The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge
Pro se plaintiff Raymond E. Stauffer brings this qui tam action against Brooks Brothers, Inc. and its parent company, Retail Brand Alliance, Inc. (collectively, "Brooks Brothers") alleging false patent marking in violation of section 292 of the Patent Act. 35 U.S.C. § 292. That section prohibits a person from marking an "unpatented article" with words "importing that the same is patented, for the purpose of deceiving the public." Id. It further provides that "any person" may sue for damages, and if damages are imposed under the statute, "the person suing" is to receive one-half and the United States is to receive the other half. Id. Stauffer contends Brooks Brothers has falsely marked the bow ties it manufactures and sells with the phrase "The Original Adjustolox Tie Reg'd & Pat'd U.S Pat. Off. 279346 -- 2083106 -- 2123620" when, in fact, each of those patents expired more than a half a century ago. Stauffer thus argues Brooks Brothers should be held liable pursuant to section 292 and that he is entitled to one half of any penalty imposed.
Brooks Brothers now moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1). In particular, Brooks Brothers contends that Stauffer lacks standing to pursue this action because he has not alleged any injury in fact, and that dismissal pursuant to Rule 12(b)(1) is therefore appropriate.*fn1 Stauffer counters that section 292 creates a qui tam cause of action because it allows "any person" to bring suit to recover penalties, and therefore, Stauffer has standing as a relator in the place of the government to pursue the action on behalf of an injured public.
Because the Court finds that Stauffer, proceeding as a qui tam plaintiff, fails to allege a cognizable injury in fact to the United States or such an injury to the public that has been assigned to him by the government, it concludes that he lacks standing to pursue the penalties imposed by section 292. Accordingly, defendants' motion to dismiss the complaint is granted.
The following facts are taken from the complaint unless otherwise noted and are presumed to be true.
Since 1818, Brooks Brothers has been a manufacturer and retailer of men's and women's clothing, and, of particular importance to the present litigation, men's bow ties. (Id. ¶¶ 5, 17-18.) Brooks Brothers is wholly owned by defendant Retail Brand Alliance. (Id. ¶¶ 6-7.)
Stauffer is a practicing patent attorney*fn2 and, on several occasions, he purchased Brooks Brothers bow ties of the variety at the crux of this action at Brooks Brothers stores. (Id. ¶¶ 4, 23; Ex. C to Pl.'s Compl.)
B. Defendants' Bow Ties and the Adjustolox Patents
Brooks Brothers currently manufactures and sells more than 120 different bow ties. (Id. ¶ 24.) While the various bow ties differ in design, fabric, and style, all of them are "adjustable"-that is, wearers can alter the length of the tie by using a sliding metal device to ensure that it fits comfortably around the wearer's neck. That sliding metal device-"the Adjustolox"-was at one time covered by at least two patents: patent 2,083,106, which was issued in 1937, covered an "Adjustable Necktie" and expired in 1954. Patent 2,123,620, which was issued in 1938, covered a "Facing Band and Multiple Band Strip" and expired in 1955.*fn3 (Id. ¶¶ 19-20.)
Despite the fact that both patents have long since expired, according to the complaint, Brooks Brothers' bow ties continue to be embroidered with a label stating: "The Original Adjustolox Tie Reg'd & Pat'd U.S Pat. Off. 279346 -- 2083106 -- 2123620." (Id. ¶¶ 18, 24.) Stauffer alleges defendants knew or should have known that the patents had expired and that their bow ties therefore were no longer patented articles. (Id. ¶¶ 114-15.) Plaintiff further contends that Brooks Brothers has manufactured tens of thousands of these falsely marked ties and continues to design and produce new bow ties, all of which are similarly improperly embroidered with the false mark. (Id. ¶¶ 46-47, 51.)
C. The False Marking Statute
Section 292 of the Patent Act proves that any person who "marks upon [or] affixes to . . . any article, the word 'patent' or any word importing that the same is patented, for the purposes of deceiving the public . . . shall be fined not more than $500 for every such offense." 35 U.S.C. § 292(a). Section 292(b) then provides that "any person may sue for the penalty, in which event one-half ...