Defendant's motion to dismiss plaintiff's false marking action under the first-to-file rule where defendant had been sued six weeks earlier in another forum was denied. "While the Pennsylvania Action also alleges mismarking of the [defendant's product], it alleges that the [product] was mismarked with a different patent. . . . Nowhere in the Pennsylvania Action is it alleged that Defendant mismarked [its product] using the [patent-at-issue in this case]. Because this action is not duplicative of the Pennsylvania action, the first-filed rule does not apply."
Shizzle Pop, LLC v. Wham-O, Inc., 2-10-cv-03491 (CACD August 2, 2010, Minute Order) (Anderson, J.)