The court granted defendant's motion to dismiss plaintiff's false marking claim based on defendant's incorrect statement that patented software was "functioning" on a website. "Though [plaintiff] does not allege that [defendant] marked the Website itself as being patented, it nonetheless asserts that [defendant] indirectly marked the site by claiming that Dynamic Firewall was patented. [Plaintiff] avers that the marking of Dynamic Firewall can be imputed to the Website generally on the ground that [defendant] represented that Dynamic Firewall was 'functioning' on the site when it could not have been. . . because [defendant] had lost the only embodiment of Dynamic Firewall as a result of a hard drive crash which occurred in 1999. . . . The false marking statute is intended to protect the public from being misled into believing that an article is patented when, in fact, it is not. That is not what is alleged here. Rather . . . the alleged deceit is that [defendant] wrongly implied that Dynamic Firewall was a functioning component of his Website when that could not have been the case. . . ."
Juniper Networks, Inc. v. Shipley, 4-09-cv-00696 (CAND March 17, 2010, Order) (Armstrong, J.)