The magistrate judge recommended denying defendant's motion to dismiss a false marking claim for failure to sufficiently plead an intent to deceive the public. "It is unclear whether Rule 9(b)’s heightened pleading standard applies to false marking claims. . . . [T]he undersigned is persuaded by Judge Love’s analysis in [Astec America, Inc. v. Power-One, Inc., 2008 WL 1734833, at *12 (E.D. Tex. Apr. 11, 2008)]. . . . [I]n this case, [plaintiff] alleges that [defendant] was the party who marked the [accused] products, [defendant] knew its patent was expired, and [defendant] acted with intent to deceive the public. As such, the undersigned does not recommend dismissing [plaintiff's] complaint on the basis that it fails to properly plead intent."
Promote Innovation LLC v. Ranbaxy Laboratories Inc., 2-10-cv-00121 (TXED July 14, 2010, Report & Recommendations) (Everingham, M.J.)