibility, however, and they are not required to be marking their products with patent numbers. For a company like J&J there might be better ways of serving notice to their competitors about their patents. (I'm not sure about the notice validity of language of the type Solo Cup used for a while, "This product may be covered by one or more patents, check our web site for details", but if the courts were to say that's valid notice, then maybe they ought to switch to something like that.)
So put me in the "cry me a river" camp. If a big company can organize themselves to properly mark their products with their patents, they should be able to organize themselves to cease that marking when it becomes false. For any company that is serious about IP, processes for avoiding false markings should be in their manual of standard operating procedure.
Yep, thanks for the discussion, enjoying it. Back to work, though.
