The Federal Circuit Court of Appeals has dismissed claims that the America Invents Act (AIA), which made significant changes to the false-marking statute on which a plaintiff’s claim was based, was an unconstitutional pardon for those who had allegedly violated the law before it was amended and violated the common-law principle that prohibits the use of a pardon to vitiate a qui tam action after it has been filed. Stauffer v. Brooks Bros. Group, Inc., No. 2013-1180 (Fed. Cir, decided July 10, 2014). The lawsuit involved claims filed before the AIA was enacted that Brooks Brothers had violated the false-marking statute by marking its bow ties with expired patent numbers.

Finding that it had jurisdiction to consider the appeal because a decision on the merits would likely redress the plaintiff’s alleged injury, the court characterized the false-marking statute amendments—eliminating the qui tam provisions and allowing only those with a competitive injury to bring a claim, excluding expired patent marking from the false-marking provisions and applying the provisions to pending cases—as “repealing a law, an action undoubtedly within Congress’s power.” The court also determined that “this is not a case where Congress attempted to set aside an already adjudicated punishment for a specific individual or a group of individuals; rather, Congress repealed the provisions of the false-marking statute that it did not wish to remain in force. The amendments, therefore, do not constitute a pardon.”

The court further held that the AIA amendments did not violate a common-law principle because the plaintiff had no vested rights in his pending lawsuit and the AIA amendments are not a pardon. Agreeing that the remainder of the plaintiff’s arguments were waived because they were not timely raised, the court did not address them. Accordingly, the court affirmed the dismissal of his suit “for lack of standing due to the elimination of the qui tam provision in the false-marking statute.”