Courts Mix in Choices of Whistleblowing Cases


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Brooks Brothers is a funny place to find the knotty problem of a whistleblower case. Yet when Ray Stauffer went shopping for a tie at a local mall, he noticed something out of the ordinary…their patent numbers. In the game of trivial pursuit patent, the numbers 2,083,106 and 2,123,620 would be recognized as old and expired patent registrations[1]. They expired, respectively, in 1954 and 1955.

Perhaps unawares, Brooks Brothers had been sticking its own neck out.

Stauffer did more than wonder why the bow ties were sporting such clashing digits. He suspected the ties were simply discouraging infringement, without new patent protections.

Unlike most traditional whistleblowers, Stauffer is not “merely” a private citizen. Stauffer is also a  fairly well-known patent attorney, with an expertise for recognizing good bow ties from bad patent registrations. In 2010, Stauffer has also became part of an impressively increasing new number: almost 500 false marking whistle blowing claims this year alone[2].

False marking claims derived from some of the earliest, Civil War rules to encourage whistleblowing by employees and private consumers. At first, the federal district court sided with Brooks Brothers, and dismissed the Stauffer suit[3] on the grounds there had to be proof of actual harm to a competitor. In other words, mere technical violation of the law was not enough.

Not so fast, the appellate court said, and reversed the court’s tie-in to the tort requirement of actual harm. Stauffer’s case was reinstated, and the case goes on. But perhaps only for a tailoring. The appellate court rejected one aspect of tort theory, but requested a trial court ruling on another…whether the fraud aspect of Stauffer’s claim was sufficient to satisfy requisite evidence of Stauffer’s standing. Ironically, this makes it very possible that Stauffer’s case will be dismissed a second time, and a higher standard yet will be imposed for false mark cases.

Regardless, it now becomes virtually certain the Supreme Court will eventually be called to review this peculiar whistle blowing case of the suit and tie.

[1] For example, some companies find and seize expired patents. Earnest Appple, for example:

[2] Inside Counsel (November, 2010).




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