Stauffer v. Brooks Brothers

On Aug. 31, 2010, the Federal Circuit rejected a procedural attempt to stem the recent flood of “false patent marking” lawsuits and provided guidance on the standing requirements for pursuing false marking claims under 35 U.S.C. ' 292. In Stauffer v. Brooks Brothers, Inc., 619 F.3d 1321 (Fed. Cir. 2010), the Federal Circuit held that the statutory assignment of the United States' rights in ' 292(b) operates to confer standing on an individual as long as the individual alleges that the United States suffered an injury in fact, causally connected to the defendant's conduct that is likely to be redressed by the court. On remand, the court left open the question of the sufficiency of Stauffer's allegations and instructed the district court to examine whether he had properly pled the “intent to deceive” requirement to meet the heightened pleading requirements for claims of fraud imposed by Rule 9(b). Id. at 1328. As such, a challenge to the sufficiency of intent to deceive allegations may provide an effective defense in future false marking actions. Likewise, although the court did not rule on the issue, amicus Ciba presented an interesting attack on the constitutionality of ' 292 that could also provide a useful defense for manufacturers.