Blawgletter recalls early on hearing about "the bow tie rule". People who wear bow ties, the rule supposes, want to stand out. They regard themselves as unique. They desire others to see visible proof of their disdain for norms, wardrobe-wise and otherwise. And you don't want them on your jury. They'll tend to disagree with other jurors for the same reason they wear bow ties. You'd rather not risk the bow tie guy hanging your jury.
The Federal Circuit dealt with bow ties yesterday for a different reason. Raymond E. Stauffer sued Brooks Brothers for selling him bow ties whose BB tags showed the seven-digit numbers of patents that had expired in the 1950s. He based his claim on a qui tam statute, 35 U.S.C. 292, which allows "any person" to recover up to $500 "for every" instance of falsely marking an item with a dead, invalid, or otherwise unenforceable patent number. The district court ruled that Mr. Stauffer lacked standing because he didn't suffer any injury as a result of the false-marking. The court also denied the U.S. government's motion to intervene.
The Federal Circuit panel reversed on both grounds. Mr. Stauffer could sue, the court held, because the federal government had by statute assigned its right to police false-marking to the public at large, a group that included the patent attorney. It also concluded that the government had a right to intervene due to the fact that "the government would not be able to recover a fine from Brooks Brothers if Stauffer loses, as res judicata would attach to claims against Brooks Brothers for the particular markings at issue." Stauffer v. Brooks Bros., Inc., No. 09-1428, slip op. at 15 (Fed. Cir. Aug. 31, 2010).
The same court late last year loosened the strictures on penalties for false-marking in The Forest Group, Inc. v. Bon Ton Tool Co., 590 F.3d 1295 (Fed. Cir. 2009), requiring district courts to impose the statutory fine of up to $500 per article instead of for a course of conduct (e.g., falsely marking a bunch of bow ties with the same patent number). See False Patent Marking Gets Fine "Per Article", Federal Circuit Rules.
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