The court denied defendant's motion for judgment on the pleadings as to plaintiff's false marking claim where defendant's product was marked with a Chinese patent application number that resulted in a differently numbered Chinese patent. In doing so, the court rejected defendant's argument that the false marking claim did not comply with the pleading requirements of FRCP 8(a). "[Plaintiff] specifically alleges that [defendant] has marked its deshedding tool with 'Patent No. 200620072629.8,' that this is not an existing US patent number, and that the tool is not covered by any patents owned by [defendant]. . . . Applying the proper standards, it is at least facially plausible that [defendant] could be liable for false marking when it marks its product as patented but the company does not own a patent that covers the product. Therefore, I find that [plaintiff] has met the pleading standards of Rule 8(a)." The court also rejected defendant's argument that the complaint failed to plead intent to deceive under the heightened pleading standard of FRCP 9(b). "This case is distinguishable from [a case] where the allegation was simply that a sophisticated business should have known when a patent expired. . . . [Plaintiff] alleges that [defendant] marked its deshedding tool with 'Patent No. 200620072629.8' when that product is not -- and has never been -- covered by any patents owned by [defendant]. Under these facts, [plaintiff] has sufficiently pled the elements of its false marking claim under Rule 9(b), and [defendant's] motion for judgment on the pleadings will be denied."
FURminator, Inc. v. Sergeant's Pet Care Products, Inc., et. al., 4-10-cv-01829 (MOED May 5, 2011, Order) (Sippel, J.)