Tuesday, July 20, 2010

False Marking Intent to Deceive Cannot be Inferred From Knowledge of the Limited Duration of Patents and Expiration of Marked Patents

Defendant's motion to dismiss plaintiff's false marking claim for failure to plead with particularity was granted in part. "[S]pecific facts showing Defendant’s knowledge of falsity or intent to deceive are critically absent from the pleadings. . . . Although Plaintiff has alleged that Defendant knew or reasonably should have known that the products were marked with expired patents, Plaintiff attempts to support those allegations by averring merely that: (1) Defendant knows that patents have limited duration; (2) the patents at issue expired; and (3) Defendant continued to mark its products with those patents after expiration. Those allegations do not sufficiently articulate knowledge of falsity or intent to deceive because Defendant’s knowledge of the limited duration of patents and the actual expiration of the patents do not create an inference that Defendant knew that the patents at issue actually expired."

Hollander v. Etymotic Research, Inc., 2-10-cv-00526 (PAED July 14, 2010, Memorandum) (Tucker, J.)

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