Wham-O takes on patent whistleblowers

frisbeesThe Wham-O company, maker of the Frisbee, is arguing to a federal appeals court that a qui tam provision in patent law is unconstitutional.  Wham-O’s lawyer, Andrew Dhuey, told Law.com that the patent law, 35 U.S.C. § 292, violates the Constitution’s "take care" clause which says that the President shall take care to enforce federal laws. "Here there’s no notice," Dhuey said. "They’re blind to it. The government can’t control litigation it knows nothing about. That is a fatal flaw of this statute, no notice to the government." The patent law allows qui tam actions to pursue remedies against companies that make false claims about the patent protections of their products. "The lack of specific notice to the government of pending false marking cases deprives the executive branch of any practical means to ‘take care’ that the nation’s sovereign interests are represented in court," Dhuey said. Apparently, it is in our national interest that Frisbees can bear false claims about their patent protections.

The federal court in Pittsburgh dismissed the case on ground that plaintiff FLFMC LLC lacks standing. FLFMC points to Stauffer v. Brooks Brothers, Inc.,. ___ F. 3d ___, 2010 WL 3397419 (Fed. Cir. Aug. 31, 2010), in which the Federal Circuit said patent qui tam plaintiffs do have standing. The patent law is sufficiently different from the federal False Claims Act (FCA) so that a victory by Wham-O should not impair claims by FCA whistleblowers. Still, it would serve the public interest if the Federal Circuit would recognize that Congress can authorize private citizens to help enforce federal laws.

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