The Eleventh Plague

It looks like someone may finally stop that annoying Energizer bunny. (Turek v. Energizer Holdings, Inc.)

As the reader undoubtedly knows, Energizer Holdings is the source of those lithium batteries touted by that irritating pink spokesrabbit. Energizer Holdings is a Missouri corporation, with its principal place of business in that state. Morris Turek is an individual residing in St. Louis. Turek sued Energizer Holdings in the U.S. District Court for the Southern District of Illinois – how do we spell “forum shopping” – alleging false patent marking. Turek accused the folks at Energizer Holdings of selling their batteries in packages bearing the legend, “Covered by one or more U.S. Patent Nos.,” which is followed by a series of patent numbers, “including in each case at least three numbers associated with … Expired Patents.” The dastardly fiends!

Previously, parties accused of false marking have sought to defend themselves by challenging the standing of the “relator” (the “plaintiff” or, in defense bar parlance, the “bottom-feeding low-life”) to sue. As any of our faithful readers is aware, this defense has proven unsuccessful (see, for example, "A Vanishing Opportunity?" where we discuss Stauffer v. Brooks Brothers, Inc.). More recently, accused parties have focused on the element of intent, arguing that the relator had failed to plead, with the requisite specificity, that the alleged false marking was done with the intent to deceive the public.

Turek, apparently anticipating this defense, pled that “Defendant is a sophisticated business entity and is the holder of a large number of patents … [which] monitors its own patents and those of other companies through both in-house and outside counsel … [and] has been a party to several federal cases involving patents and/or alleged patent infringement, including at least two cases in which it has been alleged that Defendant falsely marked its products with expired patent numbers … “

Well, there it is! Heretofore, we had serial killers, serial rapists and serial child molesters. Now, we also have to contend with serial false markers. Never mind that our courts are already overcrowded. I, for one, thank goodness for people like Morris Turek who bring these cases in an effort to stamp out this plague of false marking which is upon us.