March 2011

Looking Ahead

On March 15, 2011, in In re BP Lubricants USA Inc., No. 10-M960 (Fed. Cir. Mar. 15, 2010), the Federal Circuit granted, in part, BP Lubricants USA Inc.’s petition for a writ of mandamus directing the U.S. District Court for the Northern District of Illinois to grant a motion to dismiss a complaint pursuant to the False Marking Statute, 35 U.S.C. § 292.  In so doing, the Court held that Fed. R. Civ. P. 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.”  Slip op. at 2.  Read the full summary in next month’s edition of Last Month at the Federal Circuit.