Federal Circuit Opens Door to Private Citizen Lawsuits for Falsely Marking Products
A recent federal court ruling may result in an increase in patent litigation for falsely “marking” unpatented products. In Stauffer v. Brooks Brothers, Inc., Case Nos. 2009-1428, 1430, 1453 (Fed. Cir. Aug. 31, 2010), the Federal Circuit Court of Appeals held that private citizens have the right to bring suit against patent holders who mark unpatented products with patent numbers of expired or inapplicable patents. The products at issue —Brooks Brothers bow ties — were marked with the patent numbers of patents that had expired in the 1950s. The lawsuit was brought by a patent lawyer who was shopping in a Brooks Brothers store and noticed the expired patent numbers.