Plaintiffs' motion to dismiss defendant's false marking counterclaims for failure to state a claim was granted. "[Defendant] alleges that [plaintiff] has falsely indicated that [its product] is patented under the [patent-in-suit], when, in fact, [plaintiff] knows that [its product] is not made according to the methods claimed in the [patent-in-suit]. . . . [Defendant's] allegation that [plaintiff] cannot prove that its banner is made in accordance with the methods of the [patent-in-suit] is an insufficient allegation of intent to deceive. Specifically . . . since [plaintiff's] legal position as to the [patent-in-suit] was sufficiently plausible, [plaintiff] could not have acted with the deceptive purpose necessary to trigger liability under the false marking statute."
Max Impact, LLC v. Sherwood Group, Inc., 1-09-cv-00902 (NYSD February 14, 2011, Order) (McKenna, J.)