• In re BP Lubricants: False Patent Marking Claims Must Be Pled with Particularity, and Conclusory Allegations of False Marking are Insufficient
  • March 18, 2011 | Authors: John C. Evans; Susan M. Gerber; David M. Maiorana
  • Law Firm: Jones Day - Cleveland Office
  • On March 15, 2011, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") issued its long-awaited decision regarding a request for mandamus relief brought by BP Lubricants USA, Inc. ("BP"). In that case, BP was sued for alleged false marking violations under 35 U.S.C. § 292 ("Section 292"). The plaintiff/relator, Thomas A. Simonian, alleged that BP had falsely marked containers of its CASTROL motor oil with the number of a design patent that expired in 2005. BP moved to dismiss the complaint on the grounds that false marking is a species of fraud subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), and that Simonian's conclusory allegations—that BP is a "sophisticated company" that "knew or should have known" that the patent had expired—failed to meet that standard. The district court denied BP's motion to dismiss.