Texas Split on Applicability of Rule 9(b) to False Marking Pleadings

Yesterday's Opinion and Order from the Northern District of Texas (Patent Compliance Group v Wright Medical) applies the heightened pleading requirement of Rule 9(b) to false marking claims, in stark contrast to the current position of the Eastern District of Texas, refusing to apply Rule 9(b) to false marking claims. NDTX was somewhat persuaded by the explicit remand language of the Federal Circuit in the Stauffer case and the several district courts that have lined up in favor of the higher pleading standard.

In other interesting false marking news out of Texas, Judges Ward and Everingham of the Eastern District recently granted (orally) two transfer requests by false marking defendants under 1404, leading several other defendants to file transfer motions. While it may be difficult to win dismissal of a false marking claim in EDTX currently, many of these recently filed actions may be ripe for transfer. Michael Smith of Siebman Reynolds put it this way in his blog (http://mcsmith.blogs.com/eastern_district_of_texas/2010/11/false-marking-cases-in-marshall-routine-cases-and-wrinkles.html): “as for now, plaintiffs are 0-2 on venue rulings, with two pending, one being briefed, and four more being drafted as a result of the courts' granting of the two.”

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