Patent Law Practice Center

Federal Circuit Adopts Heightened Pleading Standard in False Marking Cases

It’s likely that there were many patentees doing  a victory dance yesterday when the Federal Circuit  imposed a stricter pleading requirement in false marking cases.  In the In re BP Lubricants USA decision, the Court held that plaintiff’s must now plead with particularity the specific facts underlying the false marking allegations.  Foley & Lardner Partner and Practice Center Contributor Jeanne Gills sent in this alert which discusses the decision and what effect it may have on both pending and future false marking cases.

On March 15, 2011, the Federal Circuit held that “Rule 9(b)’s particularity requirement applies to false marking claims and that a complaint alleging false marking is insufficient when it only asserts conclusory allegations that a defendant is a ‘sophisticated company’ and ‘knew or should have known’ that the patent expired.” In re BP Lubricants USA Inc., No. 2010-M960, at *1 (Fed. Cir. Mar. 15, 2011). In granting BP Lubricants’ mandamus petition (in part), the Court agreed that this case “warrant[ed] the extraordinary remedy of mandamus” since the Court had not previously decided “whether Rule 9(b) applied” or “discussed the requisite level of pleading required.” Id. at *11. The Court directed the district court to dismiss the relator’s complaint with leave to amend in accordance with 9(b)’s pleading requirements. Id. This decision may lead to the dismissal of similarly pled complaints filed by other qui tam plaintiffs. (more…)