A New York district court judge has explicitly disagreed with the Ohio judge who last month ruled that the Patent Act’s false marking statute is unconstitutional as violating the Take Care Clause that reserves the power to enforce laws to the Executive Branch of the government.
Specifically, the New York court ruled that the statute is civil in nature and not a criminal statute as the Ohio court had held. Therefore, the law does not give private entities and individuals the ability to exercise power that is properly reserved to the Department of Justice. The statute provides the Executive Branch with sufficient ability to assert its interests and to control such cases.
In the Ohio case, the government moved to intervene to defend the constitutionality of the law after the court’s initial ruling. The court reluctantly permitted the government’s motion while stating that the Justice Department had received sufficient notice of the constitutional challenge in the case at an earlier date and failed to intervene at that time. Nevertheless, the court permitted the motion, but maintained the statute’s unconstitutionality. The government had also argued that the statute is civil and not criminal in nature.
The government filed a notice of appeal in the Ohio case last week. This issue will need to be addressed by the Federal Circuit.