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

more+
less-

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.

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.

© Jackson Walker | Attorney Advertising

Written by:

more+
less-

Jackson Walker 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...
×
×