Commercial Lawn Irrigation, Inc. v. Monrovia Nursery Company, Inc.

Filing 46

ORDER dismissing case with prejudice. Signed by Judge G. Patrick Murphy on 4/2/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

COMMERCIAL LAWN IRRIGATION, )
INC.,
)
)
Plaintiff,
)
)
vs.
)
)
MONROVIA NURSERY COMPANY, INC. )
)
Defendant.
)

CIVIL NO. 11-493-GPM-SCW

MEMORANDUM AND ORDER
MURPHY, District Judge:
On September 16, 2011, President Barack Obama signed into law the Leahy-Smith America
Invents Act. Leahy-Smith America Invents Act, Pub. L. No. 112-29 (125 Stat. 284) (Sep.16, 2011).
This new legislation amended 35 U.S.C. § 292, in a multitude of ways, including changing who can
sue for the penalty authorized by 35 U.S.C. § 292(a). Id. Prior to the amendment, any person could
sue for the penalty. See 35 U.S.C. § 292(b). Now, “[o]nly the United States may sue for the penalty
authorized by this subsection.” Leahy-Smith America Invents Act, Pub. L. No. 112-29 (125 Stat.
284) (Sep.16, 2011). The new legislation also amended 35 U.S.C. § 292 by adding the following
subsection: “(c) The marking of a product, in a manner described in subsection (a), with matter
relating to a patent that covered that product but has expired is not a violation of this section.” Id.
“The amendments made by this subjection shall apply to all cases, without exception, that are
pending on, or commenced on or after, the date of the enactment of this Act.” Id.
Plaintiff Commercial Lawn Irrigation Inc., claims that 35 U.S.C. § 292, as amended, is

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unconstitutional for multiple reasons. The United States of America, through the United States
Attorney for the Southern District of Illinois, was given leave to intervene in the action and
subsequently filed a brief defending the constitutionality of 35 U.S.C. § 292, as amended.
The Court finds 35 U.S.C. § 292, as amended, is constitutional. The Court adopts the
reasoning articulated by Chief Judge David R. Herndon in his March 20, 2012 Order for case
number 11-cv-190-DRH. Therefore, this case is DISMISSED with prejudice.

IT IS SO ORDERED.
DATED: April 2, 2012
/s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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