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I'm specifically interested in a particular plant patent. The patent describes the leaf size, but the plants sold (under the patented name by the owner of the patent) have a different leaf size. Is it fraudulent simply to file a patent with inaccurate information about the invention? Is it fraudulent if the owner of a patent sells items under the name from the patent, but those items don't fit the description in the actual patent?

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  • Could you please specify the patent number?
    – Eric S
    Dec 4 '20 at 21:15
  • I'm interested in the general answer to the question, but it was prompted specifically by patent USPP29711P2: patents.google.com/patent/USPP29711P2/en
    – Avery
    Dec 4 '20 at 21:24
  • It’s an interesting question which is why I upvoted it. The reason I asked is that the answer might depend on how the leaf size is described in the patent. We get very few questions about plant patents.
    – Eric S
    Dec 4 '20 at 22:05
  • Thank you! I'd also be interested in the answer to this for a non plant related patent out of curiosity - what are the implications of the patent owner selling an item that doesn't fit the patent description?
    – Avery
    Dec 4 '20 at 22:37
  • Owning a patent doesn’t limit the owner in any way. A patent limits others from selling what is protected by the patent. Also, owning a patent doesn’t guarantee the ability to sell what is protected by the patent as there could be another patent covering some other aspect of the product.
    – Eric S
    Dec 4 '20 at 22:57
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I do not know anything about plant patents other than the page at the USPTO web site I just read, but I can answer for utility patents. A utility patent may have a very detailed description of a "preferred embodiment" but the claims are, almost always, broader than that specific item. Many things that are very different from the described embodiment can contain the claimed elements. So the thing you buy frequently does not look like a figure in the patent.

Also, many things are sold with a patent marking that the item may be covered by "one or more" of some long list of patents. The marking is needed to perfect the patent owner's rights. "False marking" was a big deal before the AIA law was passed but it doesn't have much teeth anymore. Before the AIA, a third party (you) could start an action and get a percent of the fines. It was $500 per product. A Dixie cup suit was a poster child for how crazy that might be.

Now only the government can go after an offender, a wrong marking is not automatically an intent to deceive the public and the government keeps any fines.

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