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That May Be A $500 Bow Tie I'm Wearing - the Ruling in Stauffer v. Brooks Brothers, Inc. a Recent "False Marking" Claim Case.

I will admit it.  My sense of style is not for everyone.  Atypical.  Iconoclastic. Nerdy. Or just bad.  I would accept any of those words as accurate descriptors.

But as I sit here in my Brooks Brothers seersucker suit and my Brooks Brothers regimental stripe bow tie, I am torn between feeling the outrage of a genetically predisposed defense lawyer and disappointment that my ship came in and I simply missed it.  I was alerted to my lost opportunity by stories in the ABA Law Journal, the Wall Street Journal,Law360 and Reuters

You see, my natty bow tie is fitted with the Adjustolox mechanism, allowing me to adjust a "one size" bow tie to fit my scrawny neck without the slippage that occurs with inferior mechanisms.  Naturally, such a useful and novel invention as the Adjustolox mechanism is patented.

Or, was patented.  You see, the patents expired in 1954 and 1955.

Which was also probably the last time that large numbers of men dressed like I do. 

Alas for my beloved Brooks Brothers, because a bow-tie-wearing patent lawyer purchased some bow ties still marked with the expired patent numbers.  He brought a "false marking" claim against the glorious font of men's business style.

Apparently the very future of The Republic is placed at risk if one wrongly claims a patent for the Adjustolox.  Presumably the market is being improperly excluded from the useful arts and sciences of bow tie adjusting technology.   As a result the feds can fine you $500 for each Adjustolox you sell with expired patent numbers--ifyou do so for the purpose of deceiving the public.  See 35 U.S.C. § 292

Let's see:

$500 x [gajillion ties sold] = No longer practicing law to earn a living.

If, however, you sell falsely labeled Adjustoloxae simply because no one has looked at a bow tie since 1955, it's all good. 

But you still have to prevail against Raymond E. Stauffer, the bow-tie-festooned patent lawyer, because 35 U.S.C. § 292 allows "any person" to seek a $500-per-Adjustolox penalty and share 50% of the take with the gubmint. 

That was the ruling in Stauffer v. Brooks Brothers, Inc., released Tuesday by the Federal Circuit.  Congress can create its own "injury in fact" -- a statutory violation -- and then essentially deputize "any person" to pursue collection for that injury. 

Of course, the Federal Circuit was not asked to rule upon the wisdom of such a statute.  That is the purview of Congress alone.  If it were otherwise, little that Congress commits to writing would survive.

But who knew that my retro wardrobe could be such a source of potential riches?  No telling what revenue I could garner from investigating the patents on other aspects of my geezer lifestyle. No telling what else that I prize is marked with patents that expired 50 years ago.

Reposted with permission from Andrews Kurth's the Appelate Record Blog at:

http://www.appellaterecord.com/2010/09/articles/nerdiana/that-may-be-a-500-bow-tie-im-wearing/

 

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume , Number 251
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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