Tuesday, June 1, 2010

False Marking Plaintiff borrows a page from Simonian in filing its own Amended Complaint

At least one false marking plaintiff is following the lead of the most prolific false marking plaintiff, Thomas Simonian, by borrowing, word for word, the additional paragraph Mr. Simonian began including in amended false marking complaints on April 27, 2010. As previously reported in Simonian Reloads with Amended False Marking Complaints, But Will They Pass Muster?, Mr. Simonian’s new allegations appear to focus the injury analysis away from potential competitors and toward consumers. The new allegations read:
The expiration date of a U.S. Patent is not readily ascertainable by members of the public at the time of the product purchase. The patent number itself does not provide members of the public with the expiration date of the patent. Basic information about a patent, such as the filing, issue and priority dates associated with a particular U.S. patent number are available at, for example, the website of the United States Patent and Trademark Office (“USPTO”). However, access to the Internet is necessary to retrieve that information (meaning that a consumer may not have the ability to retrieve the information, especially while he is in a store making a purchasing decision) and even after retrieving that information, it does not include the expiration date of a patent. Rather, a member of the public must also conduct a burdensome legal analysis, requiring specific knowledge of U.S. Patent laws regarding patent term expiration. Notably, a correct calculation of the expiration date must also account for at least: a) any term extensions granted by the USPTO, which may or may not be present on the face of the patent, and b) whether or not the patent owner has paid the necessary maintenance fees.

Simonian v. Novartis Animal Health US, Inc.,

1-10-cv-01267 (ILND)
Amended Complaint filed April 27, 2010.

The plaintiff following Mr. Simonian’s lead is Patent Group, LLC, the second most prolific plaintiff in false marking cases - a distant second to Simonian. Read the amended complaint here.

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