Heathcote Holdings Corp. v. Learning Curve Brands, Inc., No. 10 C 7799 (Kendall, J.).

I generally write about opinions issued by the Northern District, but the parties in this case recently filed their false patent marking settlement agreement. Because of the extreme interest in false marking cases over the last eighteen months, I am posting about the settlement. Plaintiff accused defendants of falsely marking various Thomas the Tank Engine toy trains and related products with two patents. In one instance, the alleged false marking appears to be based upon the omission of one number from the patent number — it read U.S. Patent No. 7,178,68 instead of 7,178,685.

Here are the highlights of the agreement:

• Defendants agreed to pay $85,000, with half mailed for overnight delivery directly to the Department of Justice.
• The agreement was subject to approval by Department of Justice’s Director of Intellectual Property Staff before becoming final, which was given with minor edits.
• The agreement released all false marking claims related to the two patents at issue, but did not attempt to waive any possible false marking by defendant as of the date of the agreement. Of course, it may be that the two identified patents were either defendants’ only patents or the only patents that defendant had marked products with. So, this term may effectively be a complete release of all possible false marking claims.
• Neither party admits or denies the constitutionality of the false marking statute.