Defendant's motion to dismiss plaintiff's false marking claim for failure to plead a fraud-based claim with particularity was denied. "While [Brinkmeier v. Graco Children's Prods., Inc., 684 F. Supp. 2d 548, 553 (D. Del. 2010)] declined to draw an inference of deceptive intent from pleadings that the defendant knowingly marked certain articles with an expired patent number, this ruling departs from [Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005)] and subsequent Federal Circuit case law. . . . At the pleadings stage -- viewing all facts in the light most favorable to the plaintiff -- allegations that a defendant knowingly mismarked an article with an expired patent number (i.e. a false statement with knowledge) allows a court to infer intent to deceive the public. . . . Armed with actual documentation that a product was falsely marked, a court may draw an inference of the defendant's knowledge simply by the finite nature of patents and the ordeal an entity must go through to actively create and maintain a patent. . . . As a sophisticated corporation with patent experience and available legal counsel, Plaintiff creates an inference that Defendant knew the patent expired. Any argument to the contrary ignores the time sensitive nature of patents and the obligations incumbent on patent holders to protect their legal rights."
Patent Compliance Group Inc. v. InterDesign Inc., 3-10-cv-00404 (TXND June 28, 2010, Order) (Solis, J.)