Technology Law Source

Monthly Archives: February 2011

False Marking Qui Tam Provision Found Unconstitutional

As has been widely reported, there has been an influx of false marking cases hitting the courts over the past year based on 34 U.S.C. Section 292, the False Marking Statute.  That statute, loosely translated, makes it an offense to mark a product or use in advertising a  patent number or the words "patent," "patent pending," or any other indication that a patent applies to a product when it in fact does not.  This includes situations in which a company for years correctly marked a product with a patent number, but then continued so marking the product after the expiration of the patent.  The statute states that a person responsible for such an offense shall be fined not more than $500 for every such offense. 

The statutory language also includes a somewhat uniquely simplistic qui tam provision providing that "Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States."  While the qui tam provision of the False Marking Statute was enacted in 1952, the 2009 Forest Group , Inc. v. Bon Tool Company decision made the qui tam actions more financially lucrative—and set the groundwork for a cottage industry of false marking litigation—by holding that violators of the False Marking Statute face a $500 fine for each article improperly marked rather than a $500 fine for a single decision to improperly mark multiple articles. 

The February 23, 2011 decision in Unique

Book Launch: International Handbook on Regulating Nanotechnologies

If you’re near Monash University on Friday March 11, you might want to stop by the Monash University Law Chambers (at 472 Bourke Street in Melbourne) to attend the launching party for "International Handbook on Regulating Nanotechnologies" published by Edward Elgar Publishing – wonder if that means there’ll be some "Pomp and CIrcumstance" ?

The International Handbook, edited by

 Graeme A. Hodge, Director, Monash Centre for Regulatory Studies, Faculty of Law, Monash University, Australia, Diana M. Bowman, Senior Research Fellow, Centre for Health Policy, Programs and Economics, Melbourne School for Population Health, University of Melbourne, Australia and Andrew D. Maynard, Director, Risk Science Center, University of Michigan School of Public Health, US

discusses four areas of concern:

Part 1: Concepts and Foundations

Part 2: Framworks for Regulating Nanotechnologies

Part 3: Case Studies in Regulating Nanotechnologies and Nano-Products

Part 4: The Future Regulatory Landscape

Part 5 is a concluding chapter by the three editors referred to above.

John Monica, an attorney and noted author on nanotechnology himself, notes on the back cover of this treatise

`The Handbook’s 26 chapters do a remarkable job of capturing the last decade of commentary and policy perspective regarding nano-related environmental health and safety regulatory issues, along with providing some fresh perspectives on where its future might be headed. It is an invaluable primer for those wanting to hear about the issue from some of the most authoritative voices in the area.’  

To RSVP, please e-mail Please RSVP by Thursday March 3, 2011…

HHS imposes 7 Figure Fine for Breach of HIPAA; Soon to be the Norm?

In case you missed the OCR announcement late yesterday afternoon, the Department of Health and Human Services announced that it was imposing a civil money penalty of $4.3 million dollars against Cignet Health for various violations of HIPAA.   These penalties were based upon the violation categories and increased penalty amounts authorized by the HITECH Act; discussed further here.  The violations stemmed in part from Cignet’s failure to provide 41 patients access to their own medical records as required under 45 C.F.R. § 164.524.   In addition to the huge amount of the fine, according the HHS, this action marks the first civil money penalty issued by HHS for HIPAA Privacy Rule violations.  This action could indicate a renewed push by HHS to enforce violations of HIPAA and utilize its heightened penalty schedule and enhanced enforcement powers provided under the HITECH Act.  Could this be the new norm for HIPAA enforcement?  Only time will tell.…

Three US-UK Consortia Receive EPA Grants for Nanotech Research

On February 17 2011, the EPA, in conjunction with the Consumer Product Safety Commission (CPSC) and the UK’s Natural Environmental Research Council (NERC), announced the awarding of $12 million ($5.5 million from the EPA, $500,000 from CPSC, and $6 million from NERC) to three consortia to fund research aimed at providing a greater understanding of potential risks to human health and the environment posed by engineered nanomaterials and their increasing use in a wider variety of products.

The three consortia, the "Consortium for Manufactured Nanomaterial Bioavailability and Environmental Exposure", "Risk Assessment for Manufctured Nanoparticles Used in Consumer Products (RAMNUC)", and "The Transatlantic Initiative for Technology and the Environment", are composed of leading US and UK Universities and research centers, such as Duke University, Carnegie-Mellon University, and Lancaster University. NERC’s $6 million is limited to participating universities and research centers in the UK.  The table below provides more information.




Principal Investigator


Grant Representative

Grant Amount

Project Period



R834575 Grant

Consortium for Manufactured Nanomaterial Bioavailability & Environmental Exposure

Colvin, Vicki L. Chipman, Kevin Fernandes, Teresa Klaine, Stephen J. Lead, Jamie Luoma, Sam Stone, Vicki Tyler, Charles Valsami-Jones, Eva Viant, Mark  

Rice University,Clemson University,Edinburgh Napier University,Natural History Museum (London),University of Birmingham,University of California – Davis,University of Exeter

Lasat, Mitch  


August 2010 – August 2013  

Environmental Behavior, Bioavailability and Effects of Manufactured Nanomaterials – Joint US – UK Research Program (2009)  


R834693 Grant

Risk Assessment for Manufactured Nanoparticles Used

Identity Fraud down 28% in 2010; Consumer Costs Up!


According to Javelin Strategy & Research’s 2011 Identity Fraud Survey Report, there was a 28% drop in the number of victims of identity fraud in 2010.  Additionally, the number of reported data breaches dropped significantly (404 reported breaches in 2010, down from 604 in 2009).  Finally, the report states that "only" 26 million records were reportedly exposed in 2010 compared to a whopping 221 million exposed in 2009.  James Van Dyke, president and founder of Javelin Strategy & Research, attributed (i) increased educational efforts by business, the financial services industry, and government agencies and (ii) "[e]conomic conditions" as contributing factors in the reduction in identity fraud over the past year.   


Not all metrics improved however. The report stated that the consumer out-of-pocket costs rose significantly from $387 in 2009 to $631 in 2010.  The reason for the out-of-pocket increase may be attributed to more "focused" attacks on individuals and an increase in, what the report refers to as, "friendly fraud."  What we don’t know is whether the fewer victims facing greater damages is solely the result of more effective, if less widespread, attacks, or if there are other factors at play.  What is also unknown is what caused the almost 10 fold drop in the number of records reportedly exposed in 2010.   Could this be due to more improved data security tools and practices, or an increased resistance by businesses to report breach events, especially in those instances where conclusively determining that a reportable breach occurred …

Attend Our Upcoming Complimentary Workshop – ” What Would YOU Do If Your Network is Hacked?”

Wednesday, February 16, 2011 11:30 a.m. – 1:30 p.m. Lunch will be provided. Capital Club – 41 South High Street, 7th Floor Columbus, Ohio

One needs only to visit a site such as to learn the extent data breach incidents occur. This workshop will help you learn how to respond to data breach intrusions, whether as a result of a lost laptop, criminal hacking, or other unauthorized access or use of information.

Featuring: Robert J. Morgan, Esq., Porter Wright Morris & Arthur LLP Jeremy A. Logsdon, Esq., Porter Wright Morris & Arthur LLP Donna M. Ruscitti, Esq., Chair, Porter Wright’s Information Privacy and Data Security Practice Group

This is a complimentary seminar, however seating is limited. To reserve your spot at this program, please e-mail Deb Ballard at before February 14.


Forthcoming new treatise: Nanotechnology Law and Policy

A new addition to the growing body of nanotechnology and law treatises will be coming out sometime this month. Carolina Academic Press is publishing Nanotechnology Law and Policy Cases and Materials by Victoria Sutton, the Paul Whitfield Horn Professor at Texas Tech University School of Law. The book,  a product of Professor Sutton’s courses by the same title, focuses on the international, Federal, State, and municipal regulation of nanotechnology and discusses litigation involving nanotech products.

Judging from the table of contents, table of cases and table of statutes that are available from the Carolina Academic Press website, this looks like a title worth adding to a good nanotechnology library.…

“The New Steel? Enabling the Carbon Nanomaterials Revolution: Markets, Metrology, Safety, and Scale-up”

“The New Steel? Enabling the Carbon Nanomaterials Revolution: Markets, Metrology, Safety, and Scale-up” is a workshop to be held on February 28th and March 1st, 2011, at NIST’s Gaithersburg, Maryland facility. NIST has assembled an outstanding roster of speakers from industry, academia and government to address the full spectrum of issues, including a special panel on EH&S.

If you can join the workshop, please register before the registry is filled! Remember that this will be a true workshop and participants are encouraged to actively share their views and perspectives over the two days, and also to provide if possible before the workshop commences a brief (2-page) white paper on one of the three breakout session topics, listed below, to help seed the discussions. If you prepare a white paper, please send it to

The three topic areas for the workshop breakout sessions:

• Technology Challenges and Barriers for Carbon-based Nanomaterials • EH&S – From Regulation to the Marketplace • Measurement Issues and Grand Challenges

NIST contact information is below if you have any questions or would like to receive more information regarding the workshop.

J. Alexander Liddle, Group Leader Nanofabrication Research Group Center for Nanoscale Science and Technology National Institute of Standards and Technology Bldg. 216 Rm. B153 100 Bureau Drive, Stop 6203 Gaithersburg, MD 20899-6203 tel: 301 975 6050 fax: 301 975 5314  …