Thursday, February 17, 2011

Patentee's "Sufficiently Plausible" Belief as to the Scope of Patents Negates Intent to Deceive Necessary for False Marking Claim

Plaintiffs' motion to dismiss defendant's false marking counterclaims for failure to state a claim was granted. "[Defendant] alleges that [plaintiff] has falsely indicated that [its product] is patented under the [patent-in-suit], when, in fact, [plaintiff] knows that [its product] is not made according to the methods claimed in the [patent-in-suit]. . . . [Defendant's] allegation that [plaintiff] cannot prove that its banner is made in accordance with the methods of the [patent-in-suit] is an insufficient allegation of intent to deceive. Specifically . . . since [plaintiff's] legal position as to the [patent-in-suit] was sufficiently plausible, [plaintiff] could not have acted with the deceptive purpose necessary to trigger liability under the false marking statute."

Max Impact, LLC v. Sherwood Group, Inc., 1-09-cv-00902 (NYSD February 14, 2011, Order) (McKenna, J.)

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