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PUBPAT Asks Supreme Court to Rule Part of Leahy-Smith America Invents Act Unconstitutional

NEW YORK -- August 1, 2013 -- The Public Patent Foundation today asked the Supreme Court to rule part of the Leahy-Smith America Invents Act of 2011 unconstitutional. Specifically, PUBPAT filed a petition for certiorari with the Supreme Court in Public Patent Foundation v McNeil-PPC, a case brought by PUBPAT in June 2009 against the manufacturer of Tylenol for falsely marking and advertising its acetaminophen products as patented, challenging the provision of the Leahy-Smith America Invents Act, passed in September 2011, that retroactively eliminated PUBPAT's standing to bring the case against McNeil. PUBPAT asked the Supreme Court to answer the following question, "Does the retroactive application of the AIA’s changes to the false marking statute to this case violate Petitioner’s Due Process under the Fifth Amendment?"

PUBPAT Executive Director, Dan Ravicher, made the following statement regarding the filing, "This case started when McNeil-PPC, a company affiliated with Johnson & Johnson, falsely marked and advertised its Tylenol brand acetaminophen as patented and "better than any store brand." The Patent Act for decades encouraged members of the public to pursue claims for false patent marking on the government's behalf, and that's exactly what PUBPAT did. But, years after the case was filed, Congress changed the Patent Act to eliminate the public cause of action, and retroactively undermine all the cases that had already been brought, like PUBPAT's. As members of Congress themselves conceded, there was no legitimate reason to retroactively punish plaintiffs who had brought such cases as a previous Congress wanted them to do. It was purely the result of lobbying and political targeting of such plaintiffs, which violates the Due Process clause of the Fifth Amendment. "
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