and Patents Sufficiently Pleads Intent to Deceive
The court denied defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim, because allegations that defendant previously conducted due diligence activities with respect to the patents gave rise to an inference of intent to deceive. "Plaintiff has alleged a chain of assignments concerning the now-expired patents . . . before being ultimately assigned to [defendant]. This chain of assignments supports Plaintiffs assertion, based upon information and belief, that [defendant] performed due diligence on the patents it was acquiring, which would have given it a working knowledge of the expiration dates and scopes of the patents. Plaintiff further alleges that [defendant] has been accused of infringing patents . . . pertaining to [the falsely marked products]. This allegation also supports Plaintiffs assertion, based upon information and belief, that Plaintiff studied the features of its [products] in response to the litigation and knew or should have known that its products were not covered by [one of the patents-in-suit]. . . . Plaintiff asserts that [defendant] used two of the three . . . patents identified in the pleadings as collateral to secure a loan . . . . [T]he fact that [defendant] used these patents for loan collateral supports Plaintiffs assertion, made upon information and belief, that [defendant] knew or should have known the expiration dates of the relevant patents."
Brinkmeier v. Graco Children's Products Inc., 1-09-cv-00262 (DED March 7, 2011, Order) (Stark, M.J.).