The Assault On False Patent Marking Continues: Federal Circuit Grants Bp Lubricants' Petition For A Writ Of Mandamus Holding That Fed. R. Civ. P. Rule 9(B)'S Particularity Requirement Applies To ...


On March 15, 2011, the Federal Circuit issued its long-awaited opinion in BP Lubricants' Petition for Writ of Mandamus. That Petition asked the Federal Circuit to order the Northern District of Illinois to grant BP Lubricants' motion to dismiss Thomas Simonian's false patent marking complaint for failing to sufficiently plead the intent to deceive element of the statute under the heightened pleading standard. BP Lubricants pointed out the complaint asserted only conclusory allegations in this regard, such as the defendant is a "sophisticated company" and "knew or should have known" the patent expired.

The Federal Circuit granted the petition directing the district court to dismiss the complaint with leave to amend, reasoning that Fed. R. Civ. P. 9(b)'s particularity requirement is applicable to false marking claims and that a complaint alleging conclusory allegations, but lacking particularized factual bases of a defendant's alleged intent to deceive the public does not satisfy the Rule.

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