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Justice suspended

Lifestyle | A small businessman learns the hard way about predatory "patrollers"

Issue: "Daniel of the Year," Dec. 18, 2010

SOUTHFIELD, Mich.-Twenty years ago Sal Herman, an immigrant to the United States from Israel with a high-school education, figured out how to make a suspender clip that wouldn't slip off the pants it was supposed to hold up. Herman, now 64, received patent 4,901,408 in February 1990. He then founded the Holdup Suspender Company in a Detroit suburb, Southfield.

The company has grown because its website boast is apparently accurate: "The Holdup Suspender Company has the cure for frustrated suspender wearers all over the world. . . . Our exclusive no-slip clip is guaranteed to never slip-slide or pop off your pants." Herman's invention led to jobs for himself, his wife, and three other people, and for employees of his supplier in Taiwan, where the clips are manufactured and etched with his patent number.

In June 2008 the patent expired, but Herman never bothered to remove the expired number from the clips: "Why should I take it off? . . . It didn't hurt anybody." True-but it provided opportunity to a company known as Unique Product Solutions of Dayton, Ohio. Unique on Sept. 1 sued the Holdup Suspender Company for using "invalid and unenforceable patent rights in advertising with the purpose of deceiving the public."

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Unique filed similar suits against 13 companies in July alone. Its lawyers are seizing the opportunity created by a D.C. circuit court ruling in December 2009-Forest Group v. Bon Tool Company-that changed the fine for using an expired patent number from $500 per incident to $500 per unit. It also said anyone could sue without having to prove competitive injury. It gave a financial incentive to sue because plaintiffs split the fines with the federal government.

That ruling jumped the potential fine for Herman's violation from $500 to $40 million: In the past two years his company produced approximately 80,000 clips etched with the expired number, and each one could carry a fine of $500. Unique's potential windfall is $20 million, and Unique is only one of the companies that have become "patrollers," searching for expired patent numbers (those below 5,500,000). When they find them they sue: Since the ruling, 675 false patent marking lawsuits have added to the U.S. litigation load-compared to 37 in the previous two years.

Herman says he could probably settle his lawsuit for $100,000. That's on top of the $30,000 he spent to hire a half dozen people at $10/hour to unbag every suspender in his inventory, grind off the offending number, and rebag them-a process that took seven weeks. But he doesn't want to pay what his lawyer calls a "shakedown" and his wife calls "extortion." Herman prefers to talk about "a travesty of justice." I called Unique to get its perspective, but no one returned my call.

Herman complains that no one ever told him he had to take the numbers off: "It's not the American way. The government just changed the rule 10 months ago." He argues that the patent system, dating from the time Abraham Lincoln was president, is outdated. Having the patent number on his suspender clip didn't keep anyone from innovating, he says. It could actually help competition because Google allows an inventor an easy way to look up the number, see what it covers, and potentially design an improvement-just as Herman did back in the pre-Google 1980s.

In October Rep. Bob Latta, R-Ohio, introduced H.R. 6352, the Patent Lawsuit Reform Act of 2010, to return the situation to the way it was before the circuit court ruling. Latta notes that "during this time of economic uncertainty, companies should not have to worry about expending additional resources on lawsuits based on one court's interpretation of current law."

In the meantime, Herman keeps innovating. On May 4 he received a new patent, D614,946 S, for an improvement to his suspender clips.

Dinner and a movie

Actor and comedian Albin Sadar creates gag gifts like The Men's Underwear Repair Kit and Mistletoe on the Go: Stick it and Smooch ("portable mistletoe that attaches to the forehead with a suction cup, allowing you to 'accidentally' find yourself under the mistletoe with . . . anyone who strikes your fancy.") But he also has a serious side.

One Wednesday a month, he and a group of volunteers with Hope For New York host a Pizza and Movie Night at St. Paul's House, a mission to the homeless in the Manhattan West Side neighborhood officially dubbed "Clinton" but traditionally known as Hell's Kitchen. When the doors open, men and women file into the basement room, park their carts, stuff their backpacks under chairs, and pick up a bowl of popcorn and a cup of soda. Sadar, who has been doing movie night for 16 years, greets most of the men and women by name. Later, he and three to five other volunteers pass out pizza.

Sadar selects movies that he thinks the men and women will enjoy and that will lead to good discussions about meaning, purpose, and hope. Ultimately he wants to talk to them about Jesus. On the night I visited, Sadar showed The Astronaut Farmer, which stars Billy Bob Thornton as an amateur rocket builder who pursues his dream to be an astronaut despite the ridicule of neighbors and the opposition of NASA.

The homeless audience consumed 22 pizza pies (eight sausage, eight pepperoni, two mushroom, four plain) and 15 two-liter bottles of Coke, and at the end of the movie applauded-a rare response, Sadar says. Ratatouille was another movie that received an ovation.

Becoming branded

Does belief in God inoculate a person from being overly brand-conscious? That's the conclusion reached by Ron Shachar, a business professor in Israel. He and scientists from Duke University and NYU researched the connection between a person's religiosity and brand reliance. They found that non-religious folks tend to use stuff to express who they are to the outside world. The researchers found "more secular populations are more prone to define their self-worth through loyalty to corporate brands instead of religious denominations."

Susan Olasky
Susan Olasky

Susan pens book reviews and other articles for WORLD as a senior writer and has authored eight historical novels for children. Susan and her husband Marvin live in Asheville, N.C. Follow Susan on Twitter @susanolasky.

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