PATENT LITIGATION AND ENFORCEMENT CLIENT ALERT: Federal Circuit Requires False Marking Plaintiffs to Plead Specific Facts Showing Intent to Deceive

    15 March 2011
    The U.S. Court of Appeals for the Federal Circuit today issued a decision imposing stricter pleading requirements in false patent marking cases. The Court took the extraordinary step of issuing a writ of mandamus to dismiss a complaint, ruling that a plaintiff must plead with particularity the circumstances of the defendant’s alleged intent to deceive the public in falsely marking products or materials. It held that the intent to deceive element must be pled with particularity under Fed. R. Civ. P. 9(b) and 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.