Frisbee producer Wham-O is bringing a case to the US Court of Appeals for the Federal Circuit challenging a statute that allows whistleblowers to sue companies for falsely labeling their products as covered by patents. 

The plaintiff of the suit, FLFMC, originally brought the case against Wham-O and it was dismissed in early August by Pennsylvania District judge Arthur Schwab. Schwab based his dismissal on FLFMC's inability to show that Wham-O’s false patent marking caused any “actual or imminent injury.”

But, confidence that the argument made by Wham-O attorneys will hold up in the Federal Circuit Court is low because of the precedent set on August 31 by the Court in Stauffer v. Brooks Brothers Inc. The Stauffer court held that whistleblowers can have standing even without identifying any specific injury.

The new argument being brought by Wham-O is a constitutional challenge that the false marking statute fails to provide the necessary supervision required for a litigant who purports to enforce criminal law on behalf of the US government. During false-marking cases there is no way on the forms to notify the government that the case involves false markings, Wham-O argues that this “deprives the executive branch of any practical means to take care that the nation’s sovereign interests are represented in court.”