I previously did a guest post at Huliq.com on the false marking lawsuit Pequignot v. Solo Cup Co. that was pending in the Eastern District of Virginia. The plaintiff alleged that Solo Cup falsely marked its products with expired patent numbers.
The court had denied several motions to dismiss filed by Solo Cup based on the fact that Solo Cup marked that the products “may be covered” by patents and that the plaintiff did not have standing to sue for false marking. The court noted that the statute permits any person to sue on behalf of the government.
As I noted in the Huliq.com article, the higher burden that the plaintiff faced was to prove that Solo Cup marked its products falsely with “an intent to deceive.” Judge Leonie Brinkema has now dismissed the case because Pequignot has not provided any evidence of the intent to deceive.
Patently-O is reporting that during oral argument the judge indicated that the ruling would “get [the] case teed up for the Federal Circuit” on appeal. Because there is little caselaw in this area, she does not know the standard that should be used to judge the intent to deceive and hopes the Federal Circuit will provide guidance.