In denying defendant's motion to dismiss plaintiff's qui tam false marking action, the court rejected both parties reliance on Pequignot as applicable to the pleading standard for false marking claims. "[B]oth [plaintiff] and [defendant] have cited to portions of Pequignot v. Solo Cup Co., 608 F.3d 1356 (Fed. Cir. 2010), in which the Federal Circuit recently addressed Section 262(a) claims and addressed issues relating to the knowledge of the falsity of marks and a rebuttable presumption of intent. However, in Pequignot, the court was reviewing a lower court’s ruling on a motion for summary judgment and the issues addressed by the court related to the merits of the claims, rather than the pleading standard. Thus, Pequignot is not applicable to the instant action at this juncture. [Plaintiff] is not required to prove its case at the pleadings stage, and to require more facts from [plaintiff] concerning intent would impose even a higher pleading standard than is required under Rule 9(b), effectively foreclosing qui tam actions such as this, which Congress has indicated should be available to the public."
Patent Compliance Group Inc. v. Brunswick Corporation, 1-10-cv-04645 (ILND January 14, 2011, Order) (Der-Yeghiayan, J.)