As reported previously, this new breed of patent trolls aka false marking trolls, continue to file lawsuits against patent holders who mark their products with patent numbers. Particularly popular are lawsuits alleging false marking of expired patents.

For those that were hoping that the Federal Circuit would affirm a lower court decision in Stauffer and give patent holders an easy dismissal option, those hopes have been dashed. At the lower court, it was ruled that in order to have standing to sue for false marking, a plaintiff must suffer (or at least plead) injury. On appeal the Federal Circuit Court in Stauffer v. Brooks Brothers, Inc. (pdf) (Aug. 31, 2010), took a literal interpretation of the law, finding that a statute that reads "Any person may sue for the penalty" literally means just that: any person. The Court held that the false marking statute 35 U.S.C. 292 could be brought by essentially anyone -- a plaintiff need not be a competitor to the patent holder and need have no connection to nor have suffered any injury due to the act of false marking.

In the weeks since the Stauffer ruling, there has been a small flurry of additional false marking suits. Currently, a patent holder's best friend is filing for dismissal of the action due to lack of proper pleading of actual intent to mislead. In a combined order as between two case, the District Court in Delaware dismissed cases against lighter manufacturer BIC Corporation and drugmaker Bayer Healthcare LLC finding that the plaintiff failed to meet the requisite heightened pleading standard in its only conclusory allegations that BIC and Bayer intentionally included expired patents in their patent markings with intent to deceive the public, finding that "boilerplate and conclusory allegations will not suffice." (Brinkmeier v. BIC Corp. Civ. No. 09-860-SLR; Brinkmeier v. Bayer, Civ. No. 10-01-SLR, D. Del. (pdf)) (Sept. 2010). However, plaintiff Brinkmeier has filed for reconsideration of the dismissal in those cases, so there will be more to come.