Falsely Advertising Compliance With Patented Method Constitutes False Marking

Following a bench trial, the court found that plaintiff had engaged in false marking where it advertised that its fish products were produced in accordance with a patent to which plaintiff had a license, but where plaintiff did not follow the method described by that patent. "[Plaintiff] was aware that these advertisements were false in, at least one way: [plaintiff] never pre-cooled the [filtered wood] smoke down to 0º to 5º C before applying it to the tuna to be treated with [filtered wood smoke], as required by the [patent-in-suit]."

King Tuna v. Anova Food, 2-07-cv-07451 (CACD February 24, 2011, Order) (Wright, J.)