The Legal Pulse last week assessed a U.S. Court of Appeals for the Federal Circuit ruling in a case involving a Brooks Brothers bow tie marked with a number for an expired patent.  We noted how the court, in ruling for the plaintiff, acknowledged but refused to address a constitutional issue raised by an amicus brief.  The brief, filed by CIBA Vision Corp. supporting Brooks Brothers, argued that Congress cannot delegate Article II, Section 3′s power that the Executive Branch “take Care that the Laws be faithfully executed” to private citizens without retaining ultimate control over the litigation.  Our post expressed hope that future litigants would bring the constitutional issue squarely before a court.

A Legal Pulse reader this week was kind enough to let us know that we had overlooked a live, pending constitutional challenge to 35 U.S.C. § 292, which permits private parties to sue alleged patent mismarking offenders on the government’s behalf.  The North Carolina Farmers’ Assistance Fund sued a number of companies for alleged false patent marking in the Middle District of North Carolina.  One of the companies, Pioneer Hi-Bred International, has defended itself on the basis that because § 292 contains no procedural safeguards to ensure that the Executive Branch has “sufficient control” over the litigation, it violates Article II, Section 3 of the Constitution.  Once the government became aware of this claim, it intervened in the case and asserted a vigorous defense of the statute and private plaintiffs’ right to sue on the government’s behalf.  Pioneer’s response to the government’s brief makes a compelling argument on the constitutional issue.

Pursuant to the district judge’s request, Pioneer also filed a supplemental brief which argued the court should not follow the only reported opinion on the constitutional issue, from another district court in Virginia in the Pequignot v. Solo Cup Co. case.  As Pioneer explained, in Pequignot, the court only had the benefit of the government’s position on these issues, as Solo Cup did not respond to the government’s arguments in its briefs or at oral argument. 

According to our reader, the North Carolina Farmers’ Assistance Fund case was orally argued two weeks ago.  We’ll keep a more watchful eye out for that decision, as should all who are plagued by these bounty hunter suits.