Difficulty Determining Expiration of Patent Requires False Marking Complaint to Plead Knowledge of Expiration with Specificity

Defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim was granted. "[T]he Complaint fails to allege that [defendant's products] were marked after the expiration of the patent. . . . The Complaint also fails to allege that [defendant] knew of the expiration of the patent at the time any of [its products] were marked. Knowing generally that patents expire is not sufficient, since 'determining the expiration date of a patent can, at times, be difficult.' Without more specific factual allegations of knowledge, there is no good faith basis for plaintiff to allege an intent to deceive the public."

Herengracht Group LLC v. American Tombow, Inc., 2-10-cv-00362 (FLMD December 30, 2010, Order) (Steele, J.)