Monday, August 30, 2010

Failure to Plead Facts Supporting Intent to Deceive Sinks More False Marking Cases

Defendants' motion to dismiss plaintiff's false marking claims was granted because plaintiff failed to sufficiently plead intent to deceive. "[I]n [another of the court's cases] the allegations were that defendant had continued marking a nationally known product of which this Court could take judicial notice with two expired patents, one of which was alleged to have expired a number of years ago. Defendant was alleged to have decades of experience applying for and prosecuting patents. Thus, I found that plaintiff sufficiently alleged intent. Plaintiff [in this case] makes similar conclusory allegations with regard to intent here but without the specific facts noted above. In this case, I find that the complaint does not sufficiently state facts from which I can infer intent."

Simonian v. Global Instruments, Ltd. et al., 1-10-cv-01293 (ILND August 26, 2010, Order) (Bucklo, J.)

Defendant's motion to dismiss plaintiff's false marking action for failure to state a claim was granted. "To the extent that plaintiff is arguing that [defendant] had knowledge that the patents were expired because the packaging of these products was updated following patent expiration, this argument fails to prove [defendant] had intent to deceive the public. . . . Also, plaintiff has provided no indication there was litigation on any of these patents that would imply a working knowledge of the patents, conscious knowledge of the scope and expiration date."

Brinkmeier v. BIC Corporation et al
., 1-09-cv-00860 (DED August 25, 2010, Memorandum Opinion) (Robinson, J.)

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