Do false marking complaints need to satisfy heightened pleading requirements? Court won't answer that question if the complaint falls short of Rule 8

Another false marking post this week. This one comes from the Ft. Myers division. Herengracht sued American Tombow for false marking. The Court ignored the various "shotgun" allegations in the complaint. Tombow asked for dismissal for failure to state a claim, arguing that the plaintiff must plead the heightened requirements of Rule 9(b) because the claim is based on fraud.

First, the Court laid out the elements necessary to survive a motion to dismiss:

(1) that a word or number indicating an article is patented (2) was marked upon, affixed to, or used in advertising in connection with (3) an article which was in fact not covered by the patent, (4) for the purpose of (the intent of) deceiving the public.

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An article whose patent is expired is "unpatented."

Digesting the complaint, the Court found that plaintiff had pleaded that a Tombow product has been marked with U.S. Patent No. 4,851,076. The '075 Patent is currently expired. And Tombow is a sophisticated company. The Court didn't need to delve into whether or not heightened fraud pleading was required here, because these allegations didn't even satisfy Rule 8's notice pleading:

Because the instant Complaint does not even comply with the ordinary pleading rules of Rule 8, there is simply no need to address [the issue of whether heightened pleading requirements should apply.]

The complaint did not allege that Tombow marked its products with an expired patent number after the patent had expired.

Motion to dismiss granted, without prejudice. Plaintiff was given the ability to file an amended complaint. But Plaintiff did not, so the court closed this matter.

Herengracht Group LLC v. American Tombow, Inc., Case No. 2:10-cv-362 (M.D. Fla. Dec. 30, 2010) (J. Steele)