Is a product “unpatented” for purposes of pleading a false marking claim under Section 292 where it is covered by at least one claim of one of the patents listed on the product’s label? The District of Delaware, following the Federal Circuit decision in Clontech Labs, Inc. v. Invitrogen Corp., 406 F.3d 1347 (Fed. Cir. 2005), found that the for a product to be “unpatented” the product must “not be covered by at least one claim of each patent with which the article is marked.” Brinkmeier v. Graco Children’s Products Inc., C.A. No. 09-262-JJF, Memo. Op., at 7-8 (D. Del. Feb. 16, 2010) (internal citations omitted). Along the same line, marking a product with expired patents can still constitute “actionable mismarking” even if the product is “actually patented.” Id. at 8-9. Therefore, the Court found that plaintiff adequately pled that defendant’s products are “unpatented.” Id. at 9.
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