Industry reps sent us an email yesterday drawing our attention to several lawsuits that have been brought against JT USA and Kee Action Sports involving patents.
Some media have gone the ‘titillating headline’ route in describing the lawsuits, making it sound as if the companies mentioned are embroiled in some high-level wrong doing involving paintball patents. (Nothing wrong with titillating headlines – we’re guilty of enjoying the same pleasure over here at 68Caliber. However, we believe that the responsible thing to do in such cases is to make sure that the content of the article fully explains the situation – a responsibility that does not seem to be respected by all paintball media outlets).
In fact, Kee and JT have gotten caught up in the latest of what can only be described as ‘nuisance patent lawsuits’.
Back in September, the Wall Street Journal brought this latest round of somewhat scammy litigation to our attention with an article entitled “New Breed of Patent Claim Bedevils Product Makers”
Here’s the summary: it is illegal to place expired patent numbers on product and/or to place patent numbers on product that isn’t covered by a patent.
The leading example in the WSJ piece involves Brooks Brothers Ties. (Yes, ties, like the ones you wear around your neck). An enterprising attorney realized that the ties were being marketed with an attached expired patent number and then threatened legal action against the company, which decided to go to court rather than settle.
The courts ultimately made a ruling that changed the way awards are given in such cases, ruling that instead of being able to recover $500 for the infraction, those who bring such lawsuits can recover $500 PER OFFENSE. In this case, that means PER TIE.
Anyone have any idea how many ties Brooks Brothers sold with the verboten patent number on them? (According to WSJ “Brooks Brothers had erroneously marked 120 different styles of ties…”. That’s styles, not ties. You do the math. If BB made only 1,000 each of the 120 different styles, and you multiply it by $500 per tie, you’re talking 60 million dollars.)
Following the ruling on fines,
According to Chicago-based merchant bank Ocean Tomo, which tracks patent suits, nearly 350 federal lawsuits have been filed since the December appellate court ruling. – WSJ
Legions of people are scouring the countryside, examining everything from toothpaste tubes to bow ties, so that they can bring largely frivolous lawsuits against companys that, for the most part, have done nothing wrong – with the exception of failing to update their packaging.
The upshot of it is that several large law firms have taken up the mantle of this quest and are adding to that pile of 350 lawsuits as quickly as they can.
Kee Action Sports, which has acquired numerous companies over the years, including JT Racing/JT USA, is probably a victim of allowing this packaging issue fall through the cracks.
But the headlines surrounding this issue (Kee Involved in Patent Lawsuit or some such) – which make it sound as if the company was guilty of some high crime – does not describe reality: all Kee did (if in fact they did anything wrong) was probably fail to take an expired patent number off of some of its masks and other product. Consumers are not harmed by the presence of the printed number, the product has not changed and no one’s patents were infringed.
Other paintball companies with patents – expired or otherwise – would do themselves a good turn by checking their expiration dates and making plans to remove this “damaging” information from their products and packaging at the appropriate times.
Read the WSJ piece for a really good overview of the situation.