On May 4, 2015, the US Court of Appeals for the Federal Circuit issued an opinion in Sukumar v. Nautilus, Inc., finding that Sukumar lacked standing to bring a false marking claim under 35 U.S.C. § 292(b) because he did not suffer a competitive injury from the alleged false marking of Nautilus' products (No. 2014-1205, (Fed. Cir. May 4, 2015)). In an issue of first impression, the Federal Circuit held that a potential competitor may suffer a competitive injury under Section 292(b) if it attempts to enter the market.

In October 2010, Sukumar filed a lawsuit against Nautilus in the US District Court for the Western District of Virginia, asserting false marking and state unfair competition claims for the false marking of several Nautilus products with patents that do not cover the products. When he filed the lawsuit, Sukumar and his company, Southern California Stroke Rehabilitation Associates (SCSRA), were not selling products in competition with Nautilus. While the case was pending, the America Invents Act (AIA) amended Section 292(b) to require that any private action for a false marking claim must be brought by a person "who has suffered a competitive injury as a result of a violation of this section" (35 U.S.C. § 292(b)). Based on this heightened standing requirement, and the Federal Circuit's later decision that it applies retroactively to any case pending at the time of the amendment, the district court granted Nautilus summary judgment because Sukumar had not suffered a competitive injury.

Sukumar appealed and argued that a party who intends to enter the market can have standing under Section 292. The Federal Circuit agreed and held that a potential competitor could suffer competitive injury if it attempts to enter the market, explaining that:

Accordingly, the court held that a potential competitor may suffer competitive injury under Section 292(b) if it has attempted to enter the market. The court held that an attempt to enter the market requires both:

In this case, the court found that Sukumar did not meet the definition of a potential competitor because there was insufficient evidence that he took any action to enter the market. The court explained that other than purchasing over 100 exercise machines from Nautilus, Sukumar did not take any of the basic steps of forming a business until after he filed suit, such as:

Accordingly, the court held that Sukumar lacked standing because he failed to take any action to enter the relevant market. The court also noted that the evidence of Sukumar's intent to enter the marketplace and sell fitness machines was weak. The court explained that Sukumar intended to use modified fitness machines in senior citizen rehabilitation centers, not in competition with Nautilus. Although SCSRA eventually took steps to develop a business plan, the court found this evidence had minimal probative value because they occurred after the lawsuit's filing and after the court found that several Nautilus products were incorrectly marked with patents that did not cover the machines.