Introsan Dental Products, Inc. v. Dentsply Tulsa Dental, 1:09-cv-03111

Introsan filed a qui tam false marking action under 35 U.S.C. § 292 against Dentsply Tulsa Dental and its parent, asserting false patent marking across multiple products.
Introsan amended its pleading multiple times, ultimately filing the Third Amended Complaint with 51 counts after the AIA’s retroactive amendments.
Dentsply moved to dismiss under Rule 12(b)(6) for failure to state a viable claim, arguing lack of pleading of competitive injury and other deficiencies.
The court discussed the § 292 framework, including the “scope” and “expired patent” claims, and considered constitutional and jurisdictional defenses.
The court granted the motion to dismiss, concluding that Introsan failed to plead a plausible competitive injury and that Lanham Act claims likewise failed on the injury element.
The court reserved judgment to enter final judgment by separate order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the retroactive AIA amendments to § 292 violate due process.	Introsan argues retroactivity violates Fourteenth Amendment due process.	Dentsply contends the amendment is constitutional and binding.	Retroactivity rejected; claims dismissed on other grounds.
Whether the § 292 claims are jurisdictionally viable post-AIA.	Introsan argues claims remain viable under § 292 despite amendments.	Dentsply asserts jurisdiction remains for viable § 292 claims.	Amendment does not strip jurisdiction; however, § 292 claims fail on pleadings.
Whether Expired Patent Claims are viable under § 292 after the AIA.	Introsan maintains some Expired Patent Claims could survive under § 292(c).	Dentsply argues Expired Patent Claims are barred.	Court would dismiss § 292 claims even if § 292(c) interpreted broadly.
Whether Introsan plausibly pleaded competitive injury under § 292(b).	Introsan asserts competitive injury from false marking.	Introsan’s allegations are speculative and conclusory.	All § 292 claims dismissed for lack of plausible competitive injury.
Whether the Lanham Act claims survive given the § 292 shortcomings.	Lanham claims attach to false advertising tied to § 292 claims.	Failure to plead injury defeats Lanham Act claim.	Lanham Act claims dismissed for lack of injury allegations.

Clontech Labs., Inc. v. Invitrogen Corp., 406 F.3d 1347 (Fed. Cir. 2005) (scope-based false marking standard under § 292)
PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111 (4th Cir. 2011) (Lanham Act elements; injury required)
Scotts Co. v. United Indus., 315 F.3d 264 (4th Cir. 2003) (factors for proprietary injury and standing in false advertising contexts)
Twombly v. Bell Atl. Corp., 550 U.S. 544 (Sup. Ct. 2007) (pleading standards; plausibility required)
Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (fact pleading; plausibility standard)