Federal Circuit declines to curb false marking cases
01 September 2010
Eileen McDermott, New York
The Federal Circuit said yesterday that a district court erred in dismissing a false marking suit, to the dismay of the hundreds of plaintiffs who have been sued this year
In Stauffer v Brooks Brothers, the Federal Circuit found that Raymond Stauffer, an individual patent attorney, had standing to sue Brooks Brothers for continuing to mark certain bow ties with expired patent numbers, even though he suffered no direct competitive injury.
The court said that "even though a relator may suffer no injury himself, a qui tam provision operates as a statutory assignment of the United States' rights".
The patents at issue - expired US patent numbers 2,083,106 and 2,123,620 - claim an adjustable bow tie mechanism. They expired in 1954 and 1955, respectively.
According to Section 292 of the US patent laws, falsely marking a product with a patent number is punishable by a fine of up to "$500 for every such offense".
Courts have recently interpreted that language to mean that a defendant is liable for up to $500 per falsely marked article, rather than per...
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