New Twist in False-Marking Lawsuits Nets $1.8 Million Judgment Against Tuna Company

A federal court in California has reportedly fined King Tuna $1.8 million
for marking its products with a patent number despite not following the
patented process in preparing its fish. King Tuna v. Anova Food, Inc., No.
07-07451 (C.D. Cal., decided February 24, 2011). The patent
apparently related to pre-cooling filtered wood smoke before applying it
to tuna. King Tuna sued a competitor alleging that the patent had been
infringed; the competitor countersued claiming, among other matters, that
King Tuna had falsely advertised and falsely marked its products. While most
recent litigation involving the false-marking statute involves expired patents,
this case apparently involved a valid patent.

According to the court, King Tuna’s false advertising and marking “could not
have been a mere innocent oversight,” because the company, while claiming
that its preservation process involved filtered wood smoke, never pre-cooled
the wood smoke “as required by the “619 patent.” To determine the fine,
which is assessed under the law at up to $500 for every item falsely marked,
the court designated “one pound per article as the metric in determining the
penalty and assesse[d] a penalty of $1.00 per article. King Tuna sold 1,845,522
pounds of [filtered wood smoke] tuna during the relevant period. Hence,
the total penalty is $1,845,522.00.” See The Wall Street Journal, March 4, 2011;
Docket Navigator and Managing Intellectual Property, March 7, 2011.