Federal Circuit Applies Heightened Pleading Standard Of Fed. R. Civ. P. 9(b) To False Marking Claims

more+
less-

On March 15, 2011, the Court of Appeals for the Federal Circuit issued a ruling in In re BP Lubricants, No. M960 (Fed. Cir. Mar. 15, 2011), holding that the heightened pleading standard of Fed. R. Civ. P. 9(b) applies to false marking claims. The opinion, authored by Judge Linn, forces false marking qui tam plaintiffs to plead their 35 U.S.C. § 292 claims with particularity and increases the likelihood for defendants of prevailing on motions to dismiss premised on the sufficiency of the pleadings.

The Court began its analysis with the recognition that Rule 9(b) “acts as a safety valve to assure that only viable claims alleging fraud or mistake are allowed to proceed to discovery.” The Court concluded that Rule 9(b)’s “gatekeeping function” is necessary in false marking actions to “prevent[] relators using discovery as a fishing expedition” with claims “that do little more than speculate that the defendant engages in more than negligent action.” The Court then confirmed that applying Rule 9(b) means that allegations of false marking, just like allegations of inequitable conduct, must comply with the requirements set forth Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009): the complaint must state the “who, what, when, where and how” of the alleged fraud, including “sufficient underlying facts from which a court may reasonably infer that a party acted with the requisite state of mind.” Simply reiterating the elements of the claim without more is not enough.

Please see full alert below for more information.

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


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.

© Ropes & Gray LLP | Attorney Advertising

Written by:

more+
less-

Ropes & Gray LLP on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*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. Or, sign up using your email address.
×
Loading...
×
×