Patently False

Little did Raymond E. Stauffer realize that all hell would break loose when he noticed an expired patent number on a Brooks Brothers bowtie, reports Dionne Searcey in the Wall Street Journal (9/1/10). Raymond is a patent lawyer and he knows an outdated patent number when he sees one — in the case of the Brooks Brothers adjustable bowtie, the patent had expired in the 1950s. It’s illegal to use old patent numbers mainly because it’s considered anti-competitive, given that the practice effectively discourages others from entering a market.

The fine is nominal, just $500 per violation. But after Raymond filed his bowtie suit against Brooks Brothers, a separate ruling found that companies are liable for $500 per item — in other words, $500 for each and every individual Brooks Brothers bowtie (there are 120 different ties) carrying a false patent. This would add up to huge numbers not only for Brooks Brothers, but also companies including Procter & Gamble, Walmart, Cisco Systems, Merck and 3M, all of which apparently have products on the market with expired patent numbers on them.

Some defendants claim it’s just an oversight: "A lot of these products always have patent numbers on them, and it never occurred to anyone to take them off," says an attorney representing Walmart. Others are dismissive: "These cases have forced companies to spend time, money and resources investigating claims where there really isn’t any injury to anybody," says another defending attorney. But Daniel Ravicher of the Public Patent Foundation feels quite differently about using expired patent numbers. "It chills competition, it misleads the public and takes away from the credit patent holders deserve," he says.