Expired bow tie patent has Brooks Brothers in knots

Tue Aug 31, 2010 4:51pm EDT

Related Topics

* Bow tie patent suit to go forward

* False marking lawsuits against big companies affected

By Diane Bartz

WASHINGTON, Aug 31 (Reuters) - A patent lawyer with a penchant for bow ties has won a round in a fight with Brooks Brothers over expired patent markings that has implications for dozens of similar suits across the country.

Patent lawyer Raymond Stauffer, who says he wears a bow tie almost every day, had accused Brooks Brothers of selling "Adjustolox" bow ties marked as patented when, in fact, the patents expired in the 1950s.

Brooks Brothers responded that Stauffer had no right to file the suit since he was not harmed by the erroneous information and a New York district court agreed.

But the U.S. Court of Appeals for the Federal Circuit reversed that ruling on Tuesday and sent the case back to the lower court for further consideration.

"False marking" lawsuits, as these legal fights are called, have become something of a cottage industry in the patent world since the same appeals court ruled in December the fine for claiming a nonexistent or expired patent was $500 per device sold.

Half the money goes to the person who files the lawsuit and half to the U.S. government.

The lower court had said Stauffer failed to show standing and the appeals court ruled the law did not require Stauffer to be injured by the false marking, but quoted the law as saying that "any person may sue for the penalty."

"I'm delighted with the decision. The language of the statute made it clear: I am 'any person,'" said Stauffer, who said he did not know how many ties Brooks Brothers sold with the markings and so could not estimate how much they might end up being required to pay.

Brooks Brothers did not respond to a telephone call seeking comment.

But the implications of the decision go beyond Brooks Brothers, since false marking lawsuits across the country had been stayed pending the ruling on standing, said Dan Ravicher, head of the Public Patent Foundation, which has cases pending against Johnson & Johnson Consumer Companies Inc, GlaxoSmithKline Consumer Healthcare LP, Adobe Systems Inc (ADBE.O) and others.

Ravicher said those cases would now go forward. About a dozen others had also been stayed pending a decision on Stauffer, according to a patent law blog called Gray on Claims.

"You can't blame the corporations for trying the Hail Mary pass," added Ravicher. (Reporting by Diane Bartz; editing by Andre Grenon)

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