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


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.

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