Chief Judge Gregory Sleet recently denied a defendant’s motion to dismiss false marking counts of a complaint. See Devicor Medical Products, Inc. v. Biopsy Sciences, LLC, C.A. No. 10-1060-GMS, Order at 1 (D. Del. May 17, 2013). Defendant Biopsy Sciences sought to dismiss the false marking claims on grounds that the plaintiff, Devicor Medical Products, did not sufficiently plead the intent required by Rule 9(b). In his order, Judge Sleet acknowledged that Federal Circuit precedent required application of Rule 9(b)’s heightened pleading standard to false marking claims. Judge Sleet continued, however, that Devicor “is not required to prove its case at the pleadings stage. Rather, the court need only ask whether the [complaint] ‘allege[s] sufficient underlying facts from which [the] court may reasonably infer that a party acted with the requisite state of mind.’” Id. Because Devicor “offered specific allegations directed towards its position that Biopsy had knowledge of the alleged mismarking and took affirmative actions to mislead the public,” Judge Sleet found “the necessary ‘objective indication’ from which the court may draw a reasonable inference of intent” and deny the motion to dismiss. Id.
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