Although a few False Marking cases have recently been dismissed for failure to plead facts supporting intent to deceive, some plaintiffs have undoubtedly noticed a small window of hope in those same orders. Judge Robinson stated in Brinkmeier v. BIC Corporation et al., 1-09-cv-00860 (DED August 25, 2010, Memorandum Opinion) that the “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." This leaves a false marking plaintiff to wonder if there IS some indication of prior litigation, is that enough to sufficiently state facts from which one can infer intent?
A handful of the currently pending False Marking cases involve allegations of prior litigation. At least eleven false marking complaints state that one or more patents at issue have been found invalid or unenforceable. While four of those have either settled or been voluntarily dismissed, seven remain. The plaintiffs that might benefit are Promote Innovation, LLC, Atico International USA, Inc., and oddly enough, Brinkmeier (Brinkmeier v. Exergen Corporation).