The court vacated its earlier dismissal of plaintiff's qui tam false marking claim because plaintiff's proposed amended complaint alleged "that [defendant] continued to mark the [accused] product insert with the [patent-in-suit] after being served with the first amended complaint. This allegation, when taken as true, establishes that [defendant] knew the [patent] was expired when it marked the product insert. A false statement, combined with knowledge that the statement is false, 'creates a rebuttable presumption of intent to deceive the public . . . .' The Court finds that Plaintiff has now adequately pleaded intent to deceive."
Baker v. Bausch & Lomb, Inc., 2-10-cv-02273 (TNWD January 20, 2011, Order) (McCalla, J.)