Monday, September 27, 2010

General Allegations of Deceptive Intent Fail to State a Claim for False Marking

The court granted defendant's motion to dismiss plaintiff's qui tam false marking action for failing to meet the heightened pleading standard of Rule 9(b) with respect to intent to deceive. Allegations that defendant "did not have, and could not have had, a reasonable belief that its [products-at issue] were properly marked," "is a patent-sophisticated company," "knew, or should have known, that many of the patents marked on its [products] do not cover the products on which they are marked," and "marked [its products]. . . with knowledge that the claims of this patent do not cover one or more of the products on which this patent is marked" were insufficient.

Josephs v. Federal-Mogul Corp., 2-10-cv-10617 (MIED September 23, 2010, Opinion & Order) (Cox. J.)

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