Plaintiff's §292 claims are dismissed
Jennifer Brinkmeier v. Bic Corporation et al., Civ. Nos.09-860-SLR and 10-01-SLR, August 25, 2010.
Robinson, J. Defendants’ motions to dismiss the complaint are granted.
Plaintiff seeks a declaratory judgment that defendants BIC and Bayer falsely marked their respective products with expired patent numbers in violation of § 292. Defendants moved to dismiss for failure to state a claim upon which relief may be granted and under Rule 9(b). Defendant BIC is a leading manufacturer and seller of lighting products including pocket lighters while Bayer is one of the largest marketers of over-the-counter medications and nutritional supplements in the world. Courts are split as to whether the heightened pleading requirements of Rule 9(b) apply to §292 claims. Following the Eastern District of Pennsylvania, and other districts, the Court applies the standard of Rule 9(b) and holds that the allegations that BIC "intentionally included expired patents in the patent markings" with the "intent to deceive the public" do not meet the heightened pleading standard. Plaintiff has provided no indication there was litigation on any of these patents that would imply a working knowledge of the patents, conscious knowledge of the scope and expiration date. Similarly, plaintiff pleads no facts to support her contentions that Bayer included the expired patent numbers on any products with the intent to deceive the public. Therefore, the actions are dismissed.
