Cyclone Usa, Inc. v. Sei Kim

MEMORANDUM

Sei Kim appeals the district court’s award of $500 for a single transaction of false patent marking by Cyclone USA under 35 U.S.C § 292. On September 16, 2011, Congress amended 35 U.S.C. § 292 and made the amendments retroactive on pending cases. Leahy-Smith America Invents Act, Pub.L. No. 112-29, § 16 (b)(4), 125 Stat. 329 (2011). The penalty under the amended § 292(a) is no longer available to a private party such as Sei Kim. Instead, § 292(b) now grants Sei Kim the right to recover damages to compensate for competitive injury due to the false patent marking. We VACATE and REMAND for a calculation of Cyclone USA’s liabilities under the amended statute.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.