Luka v. The Proctor & Gamble Co., No. 10 C 2511 (N.D. Ill. Mar. 28, 2011) (Kennelly, J.).

Judge Kennelly granted certain defendants’ motions to dismiss plaintiff’s false patent marking case for failure to sufficiently plead intent, and held that the statute was constitutional.  Note that this case was decided before President Obama signed the America Invents Act which removes expired patents from the false marking statute.

Proctor & Gamble

Plaintiff’s general allegations against defendant Procter & Gamble were insufficient, particularly in light of the license agreement requiring defendant Innovative to comply with the marking statute.

Innovative

Plaintiff sufficiently pled intent as to Innovative by attacking the P&G-Innovative license agreement. In that agreement, Innovative accepts the responsibility of complying with the marking statute.

Helen of Troy & Idelle

Plaintiff’s claims as to Helen of Troy and Idelle failed because they were the sort of generalized pleadings that BP Lubricants held insufficient.

Constitutionality

The Court held that § 292, the false marking statue was constitutional:

For these reasons, the Court agrees with the district court in the Pequignot case that "[a]though these mechanisms concededly do not rise to the same level of government control provided by the FCA, the FCA’s strict safeguards are not required because . . . § 292(b) represents a minimal intrusion onto Executive Branch power." Peguignot v. Solo Cup Co., 640 F. Supp. 2d 714, 728 (E.D. Va. 2009), vacated in part on other grounds, 608 F.3d 1356 (Fed. Cir. 2010).