IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
April 15, 2011
SAN FRANCISCO TECHNOLOGY INC.,
ELKAY PLASTICS COMPANY, INC.,
The opinion of the court was delivered by: W Illiam A Lsup United S Tates D Istrict Judge
ORDER GRANTING 9 MOTION TO DISMISS
This order holds that marking an article made via a patented method with the patent 13 number of the method patent does not constitute false marking merely because the public cannot 14 immediately tell whether the number refers to a method patent instead of an apparatus patent. 15 Section 292 of Title 35 has never been construed to go so far. The decision relied on by plaintiff 16 arose in a different context and is not controlling. Clontech Labs., Inc. v. Invitrogen Corp., 17 406 F.3d 1347 (Fed. Cir. 2005). Section 287(b)(4)(c), moreover, would seem to bless the very 18 marking scheme challenged here. See also Am. Med. Sys., Inc. v. Med. Eng'g Corp., 19 6 F.3d 1523, 1539 (Fed. Cir. 1993). Until the Federal Circuit approves the extension of false 20 marking cases into this genre of cases, the best course is to dismiss without leave to amend and let 21 plaintiff have a try at establishing appellate authority for the theory here proposed. 22 The motion to dismiss is GRANTED without leave to amend. Judgment will be 23 entered accordingly.
IT IS SO ORDERED.
United States District Court For the Northern District of California
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