Litigation Alert: Ninth Circuit Adopts Good Faith Defense for Lanham Act Claims Premised on Allegedly False Patent Infringement Allegations Made to Third Parties

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In Fisher Tool Co., Inc. v. Gillet Outillage, __ F.3d __, 2008 U.S. App. LEXIS 13727 (June 30, 2008), the Ninth Circuit adopted the Federal Circuit?s standard requiring a showing of bad faith in order to maintain Lanham Act and state law claims premised on allegedly false representations of patent infringement made by a patentee, its distributors, agents and/ or attorneys to third parties. In so doing, it affirmed summary judgment for Gillet due to Fisher Tool?s lack of evidence that Gillet, and those working in concert with it, made the representations in bad faith. Summary judgment on Fisher Tool?s malicious prosecution claims was similarly affirmed in the absence of evidence that the underlying patent infringement suit was filed in bad faith.

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