Cyclone Usa, Inc. v. Sei Kim

U.S. Court of Appeals for the Ninth Circuit December 15, 2011

Cyclone Usa, Inc. v. Sei Kim, 461 F. App'x 638 (9th Cir. 2011)

Opinion

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.

Reference

Full Case Name: CYCLONE USA, INC., a Nevada Corporation, Plaintiff-Counter-Defendant-Appellee, LL & C Dealer Services, LLC, Defendant-Counter-Claimant-Appellee, v. SEI KIM, Dba Korean Industrial Design Company, Erroneously Sued as Korean Industrial Design Corporation, Defendant-Counter-Claimant-3rd-Party-Plaintiff-Appellant, and Jay Kim, Third-Party-Defendant
Status: Unpublished