the U.S. Court of Appeals for the Federal Circuit heard oral arguments in the
case of Stauffer v. Brooks
Brothers, Inc., Nos. 09-1428 et
al. The court must decide whether appellant Stauffer has standing to sue
the apparel company for labeling adjustable bowties with expired design
patents, in violation of 35 U.S.C. § 292. Section 292 prohibits marking an unpatented
article with words to make it appear as if the item is patented "for the purpose
of deceiving the public."1 The law also establishes a fine of up to $500
per falsely marked article.2 Last year, U.S. District Judge Sidney H.
Stein granted Brooks Brothers' motion to dismiss, finding that Stauffer lacked standing to pursue his claims.3 Stauffer then appealed.
In his 2008 qui tam action, Stauffer, an attorney at
Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein in Roseland,
N.J., alleged that Brooks Brothers "falsely
marked at least 121 different species of the bow tie products from their current fashion collection with two expired U.S. patents . . . ." [emphasis
original]. The two patents, Stauffer claimed,
expired in 1954 and 1955. Under US patent
law, "the right of a patentee, assignee or license to exclude others from
making, using offering for sale, or selling the invention theretofore covered" terminates
indefinitely when the patent expires. Stauffer
has asked the court to order Brooks Brothers to pay a civil monetary fine of
$500 per false marking, and to award Stauffer reasonable attorney fees under 35
U.S.C. § 285.4
35 U.S.C. § 292 (2010).
See 35 U.S.C § 292 (2010).
See Stauffer v. Brooks Brothers, --
F. Supp. --, No. 08-cv-10369-SHS (S.D.N.Y. May 14, 2009).
See 35 U.S.C. § 285 (2010).
View the complaint and the opinion from Stauffer v. Brooks Brothers, et al., 08civ10369 (SDNY)