Brooks Bows’ Patent Problem

A Brooks Brother shop in New Jersey found itself an unexpected pioneer in stormy legal seas recently when patent attorney Raymond E. Stauffer happened by and saw a fleet of sharp-looking bow ties on mannequins in storefront display windows.

The problem? The neckwear’s decoration: expired United States patent numbers. U.S. patent law prohibits expired patent numbers being used on currently-for sale products. Mr. Stauffer sued the retailer in federal court, with unexpected consequences… a swarm of similar arose, attacking products from pop-up turkey timers to toothpaste. Each product under attack is alleged to come in a container bearing, or be imprinted with, a U.S. patent number which is expired.

Previously, companies found to have thus marked their products were considered “anti-competitive” and required to pay a $500.00 fee for misleading consumers. Now, the rule has become $500.00 per offense. Conceivably, that means that every mis-marked turkey timer out there could cost its maker $500.00.

It’s a surprising development in patent law, where the expired patents are generally of little interest: products come out and are patented and their packaging is marked with that patent, which expires with little fanfare over the years; the expiration is rarely a memorable enough occasion to remind anybody to get a new one, and the product continues to be sold bearing the old number.

Large holding companies, which might make and sell everything from lip balm to contact lenses, are especially worried: they make so many products and hold so many patents that it’s nearly impossible to stay on top of what is expiring, and when. Further, most manufactured good hail from overseas, where they’re stamped out by molds in factories. Foreign manufacturers aren’t overly eager to switch out all of their product molds, which are imprinted with the old patent numbers, for new molds, which would print products with the new numbers.

Would-be plaintiffs have so far taken advantage of federal whistle-blower laws. That set of laws allows private citizens to file claims on behalf of the government of the United States, and evenly split any return.

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