CAFC bows to the inevitable

PatLit has already featured the cruel and unusual "patent marking" provisions of US patent law here and here (see also this post on patent marking policy in Taiwan). Well, earlier today the United States Court of Appeals for the Federal Circuit gave its ruling in Raymond E. Stauffer v Brooks Brothers Inc.; Retail Brand Alliance v United States here.

The decision is bad news for unsuspecting and harmless patent-markers. Brooks Brothers and its parent Retail Brand Alliance made and sold men’s bow ties. Some of the Brooks Brothers bow ties contained an “Adjustolox” mechanism made by a third party, J.M.C. Bow Company, and marked with, inter alia, U.S. Patent Nos. 2,083,106 and 2,123,620. These patents are not exactly hot stuff, having expired in 1954 and 1955 respectively. Stauffer, a patent attorney, bought some of the marked bow ties, then brought a qui tam action under 35 U.S.C. § 292 alleging that Brooks Brothers had falsely marked its bow ties as being patented. This would entitle him to half the fine in respect of each offending sale. The District Court dismissed Stauffer's action on grounds of lack of standing and an insufficiently argued claim that he was a person damaged by the bow tie sale.

Reversing this decision -- which to this English lawyer, unversed in US law, looked clearly wrong in the first place -- the Federal Circuit remanded the action for trial of the merits. On the issue of standing the appellate court had this to say:

"We also need not address whether Stauffer’s alleged injuries to himself or his asserted injuries to competition give him standing, either individually or as a member of the public. Stauffer’s standing arises from his status as “any person,” and he need not allege more for jurisdictional purposes. The district court conflated its jurisdic-tion with the merits of the case when it stated that Stauffer had failed to sufficiently allege a “purpose of deceiving the public.” ... Brooks Brothers similarly conflates jurisdiction and merits in asserting that Stauffer must show that the marking is fairly traceable to Brooks Brothers, rather than to J.M.C. Bow, the third party Adjustolox manufacturer. Neither of those points is jurisdictional in nature, nor do they fall under the standing inquiry. The standing doctrine is intended to require that the plaintiff is a proper person to bring the suit; it does not require that the plaintiff properly allege all of the elements of his claim. Thus, “standing does not depend on the merits of the plaintiff’s contention that particular conduct is illegal”; it instead requires a claim to an injury of a legally cognizable right. .... By allowing any person to sue, Congress granted individuals a legally cognizable right to half of the penalty defined in section 292(a). Thus, Stauffer has sufficiently alleged (1) an injury in fact to the United States that (2) is caused by Brooks Brothers’ alleged conduct, attaching the markings to its bow ties, and (3) is likely to be redressed, with a statutory fine, by a favorable decision ...".

Thanks, Gerry Gavigan, for the link.