Back in February, the N.D of Ohio held that the qui tam provision of the false marking statute violated the Constitution’s “Take Care” clause.  Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc., 2011 WL 649998, *6-*7 (N.D. Ohio Feb. 23, 2011), vacated and adhered to by, 2011 WL 924341, *2-*4 (N.D. Ohio Mar. 14, 2011).  Since then several other district courts considering the issue held that § 292(b) does not violate the “Take Care” clause.  E.g., Simonian v. Allergan, Inc., No. 10 C 02414, 2011 WL 1599292, *4-*5 (N.D. Ill. Apr.28, 2011); Luka v. Procter and Gamble Co., 2011 WL 1118689, *5-*8 (N.D. Ill. Mar. 28, 2011); Public Patent Foundation, Inc. v. GlaxoSmithKline Consumer, Healthcare, L.P., No. 09 Civ. 5881(RMB), 2011 WL 1142917, *3-*4 (S.D.N.Y. Mar. 22, 2011); Hy Cite Corp. v. Regal Ware, Inc., No. 10–cv–168–wmc, 2011 WL 1206768 (W.D. Wis. Mar. 15, 2011). 

Joining the camp of Unique Products, the E.D. of Pa, in Rogers v. Tristar Products, Inc., No. 11-1111, 2011 WL 2175716, *10-*11 (E.D. Pa. June 2, 2011), concluded that the qui tam provision of § 292(b) does indeed violate the “Take Care” clause.  Contrasting the procedural differences between the protections afforded the federal government under the False Claims Act and the absence of similar provisions in § 292(b), the court determined that § 292(b) “provides no means by which the United States may control the initiation, prosecution, or termination of litigation commenced on its behalf.”  Id. at *10.  Holding the statute unconsititutional, the E.D. Pa court explained: “despite the external protections available, the United States is not able to effectively exercise even a basic degree of control over a section 292(b) relator’s case.  The relator, by bringing the suit, is the master of the suit and-unlike in the False Claims Act context-remains as such.  Indeed, unlike the rights it enjoys in False Claims Act qui tam litigation, the United States has no ability to (1) control the litigation by seeking dismissal or settlement over objection; (2) limit discovery in any meaningful way; or (3) take primary control over the litigation.  For these reasons, the Court finds that section 292(b) fails to provide ‘the Executive Branch sufficient control … to ensure that the President is able to perform his constitutionally assigned [duty]’ to ‘take Care that the Laws be faithfully executed.’  Consequently, the Court concludes that section 292(b) violates the Take Care Clause.”  Id. at *11.

For additional discussion on this topic see Robert A. Matthews, Jr., Annotated Patent Digest § 34:103.10 “Take Care” Clause.