Oral Argument in Brinkmeier v Graco
By: Jim Lennon
Oral argument was held today in the matter of Brinkmeier v Graco, a case that holds significant weight for its original dismissal of false marking claims for insufficient pleading under Rule 12(b)(6). That dismissal decision has been relied upon by several district courts and the Department of Justice, in a recent amicus brief, as a guide post for measuring the sufficiency of false patent marking allegations.
The original dismissal tossed the majority of Brinkmeier's false marking claims but allowed one claim based on the fact that the patent at issue had been the subject of prior litigation by Graco. The additional allegations of Brinkmeier's Second Amended Complaint were at issue today. During argument the Court questioned whether the false marking statute allows for claims based on allegations of what a defendant "should have known" about the scope and expiration of its patents, rather than what is actually known.
The parties appeared to concede that the heightened pleadings standard of Rule 9(b) does apply to false marking allegations. The parties differed over whether Brinkmeier's allegations were sufficient to allow for the reasonable inference of not only knowledge of falsity, but Graco's intent to deceive.
Among other things, Graco pointed to the fact that its markings included conditional language (e.g., "may be covered by one or more of the following patents ...") which, Graco says, negates not only intent but the allegation that the marking was even "false". Graco pointed out that Brinkmeier never asserted that the conditional statement itself was inaccurate. Instead Brinkmeier focused on case law suggesting that conditional language does not excuse a marking that otherwise lists inapplicable or expired patents.
The Court suggested it might be beneficial to withhold ruling on the sufficiency of the Second Amended Complaint until the Federal Circuit resolves a similar issue in the mandamus petition of In Re BP Lubricants.
The case argued today is Brinkmeier v. Graco Children's Products Inc., Civil Action No. 1:09-cv-00262-LPS.
The original dismissal tossed the majority of Brinkmeier's false marking claims but allowed one claim based on the fact that the patent at issue had been the subject of prior litigation by Graco. The additional allegations of Brinkmeier's Second Amended Complaint were at issue today. During argument the Court questioned whether the false marking statute allows for claims based on allegations of what a defendant "should have known" about the scope and expiration of its patents, rather than what is actually known.
The parties appeared to concede that the heightened pleadings standard of Rule 9(b) does apply to false marking allegations. The parties differed over whether Brinkmeier's allegations were sufficient to allow for the reasonable inference of not only knowledge of falsity, but Graco's intent to deceive.
Among other things, Graco pointed to the fact that its markings included conditional language (e.g., "may be covered by one or more of the following patents ...") which, Graco says, negates not only intent but the allegation that the marking was even "false". Graco pointed out that Brinkmeier never asserted that the conditional statement itself was inaccurate. Instead Brinkmeier focused on case law suggesting that conditional language does not excuse a marking that otherwise lists inapplicable or expired patents.
The Court suggested it might be beneficial to withhold ruling on the sufficiency of the Second Amended Complaint until the Federal Circuit resolves a similar issue in the mandamus petition of In Re BP Lubricants.
The case argued today is Brinkmeier v. Graco Children's Products Inc., Civil Action No. 1:09-cv-00262-LPS.
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