Plaintiff in False Marking Suit Has Standing and Government May Intervene

Last Month at the Federal Circuit - September 2010

Judges: Rader, Lourie (author), Moore
[Appealed from S.D.N.Y., Judge Stein]

In Stauffer v. Brooks Brothers, Inc., Nos. 09-1428, -1430, -1453 (Fed. Cir. Aug. 31, 2010), the Federal Circuit reversed a decision dismissing Raymond E. Stauffer's false marking qui tam action for lack of standing and a decision denying the federal government's motion to intervene.

Brooks Brothers, Inc. and its parent, Retail Brand Alliance, Inc. (collectively "Brooks Brothers"), manufacture and sell men's bow ties. Some of the Brooks Brothers bow ties contain an "Adjustolox" mechanism that is manufactured by a third party, J.M.C. Bow Company, Inc. ("J.M.C. Bow"), and are marked with U.S. Patent Nos. 2,083,106 and 2,123,620, which expired in 1954 and 1955, respectively. Stauffer is a patent attorney who has purchased some of the marked bow ties. Stauffer brought a qui tam action under 35 U.S.C. § 292 alleging that Brooks Brothers had