IP-related crimes are well known for non-patent offenses, e.g., theft of trade secrets, 18 U.S.C. § 1832; criminal copyright infringement, 17 U.S.C. § 506; and trademark counterfeiting, 18 U.S.C. § 2320. Patent crimes are virtually unknown, with the exception of the false marking statute, discussed at length elsewhere, here, and there.
A lesser-known patent-forgery statute targets anyone who “falsely makes, forges, counterfeits, or alters any letters patent granted or purporting to have been granted by the President of the United States.” 18 U.S.C. § 497. That crime would probably not be very successful. Furthermore, that statute’s constitutionality may be in question after the Supreme Court decides the Alvarez case this term.
There are more general federal crimes that may arise in a patent context, though. Lying to the PTO would violate 18 U.S.C. § 1001; a literal reading of that statute would criminalize some forms of inequitable conduct. Using a patent procured by inequitable conduct to obtain a government contract would probably violate the False Claims Act.
Other criminal issues that apparently arise tangentially in patent contexts. For example, Appendix R to the Patent Rules states:
§ 10.88 Threatening criminal prosecution.
A practitioner shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in any prospective or pending proceeding before the Office.
This week we kick off a series of posts related to criminal laws and intellectual property. We’re going to examine the current state of IP-related criminal laws–both state and federal.
A good place to start is a working paper, The Puzzle of Criminal Sanctions for Intellectual Property Infringement, by Irina D. Manta. Sections II and III of the paper are an effective primer on the history and current state of criminal sanctions in IP laws. For more on federal prosecution efforts, check out the DOJ’s Computer Crime & Intellectual Property Section.