Wednesday, December 22, 2010

Scrivener's Error in Patent Marking Does Not Preclude Finding of Intent to Deceive

Defendant's motion for Rule 11 sanctions for plaintiffs' filing of a qui tam false marking action was denied despite defendant's arguments that plaintiffs' counsel knew the mismarking was a scrivener's error that could not be corrected due to a lack funds. "[A]lthough Defendant has asserted potentially plausible arguments that he lacked the requisite intent for liability under § 292, these assertions go to the merits of the false marking claim, which the Court is in no position to prejudge as of this early stage of the case. Those arguments do not, by themselves, substantiate a claim that Plaintiffs’ attorneys abused the litigation process by contending that Defendant did in fact possess the requisite intent."

Lundeen, et. al. v. John T. Minemyer, 1-09-cv-03820 (ILND December 17, 2010, Order) (Dow, J.)

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