Hollander v. Hospira, No. 10 C 8151, Slip Op. (N.D. Ill. May 12, 2011) (Kendall, J.).

Judge Kendall granted defendant Hospira’s motion to dismiss plaintiff Hollander’s false patent marking claims for failure to sufficiently plead intent. But the Court gave Hollander 30 days to replead because its complaint was filed before the BP Lubricants decision on intent pleading was entered. The following items were of particular note:

• The fact that some of Hospira’s patents expired for failure to pay maintenance fees was not sufficient.
• The fact that one patent was held unenforceable was not sufficient to show intent.
• Hospira’s 10-K statements regarding its attention to third party patents were not relevant to Hospira’s knowledge of its own patents.
• Packaging inserts inside a consumer package were not relevant because a consumer could not see them before purchasing the product, and therefore, could not be swayed its decisions based upon allegedly false marking.