Patent Law

Federal Circuit Order Leads to Dismissals in at Least 18 Suits over Expired Patent Marks


A March order by the U.S. Court of Appeals for the Federal Circuit has led to dismissals of at least 18 lawsuits seeking damages for products carrying patent marks even though their patents have expired.

At least one lawyer has seen opportunity in qui tam provisions that allow individual lawsuits over the false marks. The lawyer, who had sought trillions in damages for false marks on Solo Cups, lost because of a Federal Circuit ruling requiring proof of intent to deceive the public. Now the latest order by the Federal Circuit is leading to dismissal of more suits at the pleading stage.

The Federal Circuit order granted a writ of mandamus to BP Lubricants USA and deemed insufficient the plaintiff’s conclusory allegations that BP knew or should have known its Castrol patent was expired, Law 360 reported at the time. The Federal Circuit ordered dismissal of the complaint against BP, but allowed the plaintiff to refile.

The higher pleading standard has “thinned out” at least 18 cases, the National Law Journal reports. As a result of the ruling, plaintiffs will have to allege a deceptive intent in false markings cases, according to Rod Thompson of Farella Braun & Martel, who represented a company obtaining a dismissal in one of the 18 cases.

Thompson also noted legislation that would amend the qui tam patent law to allow only the federal government to sue in false marking cases, the NLJ says.

Prior coverage:

ABAJournal.com: “IP Lawyer Who Spotted Expired Patent on Solo Cup Lid Loses Quest for Trillions in Damages”

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