Court Dismisses False Marking Claims Against Bayer
A Ropes & Gray litigation team has won dismissal for clients Bayer AG, Bayer Corporation, Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals, Inc., of a qui tam suit accusing Bayer of falsely marking its Baytril®, Cipro®, Fludara®, and Legend® products with expired patents. Chief Judge Jon P. McCalla of the U.S. District Court for the Western District of Tennessee issued an opinion and order on January 20, 2011, dismissing the relator’s claims for failure to sufficiently plead an intent to deceive, as required under 35 U.S.C. § 292, the false marking statute. The statue provides for a penalty of up to $500 for each falsely marked product.
The lawsuit, filed in the Western District of Tennessee on April 13, 2010, by qui tam relator Charles R. Baker, alleged that Bayer, with an intent to deceive the public, marked its Baytril®, Cipro®, Fludara®, and Legend® products with various United States patent numbers after the patents expired. Bayer moved to dismiss the complaint arguing that Baker’s claims for false marking, which sound in fraud, must be pled with particularity under Fed. R. Civ. P. 9(b) and that the complaint failed to state a claim because it was “completely devoid of any facts that supported his allegations that Bayer acted with an intent to deceive.”
Chief Judge McCalla, agreeing with Bayer, first found § 292 claims are fraud-based claims subject to the heightened pleading standard of Rule 9(b). Judge McCalla went on to conclude that aside from conclusory allegations, “[p]laintiff’s argument fails because he offers no specific facts from which the Court could infer that Bayer intended to deceive the public.” In support for his conclusion, Chief Judge McCalla noted that “the presence of expired patents on [defendant’s] products could be a simple oversight.”