Federal Circuit Applies Heightened Pleading Requirements To False Patent Marking Claims
By Robert M. Masters, David M. Conca & Jeffrey D. Comeau
Today, the Federal Circuit issued its decision in In re BP Lubricants USA Inc., Misc. Dkt. No. 960 (Fed. Cir. 2011), holding that the heightened pleading requirements for fraud and mistake apply to false patent marking claims. In particular, the court found that Rule 9(b)s particularity requirement applies to false marking claims 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. BP Lubricants, slip op. at 2.