The court granted plaintiff's motion to dismiss defendant's patent misuse claim because defendant's pleading failed to satisfy Rule 9(b). "While the Federal Circuit does not appear to have determined what pleading standard applies, the Court agrees with several courts’ holdings that to the extent a patent misuse claim rests on allegations of inequitable conduct, that claim must be pleaded with particularity under Rule 9(b). . . . To the extent that the [Matsushita Elec. Indus. Co. v. CMC Magnetics Corp., No. C 06-04538 WHA (N.D. Cal. Nov. 13, 2006)] decision might be read to imply that claims of patent misuse based on inequitable conduct need not be pleaded with particularity, the Court disagrees with that implication and instead follows [Appelera Corp. v. Mich. Diagnostics, LLC, 594 F. Supp. 2d 150, 163–64 (D. Mass. 2009); United Fixtures Co. v. Base Mfg., No. 6:08-cv-506-Orl-28GJK, 2008 WL 4550212, at 2–5 (M.D. Fla. Oct. 8, 2008); Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., No. C-95- 3577 DLJ, 1996 WL 467293, at 13 (N.D. Cal. July 24, 1996)]."
VDF FutureCeuticals, Inc. v. Sandwich Isles Trading Co. Inc., et. al., 1-11-cv-00288 (HID December 26, 2011, Order) (Kay, M.J.)