District Court Grants Motion to Dismiss in False Marking Case

Simonian v. Cisco Systems, Inc. (N.D. Ill. Jun. 17, 2010)

In this case, Judge Der-Yeghiayan in the Northern District of Illinois granted a motion to dismiss a false marking complaint for failure to adequately plead intent to deceive.  The Court first considered whether false marking claims are subject to Rule 8(a) or the heightened Rule 9(b) pleading requirements and concluded that "the Rule 9(b) pleading standard applies" to false marking claims.

Next the court considered whether the plaintiff had adequately pled the intent to deceive element of a false marking claim under Rule 9(b).  The plaintiff had alleged that "upon information and belief" the defendant is "a sophisticated company and has many decades of experiences applying for, obtaining, and/or litigating patents."  The court found that plaintiff had not alleged any specific facts upon which he bases this particular allegation and "all of [plaintiff's] other allegations related to [defendant's] knowledge and 'intent to deceive' not only flow from there, but are also based upon information and belief."  The court concluded that plaintiff "has failed to plead specific facts showing [defendant's] knowledge of the mismarking or its intent to deceive … [plaintiff's] complaint does not meet the heightened pleading requirements of Rule 9(b), and therefore we grant [defendant's] motion to dismiss the complaint."

Gray on Claims, in conjunction with Docket Navigator®, is providing a false marking chart that is updated daily with new false marking cases as well as status updates on pending cases.  A downloadable PDF chart is available on this page as well including information on the specific patents and products at issue in each litigation.  Other writings on false marking can be found here.