Yogi Berra once said “[i]f you don’t know where you are going, you might wind up someplace else.” For the past year, Yogi’s words have aptly described qui tam false marking jurisprudence. Recently, however, several rulings have provided some clarity concerning two important issues:
1. the requirements for a qui tam plaintiff to establish standing; and
2. whether the intent to deceive element of a false marking claim is subject to Rule 9(b)’s heightened pleading standard.
In Stauffer vs. Brooks Bros., Inc., Nos. 2009-1428, 2009-1430, 2009-1453, 2010 WL 3397419 (Fed. Cir. Aug. 31, 2010), the Federal Court held that “any person” really does mean “any person” when it comes to a qui tam plaintiff’s standing to bring a false marking claim. At issue there were bow ties purchased by the plaintiff (a patent attorney) from Brooks Brothers. The ties, marked with patent numbers which expired in 1954 and 1955, contained an “Adjustolox” mechanism manufactured by a third party.
In December 2008, the plaintiff commenced a qui tam action under 35 U.S.C. § 292. On Brooks Brothers’ motion, the district court dismissed the case for lack of standing, holding that Stauffer failed to sufficiently allege that the United States had suffered an injury in fact from Brooks Brothers’ false marking. The district court also found that the plaintiff’s allegations of his own injury were not properly alleged, and that even if they had been, they would only support an injury to him, not to the public, and could not provide a basis for standing.
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