EOC Week 5: Patent Trolls

When reading the article "New Breed of Patent Claim Bedevils Product Makers" by Dionne Searcey from the Wall Street Journal, I was surprised on the outcome of the case. Raymond E. Stauffer who is a patent attorney in Roseland, NJ sued Brooks Brother Inc. in Federal Court because they labeled their bow ties with expired patents from 1950. The Federal Circuit Court of Appeals reversed a lower court ruling that had dismissed Stauffer's case saying he didn't have standing to bring it. I guess I was shocked that companies with such profit and value are marking their merchandise with expired patents, which is against the law. Why put yourself in jeopardy of being fined or caught? I mean that is a patent trolls job. "A patent troll is a disparaging term for someone who sues for patent infringement but who does not make or sell any products using the patented technology. In other words, the patent troll is in the business of sueing companies, not in the business of making or selling anything." (Patent, Copyright & Trademark pg. 112) "It absolutely is a startling development in the interpretation of that provision," says Michael C. Smith, a defense lawyer from Marshall, Texas, who is representing Wal-Mart Stores Inc. and mouse-trap maker Kness Mfg. Co. in suits claiming false patent marking. "A lot of these products always have patent numbers on them, and it never occurred to anyone to take them off." Mr. Smith, who declined to discuss the lawsuits he is handling, says he generally advises clients: "Now is a good time for you to have somebody run down your products" and check their patent numbers. Patents have a life span of 17 or 20 years. To keep them valid, companies must pay maintenance fees every four years. Once they expire, the holder is expected to remove the numbers from products. "A patent is a right provided by a government that allows an inventor to prevent others from manufacturing, selling, or using the patent owner's invention. This right covers the invention as specifically described in the patent application's claim alowed by the U.S. Patent and Trademark Office or other patent-examining agencies in other countries." (Patent, Copyright & Trademark pg. 101) The way Stauffer calculated the liability against Brook Brothers I feel should have had a different outcome. They marked 120 different styles of ties, which sell for about $45 to $100 a piece. But he did say he didn't know how many individual ties were falsely marked, that accurate number of knowing probably would have helped his case slightly. "I would have settled this case for $25,000 back in December of 2008," Mr. Stauffer says. "Brooks Brothers, however, seemed eager to want to litigate the case, and I was delighted to give them the opportunity." So far, none of the suits have reaped the gigantic awards that plaintiffs say could be possible. "Claims are statements included in a patent application that describes that structure of an invention in precise and exact terms, using a long-established formal style and precise terminology. Most patent applications contain more than one claim, each of which describes the invention from a slightly different viewpoint." (Patent, Copyright & Trademark pg. 38) Some of the cases have settled because companies fear a bad outcome or don't want to incur large legal fees fighting them. "You're paying the hostage fee," says Mark Willard, a lawyer who represented hand-tool manufacturer Ames True Temper Co. in a suit involving a shrub rake. "It was manufactured in China using an old mold that still had the expired patent number on it," says Mr. Willard, adding that the company has long had in place a policy of monitoring patents. "This one fell through the cracks."