Simonian v. Allergan, Inc., No. 10 C 2414, Slip Op. (N.D. Ill. Nov. 30, 2010) (St. Eve, J.).

Judge St. Eve denied defendant Allergan’s motion to dismiss plaintiff Simonian’s false patent marking claim regarding Allergan’s RESTASIS product. The Court, citing its Blistex decision, held that false patent marking claims were subject to Fed. R. Civ. P. 9(b) heightened pleading requirements. Simonian’s general averment that Allergan marked with an allegedly expired patent with an intent to deceive was sufficient, without more facts.

The Court also held that the fact that RESTASIS was marked with an unexpired patent, did not insulate Allergan from marking with an expired patent as well, citing Clontech Labs., Inc. v. Invitrogen Corp., 406 F.3d 1347 (Fed. Cir. 2005). In Clontech, the Federal Circuit explained that "an unpatented article" was one "not covered by at least one claim of each patent with which the article is marked." Id. at 1352 (emphasis added).