False Marking Claims: Standing

By Jason Rantanen

Stauffer v. Brooks Brothers, Inc. v. United States (Fed. Cir. 2010)

Raymond Stauffer brought an action against Brooks Brothers claiming that bow ties sold by the defendant were falsely marked with patents that expired in 1954 and 1955.  Stauffer is a patent attorney who purchased some of the marked bow ties.  The district court granted Brooks Brothers' motion to dismiss for lack of standing, and subsequently denied the United States' motion to intervene.  Stauffer and the United States appealed.

Section 292 states:

(a) . . .
Whoever marks upon, or affixes to . . . any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public
. . .
Shall be fined not more than $500 for every such offense.
(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.

(emphasis added).  This type of language is called a "qui tam" provision, by which the government  essentially asigns its rights to a private party (the qui tam "relator").  Because the relator is standing in the place of the United States, he or she must prove that the government, as opposed to the relator, satisfies the requirements for standing.  Central to this case was the district court's determination that Stauffer failed to sufficiently allege that the United States suffered an injury in fact from Brooks Brothers' alleged false marking. 

On appeal, the Federal Circuit concluded that the district court had erred on this point:

Congress has, by enacting section 292, defined an injury in fact to the United States. In other words, a violation of that statute inherently constitutes an injury to the United States. In passing the statute prohibiting deceptive patent mismarking, Congress determined that such conduct is harmful and should be prohibited. The parties have not cited any case in which the government has been denied standing to enforce its own law. Because the government would have standing to enforce its own law, Stauffer, as the government’s assignee, also has standing to enforce section 292.

Slip Op. at 9.

The panel rejected Brooks Brothers' reliance on Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), which denied plaintiffs standing under a citizen-suit provision, as relating only to suits against the government itself.  It also rejected the argument that Stauffer's standing depends on whether the alleged injury is proprietary or sovereign, concluding that both types of injury are sufficient to confer standing on the government, and therefore on the relator. 

With respect to the Government's request to intervene, the Federal Circuit determined that the district court  erred in concluding that the government lacked an interest sufficient to intervene as a matter of right under Rule 24(a)(2).  The panel stated that:

Contrary to Brooks Brothers’ position, the government has an interest in enforcement of its laws and in one half the fine that Stauffer claims, disposing of the action would “as a practical matter impair or impede the [gov-ernment’s] ability to protect its interest,” and Stauffer may not adequately represent that interest….As an initial matter, Brooks Brothers does not contest the government’s assertion that Stauffer does not adequately represent the United States’ interest in this case.

Furthermore, the government would not be able to recover a fine from Brooks Brothers if Stauffer loses, as res judicata would attach to claims against Brooks Brothers for the particular markings at issue….Thus, even though, as the district court noted, “the issue of the government’s ability to bring an action pursuant to section 292” in general was not presented,[] the United States’ ability to protect its interest in this particular case would be impaired by disposing of this action without the government’s intervention. We there-ore reverse the district court’s decision denying the government’s motion to intervene.

Slip Op. at 15-16 (internal citations omitted).

Note: The Federal Circuit expressly declined to address several issues, including  the constitutionality of Section 292(b) (an issue that was raised by amicus Ciba Vision Corporation), whether section 292 addresses a proprietary or a sovereign injury, or both, and whether Stauffers alleged injuries to himself, or his asserted injuries to competition, give him standing.  In addition, in its remand the panel explicitly instructed the district court to consider Brooks Brothers' motion to dismiss pursuant to Rule 12(b)(6), which argued that the complaint fails to allege an intent to deceive the public with sufficient specificity.

58 thoughts on “False Marking Claims: Standing

  1. 55

    I think Wayne is correct that section 292 is not a qui tam statute. However, even if he is wrong, the case should have been dismissed because, as Judge Stein found, the plaintiff did not allege an injury in fact to himself, the government or the public. The Federal Circuit reversed because

    The parties have not cited any case in which the government has been denied standing to enforce its own law. Because the government would have standing to enforce its own law, Stauffer, as the government’s assignee, also has standing to enforce section 292.

    However, the Circuit Court did not cite any case endorsing the government’s power to assign its enforcement power, absent an injury in fact to the government. In Vermont Agency Nat. Resources v U.S., the Supreme Court found that the government could assign a claim where it suffered an alleged injury in fact, specifically fraud. In that case, the Court said: “It is beyond doubt that the complaint asserts an injury to the United States-both the injury to its sovereignty arising from violation of its laws (which suffices to support a criminal lawsuit by the Government) and the proprietary injury resulting from the alleged fraud.”

    The Federal Circuit erroneously inferred from that sentence that the federal government can unconditionally assign its power to enforce a statute even in the absence of a proprietary injury. But no court has ever said that. Moreover, the Federal circuit punted on a critical point that Brooks Brothers raised in a footnote:

    Alternatively, there exists the possibility that if this Court allows for qui tam relator standing under Section 292 arising out of an alleged “sovereign” injury to the United States in the absence of an “injury-in-fact,” it would violate the “take care” clause of Article II of the United States Constitution in addition to any such decision being impermissibly “advisory” in nature. As the Supreme Court has instructed, “courts must stay within their constitutionally prescribed sphere of action, whether or not exceeding that sphere will harm one of the other two branches.” Steel Co., 523 U.S. at 103, fn.4. Allowing for the judiciary to ensure that the “sovereign” interest of the United States was protected in the case at bar would be an impermissible extension into the Executive Branch’s power to “take care that the Laws be faithfully executed.” See U.S. CONSTITUTION, Art. II, §3.

  2. 54

    IBP,

    I’m not sure I see what’s notable here either.

    All those fine points you make are like true anyhow. Iza thinking that maybe you got some new angle on the “expired patents should be legal” policy stance. As for all those nice defense, I’m sure that all those nice biznesses tried to do the right thing and documented their efforts like Solo Cup did.

    Yeah right.

  3. 53

    Because it raises the distinct possibility that, if applicable, a “business cost and disruption reduction” defense will suffice as rebuttal evidence on the intent requirement, and will be further developed through jurisprudence if any of these cases go to decision and appeal.

    Also, it might necessitate some type of defense such as this, given the result in Solo Cup.

  4. 52

    Notably all the ones I have seen allege marking of expired patent numbers

    Why is this notable?

  5. 51

    Ned said: “I think the era of false marking cases is about to end.”

    Not if Patcap and others have anything to say about it.

    More cases filed in Northern Ohio recently add to the growing number there and elsewhere.

    Notably all the ones I have seen allege marking of expired patent numbers, with only one alleging marking of the number of an inapplicable patent.

  6. 50

    It’s distinct to be drank! The centre has some israeli effect. Top class is one famous visita. A proud woman overheard the member factually. I changed that society upon the role.

  7. 49

    Just what is the “nuisance value” of trolls?

    Do you enjoy denigrating the every day person explicitly empowered by the direct language of the law by calling them “trolls”?

    Sounds quite disingenuous from someone signing themselves as “patent litigation“. I am sure that “many of us” would like to rid ourselves of “patent litigation“.

  8. 48

    I agree with the CAFC’s ruling here, and am glad the district court decision was reversed. Although many of us would like to rid patent litigation of the scourge of false marking trolls, undermining statute and judicial precedent is not the way to do it. Proving scienter (intent to deceive, an element of liability) is likely a sufficient burden that, if courts properly apply the law, the nuisance value of trolls will be limited.

  9. 47

    Hoorah. From where I sit, the fundamentals of a sensible patent law are inherently very simple, certainly easy enough for intelligent inventors, engineers, scientists, investors and managers to understand, get behind and actively foster. Such fostering would promote the progress of useful arts better than anything.

    If only politicians, Congressional draftspersons and judges would nurture the basics, instead of messing them up.

  10. 46

    I think the era of false marking cases is about to end.

    And not a moment too soon.

    If it were up to me, I’d eliminate the marking requirement altogether, and call it constructive notice whenever anybody knowingly copies someone else’s existing product in whole or in part.

  11. 45

    I agree with the observation that marking with an expired patent number because it is expensive to change the tooling, etc., ordinarily has nothing to do with an intent to deceive the public.

    I think the era of false marking cases is about to end.

  12. 44

    Lol – that was purrrfect – cepts ya need to ad about four pages of legal journal explanation that would bore everyone to tears.

  13. 43

    NWPA, “Where is NAL? I miss her spanking 6 and MM and hearing their wails of protest and resignation.”

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

    The mark IS the status.

  14. 42

    >>6 has said he knows who she is irl

    6, said that about me but was wrong. What a suprize, 6 being wrong.

  15. 41

    EG,

    Do all these guys know that they are repeating the historical quote? And if so, doesn’t that diminish the meaning?

    NWPA,

    I heard that she had a kid or got some big promotion or somethin. 6 has said he knows who she is irl (hope it aint one of those Rai-like stalking things…)

  16. 40

    >>6,

    >>Call up your friend NAL – she had this subject >>nailed.

    Where is NAL? I miss her spanking 6 and MM and hearing their wails of protest and resignation.

  17. 39

    Ned and Malcolmm,

    From WikiAnswers:

    The commonly used expression, “Those who ignore history are bound (or doomed) to repeat it” is actually a mis-quotation of the original text written by George Santayana, who, in his Reason in Common Sense, The Life of Reason, Vol.1, wrote “Those who cannot remember the past are condemned to repeat it.”

    Santayana’s quotation, in turn, was a slight modification of an Edmund Burke (1729-1797) statement, “Those who don’t know history are destined to repeat it.”

  18. 37

    “Personally, I don’t think expired patents actually reading on the product show any intent to deceive at all, unless the marker has a remarkably low opinion of the public intellect.”

    IANAE,

    By itself, you are partially correct that mere knowledge that the marking is false is insufficient to prove intent to deceive. Actually, in the words of the Federal Circuit in Pequignot v. Solo Cup, false marking creates a “rebuttable presumption of intent to deceive the public.” The Federal Circuit in Solo Cup also made it absolutely clear that “false marking” includes marking the product with expired patent numbers (including using “may be covered” language). Fortunately for those accused of false marking, the Federal Circuit held that the “bar for proving deceptive intent is particularly high.”

  19. 36

    Reams of basic misunderstanding on what the marking is (legally) and why it is like it is.

    6,

    Call up your friend NAL – she had this subject nailed.

  20. 35

    This “expired patent” liability due to residual patent marking after patent expiration is a portion of the statute that has outlived its usefulness. It was instituted in an era when obtaining patent copies was difficult, and took time. Today, you can get US patent copies in mere minutes, if not mere seconds. And, although there are a few gremlins regarding patent life that could be, and likely should be addressed with BETTER INFO kept by the USPTO (e.g., term extension, litigation), you can easily check, at the USPTO web pages, to see if maintenance fees have been paid, and if the “basic 20 years” patent life has passed. SO, if you see a patent number on a product, the public can generally figure out if the patent is still “live” (in most cases easily). And, IF the product has a patent number on it, then you can QUICKLY learn what the patent discloses about the technology. On the other hand, if no patent number is on the product, an expensive prior art search may be required, since folks may just not put any numbers on a product even though it may be patented. Which situation is better ? Which situation facilitiates getting product or process information into the hands of competitors, or the public ?

    Bottom line ? To promote the progress of science and the useful arts, PATENT MARKING should be ENCOURAGED, and NOT penalized (even on expired patents), especially in the usual case where the patent does cover the product, or at least did before it expired or lapsed due to non-payment of maintenance fees. OK, keep the penalties for other cases of mismarking. The rest of the statute seems OK, particularly if the patent mismarking, e.g., using “patent pending” when NO unpublished patent application remains pending” and is used to deceive the public. [Query, wouldn’t leaving a US Pat.APP PUB number on the product be A-OK ????… and helpful to the public???]

    Change the law, get rid of this SET of crazy “expired patent” marking cases. Maybe the law should NOW BE, since the patent copies are so easily available, that if the product is now or once was covered by a US Patent, or the subject of a PUBLISHED US Patent Application, then the product MUST BE MARKED with the patent number or the Patent Application Pub Number. Wouldn’t that make more sense ???

    Don’t spend the court’s time arguing over whether there was “intent to deceive”. Change the law to make “deception” the “intentional removal of patent numbers to make it hard for the public to find the patents covering the product so they don’t easily discover that the patent has actually expired….. Turn this thing around so it makes some sense in today’s world !!!

  21. 34

    Ty for the comment Re: Brinkmeier v BIC and Brinkmeier v Bayer

    It seems Brinkmeier has set to establish that if you litigate your patent, make sure it doesn’t stay marked on your products.

    Why didn’t Plaintiff file an amended complaint if the Defendants didn’t remove the marking after becoming aware of the Plaintiff’s claim?

  22. 33

    How is it a max $1000 recovery lawsuit?

    If P is successful, P takes home $250 per unpatented article ($250 to the US Govt). Does it say somethere that Brooks brothers only marked 4 bowties?

    I’m assuming they’ve got (And have done in the past) thousands of bowties marked with the expired patents. Thousands x $250 a pop is nice.

    Read the statute: it says “Shall be fined not more than $500”. That means that a judge can assign a fine that’s less than $500, perhaps even less than a dollar. Tell me: what judge is going to assign a $500 penalty for every offending product when the retail price for the offending product itself is less than $500?

    — My question was based on the fine being limited to injuries received by the Plaintiff (I thought the original post said the patent attorney bought 2 ties) – Dennis was this change to “some of the marked bow ties”?

    — Bigger question, would a class action false marking case have better chance for a higher recovery?

  23. 32

    Why does the CAFC’s reasoning then not also lead to the idea that the Congress could also properly shunt criminal prosecutions into the hands of “anyone”?

  24. 28

    Just doing a quick search, the actions in ancient Rome were known as “actio popularis” or “actiones populares.” They appeared to have been created by Augustus as part of the Julian laws as I mentioned earlier. They provided the right of any member of the public to enforce public laws; and to share in the penalty paid that normally included confiscation of half of one’s property.

    The most draconian of Julian laws were the laws against adultery. In the previously linked note, the Julian laws against adultery were gradually repealed, it is said, at the behest of Christians. I think this may be a misinterpretation, but I may be wrong. But the problem Christians had is not with the law against adultery, but with its exception in the case of prostitutes.

    Regardless, the false marking statute appears to have the same form and structure as the laws of ancient Rome; and the results may be the same. The laws resulted in a reign of terror not too dissimilar to what happened in France between 1792 and 1794 when the slightest accusation against anyone for any reason could result in the death penalty.

  25. 26

    What’s the difference between an “admixture” and a “mixture”? Is the former simply the lawyer’s version?

  26. 25

    “Qui tam” is shorthand for “qui tam pro domino rege quam pro se ipso in hac parte
    sequitur” (“who brings the action for the King as well as for himself.”).

    The important point to be made (as is clear from those who have dealt with the federal False Claims Act), is that a private party is empowered to bring suit on behalf of the government to vindicate solely the rights of the latter, and not rights personal to the private party.

    My comment here is merely an observation that may be of benefit to those who choose to wend their way through Section 292 to try and determine if it is in fact properly characterized as a “qui tam” action.

    In my view, consistent with a thoughtful comment above, I harbor serious doubts that Section 292 is truly deserving of the moniker “qui tam”, particularly after reading 292(b) in conjunction with 292(a).

    Section 292 provides as follows:

    35 U.S.C. 292 False marking.

    (a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words “patent,” “patentee,” or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word “patent” or any word or number importing the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words “patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public – Shall be fined not more than $500 for every such offense.

    (b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.

    (Subsection (a) amended Dec. 8, 1994, Public Law 103-465, sec. 533(b)(6), 108 Stat. 4990.)

    292(b) seems relatively clear, though the use of “fine” in 292(a) and “penalty” in 292(b) does seem a bit odd.

    292(a), however, is in my view an entirely different matter. It appears to be an admixture of both private rights and government rights, which is a marked departure from the generally accepted understanding of what comprises a “qui tam” matter. In other words, perhaps a more accurate characterization of Section 292 would be to call it “It walks like a qui tam, it quacks like a qui tam, but it ain’t a qui tam”.

    Of course, saying it is not properly a “qui tam” matter opens up a whole new can of worms, and particularly when private rights are involved that are fully vindicated by damages provisions under a host of other federal (and state) laws such as, for example, the Lanham Act.

  27. 24

    EG: But that still leaves the “intent to deceive” prong which may not be triggered by such use.

    Personally, I don’t think expired patents actually reading on the product show any intent to deceive at all, unless the marker has a remarkably low opinion of the public intellect.

    Even if you expect a would-be copier to wait until your patent is expired once he sees your marked product, surely you also expect him to check when that will happen.

  28. 23

    How is it a max $1000 recovery lawsuit?

    If P is successful, P takes home $250 per unpatented article ($250 to the US Govt). Does it say somethere that Brooks brothers only marked 4 bowties?

    I’m assuming they’ve got (And have done in the past) thousands of bowties marked with the expired patents. Thousands x $250 a pop is nice.

    Read the statute: it says “Shall be fined not more than $500″. That means that a judge can assign a fine that’s less than $500, perhaps even less than a dollar. Tell me: what judge is going to assign a $500 penalty for every offending product when the retail price for the offending product itself is less than $500?

  29. 22

    I was in Vegas playing with a slot machine. I got curious and looked on the back of it and saw, “this item may be protected under one of the following patents…” afterwards were listed about 25 patents, some starting with 4.

    The word “patent” is affixed, so I guess this is a violation of plain language of the statute. I should have sued, maybe I could’ve got back the money I lost.

    Who are you going to sue? The casino? I’m going to guess that the slot machine was sold to the casino a rather long time ago, perhaps at a time when those patents were still in force. I’m also going to guess that the casino is not trying to sell those slot machines to anyone either. I don’t think that section 292 places a duty on the users/purchasers of equipment to erase the patent numbers thereon once the associated patents expire.

  30. 21

    Guest and IANAE,

    In view of Pequignot v. Solo Cup, use of the words “may” and “one of” probably won’t avoid the “falsely marked” prong. But that still leaves the “intent to deceive” prong which may not be triggered by such use.

  31. 20

    If P is successful, P takes home $250 per unpatented article ($250 to the US Govt). Does it say somethere that Brooks brothers only marked 4 bowties?

    I’m assuming they’ve got (And have done in the past) thousands of bowties marked with the expired patents. Thousands x $250 a pop is nice.

    That would be an appalling windfall for a patent attorney who admires Tucker Carlson’s fashion choices.

  32. 19

    “Who has time to waste on a max $1000 recovery lawsuit?”

    How is it a max $1000 recovery lawsuit?

    If P is successful, P takes home $250 per unpatented article ($250 to the US Govt). Does it say somethere that Brooks brothers only marked 4 bowties?

    I’m assuming they’ve got (And have done in the past) thousands of bowties marked with the expired patents. Thousands x $250 a pop is nice.

  33. 18

    I half recall that the origin of qui tam laws were to help enforce the Julian laws against adultery that provided for exile and confiscation of half of one’s property.

    link to unrv.com

    As an aside, Messlina, Claudius’ wife, was alleged to frequently attend the brothels. But it is clear she had only one client, a Roman noble, her lover. Why? Sex with prostitutes was no crime.

  34. 16

    Has anyone studied the the legislative history of Section 292 ? It would seem to my that the offense was intended to mean marking with a Patent Number where the claims of the patent did not cover the product and not simply the situation where a patent has expired.

  35. 15

    does the inclusion of the word “may” cover their butt?

    What about the words “one of”?

    If the slot machine is marked with a dozen plant patents, seven expired design patents for staplers, five expired utility patents for windmills, and one enforceable utility patent with a picture claim to that slot machine, the slot machine is in fact protected by one of those 25 patents.

    If that last patent is also expired, you could probably still make a true statement by changing the word “protected” to “covered” or “claimed” or similar.

  36. 13

    As posted at 12:01 Tuesday, today is the “Last Day of Enforceability for Patent 4,xxx,xxx.” That is a very easy thing to remember. I would think the fact that any patent having a number less than 5,000,000 would affect False Marking Claims. In this case, the defendant items were falsely marked with patents that expired in 1954 and 1955.

    If all patent having a number less than 5,000,000 are expired and the defendant items were falsely marked with patents that expired in 1954 and 1955, it would be harder to prove tht the marking were for the purpose of deceiving the public.

    A solution to False Marking Claims may be to widely publicize the fact that all patent having a number less than 5,000,000 are expired.

    Of course, the Government won’t do it since they merely need only slip into the end of a False Marking Claims litigation case to collect their “in one half the fine that Stauffer claims”.

    On a different issue, is there case law that the US Government has a one half interest in the fine of a False Marking Claims case or is that just something the court desires as an outcome?

  37. 12

    good question guest – if it does, then I think the other edge of that sword is that the notice fails for the benefit part of giving notice.

    Just a hunch.

  38. 10

    afterwards were listed about 25 patents, some starting with 4.
    The word “patent” is affixed,

    Could be worse, the patents could have started with “D”.

  39. 9

    I was in Vegas playing with a slot machine. I got curious and looked on the back of it and saw, “this item may be protected under one of the following patents…” afterwards were listed about 25 patents, some starting with 4.

    The word “patent” is affixed, so I guess this is a violation of plain language of the statute. I should have sued, maybe I could’ve got back the money I lost.

  40. 8

    The bigger issue is whether Stauffer/U.S. can show an intent to deceive. That’s a pretty tall hill to climb after Pequignot v. Solo Cup.

  41. 7

    “the panel explicitly instructed the district court to consider Brooks Brothers’ motion to dismiss pursuant to Rule 12(b)(6)”

    This is the Easter egg. The Stauffer judge just needs to follow the lead of the D.DE. in last week’s decisions in Brinkmeier v BIC and Brinkmeier v Bayer.

    Dennis, how about some comments on that case? James Lennon and his colleagues at Womble Carlyle wrote a beautiful brief on their motion to dismiss under Rules 12(b)(6) and 9(b). Anyone with a false marking case that wasn’t stayed pending Stauffer should get it dismissed under Brinkmeier.

  42. 6

    @guest — From the perspective of the ultimate recovery if successful, there is no practical difference. But when you start analyzing the requirements to be able to bring cases, there is a world of difference between qui tam actions and actions based on a statute that expressly grants standing to sue to a defined class of persons.

    The federal courts are courts of limited jurisdiction. Standing to sue is an issue that cannot be waived. The Supreme Court can dismiss a case for lack of standing even after years of wrangling in the lower courts and even without being prompted by either party. Standing is a core jurisdictional principle that goes straight to the power of the court to adjudicate a matter.

    Brooks Bros. here used a creative argument to try to limit the number of people who can bring claims under Section 292 – or at least to impose some additional pleading requirements. I have to surmise that upon a successful characterization of these claims as qui tam actions, the defendants would try to use a lot of other law relating to qui tam actions to try to have the case dismissed or severely limit recovery.

    Bottom Line: Qui tam law is improperly applied to Section 292 claims. If done, the class of people who can bring these claims would be narrowed from “any person” as the statute says to those who can show or at least plead a sufficient nexus to a government interest. Then, other aspects of qui tam law could be used to defeat claims.

    Whether these actions should be allowed is a matter for Congress to take up. Brining qui tam law into a patent action is unsupported by the text of the statute and conflicts with the basic law of standing.

  43. 5

    Wayne, as Ping touches on, is there any practical difference? Besides being “accurate” (if you are indeed correct), so what?

  44. 4

    Funny that – the cut pie looks the same in all the cases.

    Yes, but only I get to call my piece by a Latin name…

  45. 3

    Po-tay-toe – Po-tah-toe

    relator gets a share of the government’s recovery – government gets a share of the plaintiff’s recovery.

    Or better yet, lets be like Solomon and split it down the middle.

    Funny that – the cut pie looks the same in all the cases.

  46. 2

    This case and others that describe Section 292 as a qui tam provision drive me nuts. Section 292 does not create a qui tam action. In a qui tam action, a private party is suing to enforce the government’s rights. Qui tam actions are properly captioned “John Doe, ex rel United States of America v. Defendant” to make explicit the relationship between the relator (and I mean relator – not plaintiff) and the U.S. Government, which is the true party in interest.

    Such actions are defined in places like the Medicare laws to create a group of private Attorneys General by creating a financial incentive for private parties to bring actions to redress harms to the government. The relator in a qui tam action gets a share of what is the government’s recovery. Under Section 292, the Government gets a share of the plaintiff’s recovery.

    Although Section 292 is similar in many respects to a qui tam action, the express language used provides standing to “any person.” The section defines a harm (false marking” and sets out a class of people who can bring suit in the federal courts to have the harm redressed. This may be close to or even at at the Consitutional minimum requirements for standing, but to call these actions qui tam actions is simply wrong.

  47. 1

    Who has time to waste on a max $1000 recovery lawsuit? Are attorney fees paid for if Patent Attorney wins?

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