Patent Law Practice Center

Qui Tam Plaintiffs Have Standing to Sue for False Marking under 35 U.S.C. § 292

Mayer Brown’s Partner James R. Ferguson passed along this article he wrote with colleagues Richard M. Assmus and Emily C. Melvin on the recent Stauffer v. Brooks Brothers, Inc. decision.  The article discusses how the Stauffer decision may effect the large number of false marking suits now pending in district courts.  According to the authors, “although the Stauffer decision will not stem the tide of false marking suits – as many patent owners had hoped – several options remain for defending against these actions.”

The US Court of Appeals for the Federal Circuit has ruled that qui tam plaintiffs have standing to sue for false marking under 35 U.S.C. § 292. Stauffer v. Brooks Brothers, Inc., No. 2009-1428 (Fed. Cir. Aug. 31, 2010). Issuing a blow to patent marking defendants, this ruling is sure to impact the flood of cases currently pending in district courts, many of which were stayed pending resolution of Stauffer.

Raymond Stauffer—a patent lawyer himself—brought the suit after he discovered that several bow ties he purchased from Brooks Brothers were marked with two expired US Patents. The district court dismissed Stauffer’s suit for lack of standing, holding that he had not sufficiently alleged an injury to the United States and that any allegations that the alleged false marking quelled competition were too conjectural or hypothetical to constitute injury in fact. (more…)