Saturday, April 30, 2011

Another false marking case dies

One has an interesting fact pattern in this qui tam case:

Juniper makes and sells computer networking prod-
ucts to businesses, including a variety of firewall prod-
ucts. Juniper asserts that Shipley, an alleged computer
“hacker,” has maintained a website at the URL
(the “Website”) since 1995, ostensi-
bly for the “hacker community.” Am. Compl. ¶¶ 9, 12
(May 19, 2009). Juniper further alleges that Shipley has
maintained the Website at his homronment connected to the internet.

Juniper is asserting 35 U.S.C. § 292 against Shipley.

Juniper loses: Because Juniper’s Amended Complaint does not
reasonably allege an “unpatented article” within the
meaning of 35 U.S.C. § 292, this court affirms.

Within the case:

“Without jurisdiction the court cannot proceed at all
in any cause.” Ex parte McCardle, 74 U.S. 506, 514
(1868). In Stauffer, 619 F.3d at 1325, decided after Ship-
ley filed his brief, this court addressed the issue of qui
tam standing under the false marking statute. The court
held that (a) “a violation of [§ 292] inherently constitutes
an injury to the United States”; (b) a qui tam plaintiff
“has standing to assert the injury” to the United States,
regardless of whether the plaintiff has suffered any
individual injury; and (c) the qui tam plaintiff’s standing
“does not depend upon the alleged injury to the United
States being proprietary, as opposed to sovereign.” Id. at
1325-26. Thus, even if the United States suffers no
proprietary injury involving diminishment of the federal
treasury, the Patent Act makes deceptive patent mis-
marking “an injury to the United States.” Id. at 1325.
Because the United States suffers an injury when the
false marking statute is violated, Juniper had standing to
assert a qui tam claim against Shipley under 35 U.S.C. §


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