Federal Circuit Requires Patent False Marking Be Pled With Particularity: In Re BP Lubricants

The Federal Circuit today issued its long awaited decision in In Re BP Lubricants, Misc. Docket No. 960 (Fed. Cir. Mar. 15, 2011)(2011 WL 873147). As expected, the court agreed with mandamus petitioner BP Lubricants and amicus curiae, the United States Department of Justice, that a heightened pleading standard under Rule 9(b) applies to False Marking claims under 35 U.S.C. §292. In an introductory summary the court explained 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, Misc. Docket No. 960, at 2.

The decision should have a major impact on a significant number of false marking suits. For example, the Eastern District of Texas had refused to apply Rule 9(b) when considering motions to dismiss the hundreds of false marking cases now pending in that venue.

Stay tune for more as 2011 shapes up to be the year of the demise of the patent marking troll.

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