According to an article on IPWatchdog, Solo Cup "successfully rebutted the presumption of deceptive intent" in Pequignot v. Solo Cup Co. by seeking advice of counsel and taking the "good faith step of replacing worn out molds with unmarked molds."The Federal Circuit affirmed the grant of summary judgment by the district court.
This decision could halt the momentum qui tam suits have been gaining since the Forest Group decision, holding that the false marking penalty accessed is assessed per item marked. While merely denying knowledge of the false marking is not sufficient to rebut the presumption of deceptive intent, Solo Cup's showing here was fairly unremarkable and, thus, it looks like the bar has been lowered for rebutting the presumption with this decision.
In the absence of legislation reforming false marking suits, it also seems that this decision is indicative of a tough line being drawn by the Federal Circuit. It will be interesting to observe subsequent decisions by the CAFC on false marking and see if this tougher stance continues.
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