District Court Allows False Marking to be Re-pleaded as Consumer Protection Claim

more+
less-

The Leahy-Smith America Invents Act bars suits for false marking of patent rights except those brought by the federal government or in which a competitor can establish competitive injury. Now a district court in Virginia has allowed a claim arising from a false patent marking to be re-pleaded as consumer protection claims under California and Washington state law. The court in Sukumar v. Nautilus, Inc. denied defendant's motion to dismiss the state law claims on preemption grounds, holding that federal patent law, as amended by the America Invents Act, did not preempt the plaintiff's consumer protection claims. Other competitors may resort to this route as claims under the patent laws are cut off.

Plaintiffs Ponani Sukumar and Southern California Stroke Rehabilitation Associates, Inc. originally filed a complaint against defendant Nautilus Inc. accusing it of falsely marking a number of products (representing unpatented items as covered by a patent, with the intent to deceive the public) in violation of 35 U.S.C. § 292. After President Barack Obama signed into law the America Invents Act, which, among other things, amended Section 292, plaintiffs amended their complaint, modifying their false marking claim to allege explicitly that they suffered a competitive injury as a result of Nautilus's alleged false marking, and that defendants acted in bad faith. Plaintiffs also added three additional state law claims: false advertising in violation of California law, unfair competition in violation of California law, and unfair competition in violation of Washington law. Nautilus responded with a Partial Motion to Dismiss, arguing that federal patent law preempted the state law claims.

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Loeb & Loeb LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.
×
Loading...
×