Failure to plead false marking claims results in partial dismissal
Jennifer L. Brinkmeier v. Graco Children’s Products Inc., C.A. No.09-262-JJF, February 16, 2010.
Farnan, J. Defendant's Motion To Dismiss is granted in part and denied in part. Plaintiff’s Motion For Leave To File Amended Complaint is granted.
Defendant is a children’s products company. Plaintiff is a Pennsylvania resident. Plaintiff alleges that Defendant has engaged in false product marking under 35 U.S.C. § 292 by marking certain children's products and its website with expired patents and patents that do not cover the products or website. Defendant contends that Plaintiff has failed to state a claim for false marking because Plaintiff has not pled that the products at issue are unpatented. Defendant also argues that the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure applies because a claim under § 292 is a qui tam action and sounds in fraud.
The Court rejects Defendant's contention that no actionable mismarking can occur if the product at issue is covered by at least one claim of one of the patents listed. Similarly, the Court rejects Defendant's contention that marking a product with expired patents cannot constitute actionable mismarking as long as the product is actually patented. Defendant has not provided this Court with any legitimate reason to stray from Clontech Labs., Inc. v. Invitrogen Corp.'s definition of unpatented article in the present action. Accordingly, the Court concludes that Counts I, II, and II sufficiently plead that Defendant's products are unpatented articles. The parties disagree on whether false marking claims under § 292 are subject to the heightened pleading requirements of Rule 9(b). However, the Court does not resolve this dispute because the Amended Complaint fails to sufficiently plead a required element- intent to deceive- under even the liberal pleading standards of Rule 8(a) except with respect to the '437 patent marking where Plaintiff’s allegations are sufficiently pled.
