In the recent oral argument of Juniper Networks, Inc. v. Shipley, 2010-1327 (Fed. Cir. April 29, 2011), Chief Judge Rader asked Juniper’s counsel if a court should take into consideration a party’s motives for bringing a false marking action, such as bringing a case only to gain leverage by driving up costs as much as possible. Juniper’s counsel noted that if the court were to probe the motives of a plaintiff then it should similarly consider the motives of the defendant in related litigation. You can listen to Chief Judge Rader’s policy comments here: [Listen].
You can listen to the entire oral argument here: [Listen].
You can read the court’s opinion here: [Read].