I don't see any of the above as a bad thing. (And I also disagree that these cases can practically be filed in one's sleep--try to write a sufficiently pled complaint for this type of case and you'll see it's never rote.) ...You might guess from the above that I also like law firms that file tons of class actions on consumer law issues... IMHO these classes of cases represent, on the whole, the immune system of our democracy, and we're sicker when the legislatures or the courts defang them.
As for whether it's a bad thing, I guess it depends on whether the cure is worse than the disease. Even assuming no fines are levied for the expired-marking cases, if the suits in progress average $200K to defend, that's over 100 million in costs that are going to reduce tax revenues and/or eventually come out of consumer's pockets in the form of increased prices. But spread out, I guess that's not really a big deal. But I've also talked with a number of in-house guys at CLEs and, at least from this very small sampling (6 companies, IIRC), companies are instituting no-marking policies on the view that it's better to just closely monitor their larger competitors than defend false marking suits. If this becomes a trend, then whatever value there had been to the public in proper marking (assisting design-around innovation comes to mind) will be lost. And I just don't believe that the effects of this particular disease (expired marks) are meaningful, if they exist at all (some commentary below your other inserted quote).
To rote or not to rote... ...guess we'll have to disagree. I've read or skimmed hundreds of these expired-marking complaints, and they look pretty rote to me. In the first couple of months they were not, but hundreds of follow-ons are practically cookie-cutter versions even as between differing plaintiffs. There are variations I've seen over time - for example when a judge dismisses for insufficient pleading, the fix for that perceived initial pleading error has crept into later pleadings pretty much across the board. As an example, everyone now includes a section where they allege concrete harm to consumers and competitors, something that was missing in most of the earlier filings.
No argument on the intrinsic value of class cases in consumer protection. Unfortunately for me (and this is likely not fair), the only ones that stick in my mind are the ones I perceive as addressing the underlying problem but failing to provide adequate redress to the consumer. Like price-fixing schemes on consumer goods where the approved settlement includes ~$24 million in fees to the firms, the named plaintiff(s) gets a few thousand, and the injured consumers get... ... coupons to save 25%
on their next purchase of the offending product. Still, at least the problem
is fixed, so I agree as to value. But having been one of those coupon recipients, see it through a bit of jaundice.
(from other post)
I disagree that consumers do not pay any attention to the word "PATENTED!" and that companies do not go out of their way to advertise something as patented. I think it holds a lot more consumer cachet, and does more to increase the value of the brand, than sillier packaging space-wasters like "AS SEEN ON TV!" and "SPACE-AGE TECHNOLOGY!" (Admittedly, you don't see the latter too much anymore...
Clearly some companies do think so. But you mentioned taking a poll on "patent leather"(*). I'd argue that the companies who agree with you have not done any polling in this regard. But I can tell you from personal experience that at least the marketing departments of 4 large consumer-product makers who have done polls (aka market research) complain that patent marking is just a burden pushed on them by the legal department, for some nebulous legal purpose they don't care to understand.
And please recall that the vast majority of these suits relate to expired marks. To the extent a company relies on shouting "PATENTED!" for marketing, it seems to be when the product (and patent) are new to the market, not for 20+ year old products. When you get to the 20 year stage, no one is proclaiming "PATENTED!" in their advertising glossies. Unless the product has a newly patented improvement, but then that would not be expired. Instead, it's generally a case of the patent number still being printed on the back of a box that no one at the company (until these lawsuits) thought to look at, or even if they looked at it didn't think to talk to the patent department about it. Heck, I went through my wife's bathroom cabinet about a week ago and found 2 items purchased in the last few months that had old patent numbers printed on the back of them. One package had a 1995 copyright date, the other 1998, so apparently neither packaging has been updated for over a decade. But unless those companies are asleep at the wheel, I'm betting the packaging is in the process of getting a new copyright date now!
* @ Jim - we interchangeably (and incorrectly) referred to our dress shoes as "Corfams" and "Patent Leathers". Last I heard this was still the case. As to whether I follow fashion and patent leather pumps and purses, further this deponent sayeth not.
