Defensive Strategies in False Marking Suits After Stauffer and Pequignot

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1 Defensive Strategies in False Marking Suits After Stauffer and Pequignot Contributed by Angie M. Hankins, Stroock & Stroock & Lavan LLP Many companies inadvertently mark their products with expired patents. Because a plaintiff may establish intent to deceive the public by presumption, these companies may be sued and subject to thousands of dollars in legal fees and penalties. Indeed, since December 2009, there have been more than 350 false marking suits, compared to the ten years prior to 2010 during which there had only been 42 such suits. The U.S. Court of Appeals for the Federal Circuit's December 2009 decision in Forest Group, Inc. v. Bon Tool Company 1 dramatically changed the landscape by holding that the penalty for false marking is assessed on each falsely marked product, rather than each decision to falsely mark a product. As the Federal Circuit subsequently noted in Pequignot v. Solo Cup Company, the result of this holding is that companies that falsely mark products with patent numbers, however inadvertently, are potentially subject to billions of dollars in damages. 2 The Forest Group decision was followed on August 31, 2010 by the Federal Circuit's decision in Stauffer v. Brooks Brothers, Inc, which was filed in December Patent attorney Raymond Stauffer alleged that Brooks Brothers had sold bow ties that it had falsely marked with expired patent numbers. Ruling that an injury in fact is required to sue, the district court found that Stauffer did not have standing to bring the false marking suit because he had not established that he had suffered an injury. The Federal Circuit reversed, holding that Stauffer did have standing via the sovereign injury sustained by the government and did not need to plead a separate injury to himself. 4 Following the Forest Group and Stauffer decisions, patent owners are understandably concerned about their potential liability in false marking cases. This article examines some of the defensive strategies that remain, in light of these and other decisions, for patent owners who inadvertently mark their products with expired patents. Marking and the False Marking Statute A patent owner is required to provide notice to the public by marking a patented article. 5 Patent owners that fail to mark are limited in the amount of damages they may recover, and can only recover damages for acts of infringement that occur after the infringer receives notice of an infringement claim. However, under Section 292 of Title 35 of the United States Code anyone that marks an unpatented item as patented or patent pending when no application has been filed, for the purpose of deceiving the public, can be fined up to $500 for each false marking offense. 6 Even though it is criminal in nature, Section 292 is a civil qui tam statute that authorizes a private plaintiff (referred to as a "relator" or an "informer") to pursue an action on behalf of the government. 7 If the relator The discussions set forth in this report are for informational purposes only. They do not take into account the qualifications, exceptions and other considerations that may be relevant to particular situations. These discussions should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Any tax information contained in this report is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. The opinions expressed are those of the author. Bloomberg Finance and its affiliated entities do not take responsibility for the content contained in this report and do not make any representation or warranty as to its completeness or accuracy.

2 prevails, one-half of any award is forfeited to the government, with the relator receiving the other half. 8 A false marking claim must be asserted within five years from the date each article was marked, and not from each decision to mark. 9 The relator must prove by a preponderance of the evidence that the defendant marked an unpatented article with a patent number with the intent to deceive. 10 An "unpatented article" means that the article in question is not covered by at least one claim of each patent with which the article is marked. 11 In Pequignot, the Federal Circuit clarified that a patented article becomes an unpatented article when the patent expires. 12 The test for intent to deceive is the state of mind that arises when a party acts with sufficient knowledge that its statement is not true and consequently that the recipient of its statement will be misled into thinking the statement is truthful. 13 Although intent to deceive is subjective in nature, a rebuttable presumption is established by objective proof of a false statement coupled with the accused party's knowledge that the statement was false. In order to prove that the defendant knew that the statement was false, the relator must show by "a preponderance of the evidence that the accused party did not have a reasonable belief that the articles were properly marked." 14 The presumption cannot be rebutted by the accused party's unsupported assertion that it did not intend to deceive the public. 15 The Relator in a False Marking Suit Has Standing Without a Personal Injury In Stauffer, Brooks Brothers had manufactured and sold bow ties that contained an "Adjustolux" mechanism, which a third party manufactured and marked with two patent numbers that expired in the fifties. Stauffer purchased some of the marked bow ties, and subsequently filed a suit alleging that Brooks Brothers falsely marked its bow ties in violation of Section 292. Brooks Brothers moved to dismiss, alleging that Stauffer lacked standing under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and failed to plead intent to deceive the public with the specificity necessary to meet the heightened pleading standard for fraud claims under Rule 12(b)(6). The district court granted Brooks Brothers' motion under Rule 12(b)(1) finding that Stauffer lacked standing because he had not sufficiently alleged that the United States suffered an injury in fact from Brooks Brothers' false marking. On appeal, the Federal Circuit found that because Section 292 is a qui tam statute, Stauffer could establish standing based on the government's partial assignment of its damages, and without suffering a personal injury himself. The Federal Circuit also found that by enacting Section 292, Congress had inherently defined the government's injury in fact as a violation of Section 292. Thus, the Federal Circuit reasoned that because "the government would have standing to enforce its own law, Stauffer, as the government's assignee, also has standing to enforce section 292." 16 The Federal Circuit stated that both the district court and Brooks Brothers had erred in conflating jurisdiction with the merits: the district court by holding that "Stauffer had failed to sufficiently allege a 'purpose of deceiving the public'" and Brooks Brothers by arguing that Stauffer must show that the false mark is traceable to Brooks Brothers rather than the Adjustolux manufacturer. 17 Standing does not depend on the merits of the case. The Federal Circuit remanded the case to the district court "to address the merits of the case, including Brooks Brothers' motion to dismiss pursuant to Rule 12(b)(6) 'on the grounds that the complaint fails to allege an 'intent to deceive' the public a critical element of a section 292 claim with sufficient specificity to meet the heightened pleading requirements for claims of fraud imposed by' Rule 9(b)." 18 Defensive Strategies that Remain After Stauffer and Pequignot

3 Even after Stauffer, important avenues remain for a marking defendant seeking to end a false marking case quickly. Attack the Complaint First, a false marking defendant can challenge the complaint for failing to state a claim under Rule 12(b)(6) one of the issues the district court will consider on remand in Stauffer. Stauffer alleged that Brook Brothers (1) marked its bow ties with expired patents; (2) knew or should have know that the patents were expired; and (3) as a result, "knowingly misrepresented to the public" that each of its marked bow ties was covered by a valid U.S. patent. 19 Stauffer further alleged that Brook Brothers marked its bow ties "for the purpose of, and with the intent of, deceiving the public[.]" 20 Recent district courts have held that because Section 292 is a fraud-based claim, it is subject to the pleading requirements of Rule 9(b) and such pleading would be insufficient to meet the standard. 21 Under Rule 9(b), when "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." 22 Two 23 decisions Advanced Cartridge and Juniper Networks 24 have addressed this in the context of false marking cases. In these decisions, the courts held that a relator must provide specific facts regarding a defendant's knowledge that it was falsely marking products. Thus, it may be difficult to meet the pleading requirements for a false marking claim. Take the Offensive Many marking suits are brought by plaintiffs who hope to minimize their own expenses by coercing defendants to settle quickly rather than face the expense of trial. Marking defendants should consider bringing a motion to sever or a motion to transfer as a means of exerting pressure on the relator particularly in an action where multiple defendants have been in named. In an action where the only commonality among the defendants is that each has allegedly violated Section 292, a motion to sever is likely to be granted. 25 Joinder is permitted "only when there are questions of law or fact common to all defendants that will arise in the action and the claims alleged against each of the separate defendants arise out of the 'same transaction, occurrence, or series of transactions or occurrences.'" 26 Thus, in San Francisco Technology, in which 21 separately owned and operated companies were named as defendants, the court granted a motion to sever, finding that there "is no tenable argument that the claims alleged against each of these separate defendants arise out of the 'same transaction, occurrence, or series of transactions or occurrences.'" 27 San Francisco Technology also considered five motions to transfer under 28 U.S.C. 1404(a). After analyzing the public factors in the interest of justice and private factors in the interest of the parties and witnesses, the court concluded that five factors favored transfer, while three factors were neutral and only one factor slightly favored not transferring the case. 28 As a result, the court transferred six of the defendants to four different jurisdictions, three of which were on the East coast instead of the West coast, thereby increasing the relator's litigation costs and the likelihood of a more favorable settlement. It is noteworthy that any settlement will be binding on the government under res judicata. 29 Finally, after the Federal Circuit's decision in Pequignot, defendants should consider moving for summary judgment on the merits, because the burden for proving false marking is extremely high. Merely asserting that the defendant falsely marked a product is not enough. The relator must show that (1) the defendant knew that it falsely marked the product, and (2) did so with the intent to deceive. As demonstrated in Pequignot, many companies are likely unaware that they are engaging in false marking. And even if a company knowingly falsely marks a product, if it can provide evidence of sound legal and/or business reasons for doing so where there is a lack of proof of intent to deceive, it may be able to establish that there is no intent to deceive.

4 For example, in Pequignot, Solo owned two patents, one directed to cold drink lids that expired in 1988, and a second patent for hot drink lids that expired in Solo marked its lids using thermoforming machines with mold cavities containing the patent numbers that lasted between years. Solo was not aware until 2000 that its patent on cold drink lids had expired in Solo's product development director contacted Solo's patent counsel for advice, and was advised that expired patent numbers did not have to be removed. Solo's attorney later advised that false marking does create liability, but it hinges on intent to deceive; and the "[b]est case scenario is to remove the number, if possible. If not, it is important that Solo not further any unintentional falsity in product literature." 30 Because of the cost of replacing molds, Solo adopted a policy of removing expired patent numbers only when the molds needed replacement. When the patent on hot cold lids expired in 2003, it adopted a similar policy. In 2004, concerned about giving adequate notice of its patents, Solo began marking the packaging of all of its products, both patented and unpatented, with "may be covered by one or more U.S. or foreign pending or issued patents. For details contact 31 In 2007, Pequignot filed its complaint alleging that Solo falsely marked over 21 billion products. On Solo's motion for summary judgment, the district court found that Solo did not have any intent to deceive. The Federal Circuit affirmed the finding that Solo provided more than blind assertions of good faith. Solo's evidence consisted of: (1) its counsel's specific advice, (2) evidence of its true intent to reduce costs and business disruption, (3) a policy that conformed with this intent, and (4) proof that it implemented the policy. The Federal Circuit found that Pequignot failed to provide any evidence that Solo ignored its counsel's advice or displayed any actual intent to deceive. Even though Solo did not follow its attorney's best case advice, its actions were within the scope of counsel's overall advice. Merely because Solo chose one path over another did not evidence intent to deceive. The Federal Circuit also found that the "may be covered" language stated the true situation. Some of the products were covered, while others were not. Thus, the Federal Circuit concluded, it was questionable whether such a statement could be made for the purpose of deceiving the public. Audits and Legal Advice Under Pequignot, a defendant cannot be found guilty if he had no knowledge of the false marking. Even where there is knowledge of false marking and the false marking is continued, intent to deceive is especially difficult to prove where a defendant has business and legal reasons for engaging in the false marking, rather than any intent to deceive the public. Companies that mark products with patent numbers should perform regularly scheduled audits of its marking policies and seek legal advice. The audit should check patent markings on its products for expired or lapsed patents, and take prompt corrective action. As demonstrated in Pequignot, reliance on the advice of counsel and documented business reasons may be used to demonstrate lack of intent to deceive, especially when business reasons prevent immediate removal of expired patent markings. Angie Hankins ( or is a partner in the Intellectual Department of Stroock & Stroock & Lavan's New York office F.3d 1295 (Fed. Cir. 2009). 2 Pequignot v. Solo Cup Co., 608 F.3d 1356 (Fed. Cir. 2010). 3 Stauffer v. Brooks Bros., Inc., Nos , , , 2010 BL (Fed. Cir. Aug. 31, 2010). 4 Id., slip op. at U.S.C U.S.C. 292(a). 7 Pequignot, slip op. at 13; Stauffer, slip op. at 8.

5 8 35 U.S.C. 292(b). 9 Arcadia Machine & Tool Inc. v Sturm, Ruger & Co., Inc., 786 F.2d 1124, 1125 (Fed. Cir. 1986); Advanced Cartridge Technologies, LLC, v. Lexmark Int'l, Inc., No. 10-CV-00486, 2010 BL at 3 (M.D. Fla. June 30, 2010). 10 Forest Group, 590 F.3d at 1300; Clontech Laboratories, Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005) Clontech, 406 F.3d at Pequignot, slip op. at 11. Clontech, 406 F.3d at Forest Group, 590 F.3d at Id.; Clontech, 406 F.3d at Stauffer, 2010 BL at 9. Id. at 11. Id. at 14. Stauffer v. Brooks Bros., Inc., 615 F. Supp. 2d 248, 252 (S.D.N.Y. 2009). 20 Id. 21 Advanced Cartridge, 2010 BL at 2; Juniper Networks v. Shipley, No. 09-CV , Order at 6 (N.D. Cal. May 14, 2009); Berson v. Applied Signal Technology, Inc., 527 F.3d 982, 987 (9th Cir. 2008). 22 Fed. R. Civ. P. 9(b). 23 Advanced Cartridge, 2010 BL at Juniper Networks, Order at San Francisco Technology, Inc. v. The Glad Products Co., No. 10-CV (N.D. Cal. July 26, 2010) Id., slip op. at 9. Id. Id. at Stauffer, 2010 BL at Pequignot, slip op. at 4. Id. at 4-5.

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