Continued Marking After Service of False Marking Complaint Creates "Rebuttable Presumption of Intent to Deceive"

The court vacated its earlier dismissal of plaintiff's qui tam false marking claim because plaintiff's proposed amended complaint alleged "that [defendant] continued to mark the [accused] product insert with the [patent-in-suit] after being served with the first amended complaint. This allegation, when taken as true, establishes that [defendant] knew the [patent] was expired when it marked the product insert. A false statement, combined with knowledge that the statement is false, 'creates a rebuttable presumption of intent to deceive the public . . . .' The Court finds that Plaintiff has now adequately pleaded intent to deceive."

Baker v. Bausch & Lomb, Inc., 2-10-cv-02273 (TNWD January 20, 2011, Order) (McCalla, J.)