Federal Circuit Raises the Bar on False Marking Claims

On March 15, 2011, the U.S. Court of Appeals for the Federal Circuit ruled that Rule 9(b)’s heightened pleading requirements apply to false patent marking claims under 35 U.S.C. § 292, and that a complaint for false marking must include specific underlying facts, as opposed to mere conclusory allegations. The effect of the Federal Circuit’s ruling is that a substantial number of false marking complaints filed over the past few years may be subject to a motion to dismiss for failing to comply with Rule 9(b)’s heightened pleading requirements.

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