Federal Circuit Deals Significant Blow to False Patent Marking Complaints

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On March 15, 2011, the Court of Appeals for the Federal Circuit issued its first decision explicitly addressing the pleading standard for false patent marking actions under 35 U.S.C. sec. 292. The Court held that the particularity requirements of Rule 9(b) of the Federal Rules of Civil Procedure apply to false marking actions. It is expected that this decision will slow the wave of false patent marking actions that have been filed since the Court's Forest Group v. Bon Tool decision in December 2009. No longer will plaintiffs be able to allege merely that a company intended to deceive the public because the company is "sophisticated" and "should have known" that a patent number marked on a product refers to an expired patent. Plaintiffs must now plead, with particularity, specific facts that will show that a company "intended" to deceive the public by marking an expired patent number on a product.

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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.

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