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Simonian v. Merck & Co., Inc., No. 10 C 1297, Slip Op. (N.D. Ill. Jul. 16, 2010) (Shadur, Sen. J.).
Judge Shadur sua sponte struck portions of defendants’ answer to plaintiff’s false patent marking case. First, the Court struck denials that followed defendants’ statements that they lacked information and belief. While a lack of information and belief acts as a denial, denying allegations as to which you cannot form a belief is “oxymoronic.”
Second, the Court struck defendants’ improper affirmative defenses. Several of defendants’ affirmative defenses were improper because they had already been brought into issue by denying allegations in the complaint. The Court also struck defendants’ Fed. R. Civ. P. 12(b)(6) affirmative defense with leave to promptly file a “properly supported” motion to dismiss.
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Continue Reading Court Sua Sponte Dismissed Affirmative Defense

Simonian v. Irwin Indus. Tool Co., No. 10 C 1260, Slip Op. (N.D. Ill. Aug. 27, 2010) (Lindberg, Sen. J.).
Judge Lindberg denied defendant Irwin Industrial Tool’s (“Irwin”) motion to dismiss plaintiff Simonian’s false patent marking case. First, the Court denied Irwin’s standing arguments. While the Federal Circuit had not yet issued its Stauffer decision regarding standing, the Court used similar reasoning. The Court analogized to the False Claims Act and held that any person had standing without proof of an injury in fact. The false marking injury is to the government and the public at large.
The Court also held that Simonian sufficiently pled the requisite intent to deceive, whether notice pleading or Fed. R. Civ. P. 9(b) standards applied. Simonian pled that Irwin was a “sophisticated company” with years of patent experience and that Irwin knew or should have known the patent was expired when it was marked.
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Continue Reading Any Person Has Standing to Bring False Patent Marking Claim

Simonian v. Bunn-O-Matic Corp., No. 10 C 1203, Slip Op. (N.D. Ill. Aug. 23, 2010) (Zagel, J.).
Judge Zagel stayed plaintiff Simonian’s false patent marking case pending the Federal Circuit’s standing decision in Stauffer – which has since issued, holding that any person has standing without regard to injury in fact.
The Court also indicated that, once the stay was lifted, it would deny defendant’s Fed. R. Civ. P. 12(b)(6) motion to dismiss Simonian’s complaint for failure to adequately plead intent to deceive pursuant to Fed. R. Civ. P. 9(b). Simonian pled that defendant knowingly marked its coffeemakers with expired patents. That was sufficient to meet the rebuttable presumption of intent as set out in Solo Cup. It did not matter that Simonian’s claims were generic as evidenced by the use of nearly identical allegations in more than forty false patent marking cases Simonian had filed in the Northern District of Illinois.
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Continue Reading Marking With Expired Patent Sufficient for Pleading Intent

Simonian v. Merck & Co., No. 10 C 1297, Slip Op. (N.D. Ill. June 1, 2010) (Shadur, Sen. J.).
In response to defendant Merck’s motion to dismiss plaintiff’s false patent marking action, the Court sent a copy of its prior decision in Zojo Solutions, Inc. v. The Stanley Works, No. 10 C 1174, Slip Op. (N.D. Ill. May 12, 2010) (Shadur, Sen. J.). In that case, the Court held that marking with expired patents was actionable and that an individual citizen could bring a false marking action pursuant to 35 U.S.C. § 292. The Court ordered the parties to appear on the notice date to discuss the course of the litigation.
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Continue Reading False Patent Marking Standing Motion Decided Without Briefing