False Marking Fastidiousness: Federal Circuit Determines That False Marking Allegations Must Be Particularly Pleaded


The Federal Circuit finally resolved a hotly contested issue that has plagued false marking litigation under 35 U.S.C. s. 292 since the landmark decision in Piquenot v. Solo Cup Company. The issue: Areso-called qui tam plaintiffs, bringing false marking claims on behalf of the federal government, required to plead those claims with particularity under the Federal Rules of Civil Procedure? In In re BPLubricants USA, Inc., Misc. Docket No. 960 (Fed. Cir. March 15,2011), the Federal Circuit determined that Rule 9(b)’s heightened pleading standard does apply to false marking claims.

Rule 9(b) of the Federal Rules of Civil Procedure requires that plaintiffs who assert claims for "fraud" plead those claims with particularity in the complaint. However, like many other false marking claims around the country, the complaint in In re BP only alleged that BP Lubricants was a "sophisticated company" that" knew or should have known" that the patent marked on their well-known CASTROL products had expired. Id. at p. 1. The complaint also affirmatively alleged that "BP marked the CASTROL products with the patent numbers for the purpose of deceiving the public." Id. at p. 2. The district court decided that this pleading satisfied Rule 9(b) by alleging the "who, what, when, where, and how" of the alleged false marketing. Id. at 4. The Federal Circuit disagreed.

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