OPINION
These matters come before the Court on motions by Plaintiff/Counterclaim Defendant M. Eagles Tool Warehouse, Inc. d/b/a S & G Tool Aid Corp. (“S & G”), Defendant Steven Fisher, in his individual capacity (“Fisher”), and Defendant/Counterclaim Plaintiff Fisher Tooling Company, Inc. d/b/a Astro Pneumatic Tool Company (“Astro”). 1
For the reasons set forth below, this Court: (1) GRANTS Defendant Fisher’s motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction; (2) GRANTS Astro’s motion for summary judgment as to S & G’s tortious interference with contractual relations; (3) GRANTS Astro’s motion for summary judgment as to S & G’s false marking claim, pursuant to 35 U.S.C. § 292; and (4) DENIES Astro’s motion for summary judgment as to S & G’s (a) unfair competition claims (both at common law and pursuant to the New Jersey Fair Trade Act), and (b) tortious interference with prospective economic advantage claim. This Court also: (1) GRANTS S & G’s cross-motion for summary judgment as to its (a) § 43(a) Lanham Act claim, (b) attorneys’ fees claim, pursuant to 35 U.S.C. § 292, (c) unfair competition claim (both at common law and pursuant to the New Jersey Fair Trade Act), and (d) tortious interference with a prospective business advantage claim; and (2) DENIES S & G’s cross-motion for summary judgment as to its false marking claim.
1. THIS COURT’S PREVIOUS OPINION
In a previous Opinion in this matter,
M. Eagles,
In addition, this Court granted S & G’s summary judgment motion as to its § 43(a) Lanham Act claim. 2 Id. at 505-07. In that claim, S & G alleged that by marking its eraser wheels as covered under the ’914 patent or as “patent pending,” Astro deceived the consumer market, in violation of the Lanham Act. Id. In granting S & G’s claim, this Court noted that Astro’s motivation and intent did not affect *310 the Court’s analysis under the Act because “there is no requirement under the Lan-ham Act that a false representation be made willfully or with intent to deceive. A mistake is not a defense to an action under [the Lanham Act].” Id. at 506 (alteration in original) (citations omitted).
As to S & G’s motion for summary judgment as to its false marking claim, pursuant to 35 U.S.C. § 292, this Court concluded that S & G failed to demonstrate that no genuine issue as to a material fact existed concerning Astro’s intent to deceive the consumer public. Id. at 505. As to S & G’s motion for summary judgment on its claim for attorneys’ fees, pursuant to 35 U.S.C. § 285, and motion for sanctions, pursuant to Fed. R. Crv. P. 11, 3 this Court concluded that S & G had submitted insufficient evidence to persuade this Court that it was entitled to relief as a matter of law. Id. at 507-508.
II. CLAIMS PRESENTED IN THE INSTANT MOTIONS
A. Motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c)
In its motion for summary judgment, pursuant to Fed. R. Crv. P. 56(c), Astro
*311
requests that this Court: (1) grant summary judgment in its favor as to S & G’s claims for (a) unfair competition (both at common law and pursuant to the New Jersey Fair Trade Act), and (b) S & G’s claims for tortious interference with prospective economic advantage and tortious interference with contractual relations, in light of the Federal Circuit’s holding in
Zenith Electronics Corporation v. Exzec Incorporated,
Conversely, S & G’s cross-motion for summary judgment requests that this Court grant summary judgment in S & G’s favor as to: (1) its Lanham Act claim 5 ; (2) its attorneys’ fees claim, pursuant to 35 U.S.C. § 285; 6 (3) its false marking claim; and (4) its claims for unfair competition (both common law and statutory) and tor-tious interference with prospective economic advantage. 7
B. Defendant Fisher’s motion to dismiss for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2)
A district court may exercise personal jurisdiction over a nonresident of the state in which that court sits only to the extent authorized by the laws of New Jersey.
Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n,
In the instant matter, Defendant Fisher renews a previously filed motion to dismiss S & G’s complaint as to him- — as an individual — for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). S & G does not provide argument in opposition to Defendant Fisher’s renewed motion; in fact, S & G consents to the motion. (Pl.’s Mem. at 31.) This Court, therefore, dismisses S & G’s complaint — in its entirety — to the extent that it seeks relief from Fisher, in his individual capacity. 8
C. Standard of review for a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c)
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party’s entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett,
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists.
Jersey Cent. Power & Light Co. v. Lacey Township, 772
F.2d 1103, 1109 (3d Cir.1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial.
Anderson v. Liberty Lobby, Inc.,
*313
If the nonmoving party has failed “to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial, ... there can be ‘no genuine issue of material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co.,
D. S & G’s cross-motion for summary judgment as to its Lanham Act claim
1. The effect of Zenith on this Court’s previous analysis of S & G’s Lanham Act claim
In this Court’s previous Opinion, it partially granted and partially denied S & G’s motion for summary judgment. Specifically, this Court’s determination that Astro’s actions violated the Lanham Act relied upon the principle that “there is no requirement under the Lanham Act that a false representation be made wilfully or with intent to deceive.”
M. Eagles,
After this Court issued its Order, but before this Court issued its Opinion in support of that Order, the Federal Circuit issued its opinion in
Zenith Electronics Corporation v. Exzec Incorporated,
[A] patentee’s statements regarding its patent rights are conditionally privileged under the patent laws, so that such statements are not actionable unless made in bad faith.
Id. at 1353. Thus, the Circuit concluded that:
[B]efore a patentee may be held liable under § 43(a) for marketplace activity in support of its patent, and thus be deprived of the right to make statements about potential infringement of its patent, the marketplace activity must have been undertaken in bad faith. This prerequisite is a function of the interaction between the Lanham Act and patent law, and is in addition to the elements required by § 43(a) itself, as § 43(a) alone does not require bad faith.
Id. (emphasis added).
In light of the language in Zenith, which is directly contrary to this Court’s rationale with respect to S & G’s Lanham Act Claim, this Court will set aside its prior findings and reevaluate S & G’s Lanham Act claim. This Court notes, however, that Zenith does not alter this Court’s analysis as to the elements required by § 43(a) itself. As the Federal Circuit noted, the bad faith requirement is “in addition to the elements required by § 43(a),” and “give[s] effect both to the rights of patentees as protected by the patent laws under ordinary circumstances, and to the salutary purposes of the Lanham Act to promote fair competition in the marketplace.” Id. at 1353-1354. In concluding *314 that Astro’s motivation and intent were irrelevant to a determination of liability under the Lanham Act, this Court reached a conclusion which has since proven unsupportable. Accordingly, this Court’s previous analysis of S & G’s Lanham Act must be reevaluated, but only to the extent that it did not require evidence that Astro acted in bad faith. 9
2. Reevaluation ofS & G’s cross-motion for summary judgment as to S & G’s Lanham Act claim in light of Zenith’s “bad faith” requirement
In or about October 1996, Astro charged S & G, in writing, with infringement of the ’914 patent. 10 Astro stated its belief that “S & G’s sales of rubber eraser pads in the United States are contributing to or inducing others to infringe the ’914 patent, in violation of 35 U.S.C. § 271(b) and (c).” (Second Amended Compl., Ex. 5, October 8, 1996 Letter.) Astro further indicated that it would not “hesitate to initiate litigation to enforce its rights and recover all applicable damages and costs.” Id. Instead of instituting a lawsuit against S & G for infringement, however, Astro began to alert the industry that anyone selling S & G’s eraser wheels could be subject to liability for infringement of the ’914 Patent. Specifically, Astro sent letters to S & G’s customers claiming that: S & G’s eraser wheels infringe the ’914 Patent; and use of S & G’s eraser wheel “in a tool that is not made by [Astro] infringefs] the patent.” (Second Amended Compl., Ex. 7.) The letters offered S & G’s customers three options: (1) discontinue the sale of S & G erasers; (2) screen all customers and refuse to sell the S & G wheel “to anyone that would use it with a tool not made by Astro”; or (3) continue infringing the ’914 Patent. Id.
The
Zenith
court did not elucidate a test for determining bad faith, instead it advised that “what constitutes bad faith remains to be determined on a case by case basis.”
Astro is entitled to a presumption of good faith.
The Gleason Works v. Oerlikon Geartec, AG,
a. The Lindner Reports
In support of its argument that Astro acted in bad faith, S & G submits an expert report and a supplemental report prepared by Melvin Lindner, an engineer. 11 Melvin Lindner is a licensed professional engineer in New York State. (Cert, of Harold James submitted in Support of Mot. for Summ. J., Ex. 3 (hereinafter “Lindner Report ”).) According to his resume,. Lindner has over thirty years of experience as an engineer, including six years of expertise as a consulting engineer in the fields of residential and commercial budding renovation and construction. Lindner also holds patents on three tools, although none of those tools are described or explained to this Court. Indeed, although Lindner holds an expansive level of engineer expertise, it does not appear that Lindner has any expertise with automotive tools or tools similar to those at issue in the instant litigation. •
Lindner states that there is a close similarity of the internal parts of the Model 533 driver as compared to the Model 220 driver. (Lindner Report; Cert. of Harold James submitted in Support of Mot. for Summ. J., Ex. 4 (hereinafter “Supp. Report ”)(collectively “Lindner Reports ”).) The Lindner Reports further assert that the similarity of the air controls and the common use of particular parts in other grinding topis support the PTO’s initial denial of most of Astro’s patent claims as obvious based upon prior art. S & G argues that the Lindner Reports demonstrate Astro’s bad faith behavior, both before the PTO and in the consumer market. 5 & G further argues that the similarity of the internal mechanics of the drivers renders any attempt to patent a particular driver misleading — if not outright fraudulent.
This Court finds that the Lindner Reports fail to provide persuasive evidence demonstrating that Astro acted, or intended to act, in an actual or constructively fraudulent manner. Moreover, the reports shed no light on whether Astro knew that the ’914 patent was unenforceable when it threatened Defendants with infringement. Indeed, while the assertions set forth by his reports as to basic mechanical structures may be accurate, Lindner does not conclude that Astro necessarily acted in a fraudulent manner because of the identified similarities. Indeed, such a conclusion by Lindner would be speculative, at best. It would appear that S & G seeks to argue that when a patent covers a tool that is comprised of working parts similar to a pre-existing tool, the patenting party is seeking to mislead or defraud the consuiner market. There is no basis in law for such a conclusion, and more important, S 6 G has failed to provide support for such a conclusion. This Court, therefore, concludes that the Lindner Reports fail to establish that Astro acted in bad faith.
*316 b. Astro’s inequitable conduct before the PTO
Additionally, S & G contends that Astro’s inequitable conduct before the PTO-previously determined by this Court-coupled with its zealous attempts to enforce its patent constitute evidence of bad faith.
12
Astro responds that this Court’s finding of unenforceability of the ’914 patent .does not support a finding of bad faith. Astro cites
Pro-Mold and Tool Co. v. Great Lakes Plastics, Inc.,
75.F.3d 1568, 1571 (Fed.Cir.1996), for the proposition that “there is no legal basis for a holding that inequitable conduct, or the assertion of a patent procured through inequitable conduct constitutes unfair competition.”
See also Concrete Unlimited v. Cement-craft, Inc.,
However, contrary to Astro’s arguments, neither
Pro-Mold
and
Concrete Unlimited
on the one hand, nor the propositions for which they are cited on the other, preclude this Court from relying upon Astro’s inequitable conduct before the PTO as evidence of Astro’s bad faith. As noted earlier, bad faith is an element “in addition to [those] required by § 43(a).”
Zenith,
Similarly, Astro points to Chemical Unlimited in support of its belief that “a finding of invalidity or unenforceability due to alleged inequitable conduct before the PTO does not support a finding of bad faith.” In Dow Chemical, supra, the Federal Circuit examined the applicability of Concrete Unlimited in the context of an unfair competition claim:
[In Concrete Unlimited,] [t]his court held that the patent-holder had the right to enforce its patent until the patent was found invalid and that such enforcement *317 did not constitute unfair competition. Significantly, the district court had held that the patent-holder had not engaged in inequitable conduct (although the patent was held to be invalid for obviousness) and this ruling was not disturbed by the court. Thus, in Concrete Unlimited, the good faith enforcement of a reputedly unenforceable patent was held not to constitute unfair competition. The instant case, however, concerns an allegation of bad faith enforcement of a reputedly unenforceable patent. Unlike Concrete Unlimited, the tortfeasor here allegedly knew that its patent was unenforceable when it engaged in market misconduct.139 F.3d at 1476 .
The dichotomy examined in Dow Chemical is present here: S & G alleges that Astro knew that the ’914 patent was unenforceable when it threatened to sue S & G and S & G’s customers. Thus, Concrete Unlimited does not hold that a Lanham Act claim based in part on inequitable conduct could not, as a matter of law, succeed. See id.
Indeed, Astro does not allege, nor can this Court find any authority suggesting, that Astro’s inequitable conduct before the PTO may not serve as evidence of Astro’s bad faith in its subsequent contacts with S & G and S
&
G’s customers in the marketplace.
See id.
at 1477-78 (suggesting that alleged inequitable conduct before the PTO may serve as proof of bad faith in intentional interference with contractual relations claim);
Rhenalu v. Alcoa, Inc.,
This Court therefore concludes that As-tro’s threats to S
&
G and S & G’s customers regarding a patent secured through inequitable conduct before the PTO were made in bad faith. Such a determination does not unfairly encroach upon Astro’s right to enforce its patent.
See Zenith,
E. Asfro’s motion and S & G’s cross-motion for summary judgment as to S & G’s false marking claim
In its previous Opinion, this Court observed that S & G had not demonstrated that Astro marked its eraser wheels with
*318
the ’914 patent number or the term “patent pending” in an intentional attempt to deceive its customers.
M. Eagles,
The false marking law provides that:
[wjhoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented for the purpose of deceiving the public ... [s]hall be fined not more than $500 for every such offense.
35 U.S.C. § 292(a). “Requisites for liability under § 292 include that the advertising or use of the word ‘patented’ be made in conjunction with a device which is not patented
and an intent to deceive.” Sadler-Cisar, Inc. v. Commercial Sales Network, Inc.,
Astro avers that its Smart Eraser pads are covered by the ’990 patent, and thus its “patent pending” marking was not misleading. Additionally, Astro contends that *319 S & G has failed to proffer any evidence suggesting that Astro used the' “patent pending” mark with an intent to deceive the public. In response, S & G submits one page from a document which purports to be a patent application in support of the ’620 patent. 16 (Harold James Cert., dated January 16, 2001, Ex. 15.) S & G argues that because the ’620 patent states that Astro’s eraser pad is not covered by the ’990 patent, Astro must have intended the market to assume that the pad was covered by the ’914 patent.
However, S & G fails to cite a single authority for the proposition that this Court should accept the allegations of a third party as to the applicability of a patent to a particular product. Moreover, S & G does not contest Astro’s statement that the wheel reviewed under the ’620 patent “was of an old black Astro eraser wheel product that never bore a patent pending mark,” and is distinct from the tan-colored Astro Smart Eraser pad which was stamped “patent pending.” (Def.’s Reply Mem. at 11; Steven Fisher Decl., dated November 20, 1997 ¶¶4, 5; Steven Fisher Deck, dated October 29, 1998 ¶ 10.)
In fact, S & G fails to offer any persuasive evidence that Astro acted with an intent to deceive in its act of stamping “patent pending” on its products. Astro admits that it marked some of its Eraser pads with the ’914 patent number due to its belief that the ’914 patent covered the pad’s use with Astro’s pneumatic driver. (Fisher Declaration, dated October 29, 1998 ¶ 11.) However, Astro’s marking of some of its pads with the ’914 patent does not, by itself, indicate that Astro was also referring to the ’914 patent (as opposed to the ’990 patent) when it marked other pads with “patent pending.” S & G does not challenge the validity of the ’990 patent. Similarly, other than offering the ’620 patent application, S & G does not offer evidence disputing whether the ’990 patent actually covers Astro’s Eraser pads. Thus, even if S & G had carried its burden of proof-and this Court concludes that it has not-Astro has offered sufficient rebuttal evidence of its good faith in using the “patent pending” mark. Accordingly, As-tro’s motion for summary judgment as to S & G’s false marking claim is granted, and S & G’s cross-motion as to its false marking claim is denied.
See e.g., Arcadia,
F. Astro’s motion and S & G’s cross-motion for summary judgment as to S & G’s tortious interference and unfair competition claims
Pursuant to
Zenith, supra,
this Court must first determine whether S & G’s state law claims for tortious interference and unfair competition are preempted by federal patent law. The
Zenith
court held that “state court claims, including tortious interference claims, based on publicizing a patent in the marketplace are not
*320
preempted by the patent laws if the claimant can show that the patentholder acted in bad faith in its publication of the patent.”
This Court has already determined that Astro’s threats to S & G’s customers were made in bad faith in its evaluation of S & G’s Lanham Act claim. As Astro argues, S & G’s state tort claims “are all essentially unfair competition claims alleging injury as a result of Astro’s notice of infringement letters.” (Astro’s Mem. at 9.) This Court’s analysis and conclusion that Astro’s statements to S & G’s customers constituted bad faith therefore apply with equal force to S & G’s tortious interference and unfair competition claims. Accordingly, S & G’s state tort claims are not preempted by federal law. 17
1. Tortious interference 18
“An action for tortious interference protects a business entity’s right ‘to pursue [its] business, calling or occupation free from undue influence or molestation.’ ”
Printing Mart-Morristown v. Sharp Electronics Corp.,
Malice is not used [as part of a tortious interference claim] in its literal sense to mean ‘ill will’; rather, it means that harm was inflicted intentionally and without justification or excuse. It is determined on an individual basis, and the standard is flexible, viewing the defendant’s actions in the context of the facts presented. Often it is stated that the relevant inquiry is whether the conduct was sanctioned by the ‘rules of the game,’ for where a plaintiffs loss of business is merely the incident of healthy competition, there is no compen-sable tort injury. The conduct must be injurious and trangressive of generally accepted standards of common morality or of law. The line is clearly drawn at conduct that is fraudulent, dishonest, or illegal and thereby interferes with a competitor’s economic advantage. La-morte,770 A.2d at 1170-71 .
S & G “bears the burden of proving the absence of justification.”
Mac Dougall v. Weichert,
It is undisputed that Astro contacted businesses from which S & G had a reasonable expectation of an economic advantage.
19
(Second Amended Compl. ¶ 12; Exhs. 7, 8.) Moreover, it is clear that S & G suffered economic losses due to Astro’s contacts with S & G’s customers and vendors: at least one party has signed a stipulation to no longer purchase S
&
G products in exchange for release from the present litigation.
(See e.g.,
Michael Doane Decl., Exh. 1, Stipulation of Dismissal by Counterclaim Defendant C.R.C. Line, Inc., dated July 14, 1998.) Thus, the critical issue before this Court is whether Astro’s interference was “without justification or excuse”, and thus malicious.
Mac-Dougall,
S & G maintains that, by sending letters to S
&
G’s customers and potential customers in the market, rather than filing suit against S
&
G, Astro acted in a manner intending to damage S
&
G’s status in the tool market. Generally, however, a patentee has no obligation to litigate its patent rights in lieu of notifying alleged infringers.
Mirafi, Inc. v. Murphy,
No. 90-1074, slip op. at 3 (Fed.Cir.1991). Nonetheless, this Court finds that Astro’s actions fall outside of the “generally accepted standards of common morality.”
Lamorte,
Indeed, this Court can conceive of no circumstance where Astro’s aggressive publication of a fraudulently procured patent would be considered “sanctioned by the rules of the game.” Id. at 1170. Accordingly, this Court finds that Astro’s interference with S & G’s prospective busi *322 ness was malicious, and grants S & G’s cross-motion for summary judgment as to its tortious interference with prospective economic advantage claim. Astro’s motion as to this claim is therefore denied.
2. Unfair competition 20
S
&
G argues, and this Court agrees, that its common law unfair competition claim is essentially the same as its Lanham Act claim.
21
See SK&F Co. v. Premo Pharmaceutical Laboratories, Inc.,
Accordingly, this Court does not repeat its analysis of S & G’s Lanham Act claim here. For the same reasons that this Court grants S & G summary judgment as to its Lanham Act claims, it also grants S & G summary judgment as to its state law unfair competition claims.
Id.
(“For the same reasons defendants violated Section 43(a)(1)(A) of the Lanham Act, defendants are also guilty of common law unfair competition.”);
See also SK&F,
G. S & G’s cross-motion for summary judgment as to its attorneys’ fees claim
In its previous Opinion, this Court denied S & G’s application for attorneys’ fees. Specifically, this Court concluded that despite its finding that Astro had engaged in inequitable conduct before the PTO, there was no evidence establishing that the case was so exceptional as to warrant the grant of attorneys’ fees.
M. Eagles,
In 2001, after, the filing of this Court’s previous Opinion, the Federal Circuit issued its opinion in
Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp.,
Astro relies on the Federal Circuit’s decision in
Reactive, supra,
for the proposition that “[a] finding of exceptional.circumstances does not.. .mandate an award of attorney[s’] fees.” 769 F.2d ,at 1582. In
Reactive,
the Federal Circuit overturned a district court’s award of attorneys’ fees, concluding that a “case cannot be found ‘exceptional’ under § 285 because of um conscionable conduct during discovery.”
Id.
at 1585. Thus, the Federal Circuit’s decision was based entirely on the district court’s error in concluding that the facts before it constituted an exceptional case. Conversely, in the instant case, the parties do not challenge the basis for a finding of exceptional circumstances, i.e., this Court’s conclusion that Astro engaged in fraud before the PTO. Rather, the parties dispute whether the facts before this Court support the exercise of its discretion in favor of awarding attorneys’ fees to S
&
G.
Rohm & Haas,
Despite Astro’s assertions that S & G has failed to demonstrate any unfairness or bad faith on its part, this Court finds that attorneys’ fees are warranted in the instant case. Not only is there clear and convincing evidence of inequitable conduct before the PTO, but as discussed above, Astro’s assertions of infringement to S & G and S & G’s customers were made in bad faith. See id. at 693 (“Attorney fee awards have also been affirmed by this court when the basis for finding the *324 case to be ‘exceptional’ was ‘fraud’ in procuring the patent sued upon as well as misconduct during suit and a bad faith assertion of infringement.”) Astro has not proffered any reason persuading this Court to reserve its discretion in awarding attorneys’ fees to S & G. Accordingly, this Court grants S & G’s cross-motion for summary judgment as to its claim for attorneys’ fees.
III. CONCLUSION
For the reasons stated above, this Court: GRANTS Defendant Fisher’s motion to dismiss for lack of personal jurisdiction; GRANTS Astro’s motion for summary judgment as to S & G’s tortious interference with contractual relations; GRANTS Astro’s motion for summary judgment as to S & G’s false marking claim; and DENIES Astro’s motion for summary judgment as to S & G’s unfair competition (both common law and statutory) and tortious interference with prospective economic advantage claims. Additionally, this Court: GRANTS S & G’s cross-motion for summary judgment as to its Lanham Act, attorneys’ fees, unfair competition (both common law and statutory), and tortious interference with a prospective economic advantage claims; and DENIES S & G’s cross-motion for summary judgment as to its false marking claim.
Notes
. For a detailed discussion of the facts that give rise to the instant litigation, see
M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Company, Inc.,
. Section 43(a) of the Act, codified at 15 U.S.C. § 1125(a), states that:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, *310 term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
(2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.
(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.
. Rule 11 states, in relevant part, that:
[b]y presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1)it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentia-ry support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Fed. R. Civ. P. 11(b). The Rule further states that:
[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
Id. at 11(c).
.Section 292 states that:
(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States the name or any imitation of the name of the patentee, the patent number, or the words "patent,” "patentee,” or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any un-patented article, the word "patent” or any word or number importing that the same is patented, for the purpose of deceiving the public; or
Whoever marks upon, or affixes to, or uses in advertising in connection with any article, the words "patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public—
Shall be fined not more than $500 for every such offense.
(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.
. As aforementioned, in its previous Opinion, this Court granted S & G's motion as to its Lanham Act claim. Although Astro does not seek this Court's reevaluation of its earlier decision in light of the Federal Circuit's opinion in Zenith, supra, S & G requests that this Court reaffirm its earlier decision regarding S & G's Lanham Act claim. (Defs.’ Mem. at 1, n. 1; Pl.’s Mem. at 5.)
. Section 285 states that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.”
. As discussed more fully, infra, S & G consents to Astro's motion as it pertains to the dismissal of this action against Defendant Fisher. (Pl.’s Mem. at 31.) In addition, S & G consents to this Court's grant of summary judgment in favor of Astro as to its claim for tortious interference with contractual relations (as distinguished from S & G's claim for tortious interference with prospective economic advantage). (Id. at 33.)
. The Fourteenth Amendment permits a state to exercise jurisdiction over an out-of-state defendant if that defendant has "minimal contacts” with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
Int’l Shoe Co. v. Washington,
. This Court also notes that Zenith does not alter this Court’s previous conclusion that the '914 patent was unenforceable. Defendants do not now dispute that they had failed to inform the PTO of the existence of its Model 220 driver, or that said failure had raised a reasonable inference that Defendants acted in a manner intended to deceive the PTO. Defendants also do not now dispute the fact that Defendants' failure to advise the PTO of the existence of the Model 220 driver constituted failure to advise that Office of relevant prior art. As a result, the record supported and continues to support a conclusion of inequitable conduct before the PTO on the part of Defendants, rendering the '914 patent unenforceable.
. The facts concerning Astro's enforcement of its patent are undisputed. For convenience, the relevant facts are recapitulated from this Court's previous Opinion.
See M. Eagles,
. Astro objects to the qualifications of, and reports submitted by, Melvin Lindner. Specifically, Astro argues that Lindner does not have, nor does S & G proffer, evidence to support that Lindner has the requisite credentials to qualify as an expert in the design and operation of pneumatic drivers. (Defs.' Reply Mem. at 8-9.). Rather than exclude Lindner's reports, however, this Court concludes that after a thorough investigation the reports do not provide credible evidence tending to demonstrate that Astro acted in bad faith.
. Specifically, S & G questions, "How else can one characterize defendants' failure to advise the, Examiner of seven obviously relevant prior art devices, some even having geared-down output speeds, that Astro could not possibly have overlooked and then to charge the trade on a wholesale basis with infringement, when there was no infringement even had the patent been valid, and to intimidate the trade with overblown threats, and then to continue this litigation after defendants [sic] original misdeeds before the Patent Office had been made of record in the 1998 deposition of Stephen Fisher?” (Pl.’s Reply. Mem. at 5.)
. In its previous Opinion, this Court determined that: (1) Astro made false representations about its eraser wheels, when it marked them with the '914 patent or the term "patent pending”; (2) Astro’s eraser wheels traveled in interstate commerce; (3) Astro's misrepresentations, coupled with its letters to S & G’s customers, had the impact of deceiving S & G's customers and of diverting sales from S & G to Astro; and (4) Astro’s statements to S & G’s customers were an incorrect and misleading recitation of the law, and thereby caused injury to S & G.M.
Eagles,
. This Court interprets “patent pending” to refer to a pending
application
for a patent.
See Arcadia Machine & Tool, Inc. v. Sturm, Ruger & Co., Inc.,
. Although S & G's moving papers charge Astro with false marking for both the "patent pending” stamp and the ’914 patent number marking, this Court notes that the Second Amended Complaint refers only to Astro's use of the "patent pending” mark. (Second Amended Compl. ¶ 35; compare with First Amended Compl. ¶ 35.) S & G offers no explanation for this omission. Thus, this Court's analysis is limited to whether Astro’s use of the "patent pending” mark on its eraser wheels constituted false marking.
See Nat’l Rural Elec. Cooperative Assoc. v. Breen Capital Services Corp.,
. In his certification, Harold James describes the single-page document as "a true copy of a page from the official file history of 3M owned Patent No. 5,190,620...” (James Cert. ¶ 18.) Astro suggests that this document is inadmissable hearsay. (Defs.’ Reply Mem. at 11.) To be sure, the document proffered by S & G is plainly incomplete: although it is marked with the page number "9,” no other pages are attached. (James Cert., Ex. 15.) Moreover, there is no identifiable title, date, or author on the page. {Id.) As a result, the persuasive weight of this document is questionable at best. See Fed.R.Civ.P. 56(e) (“Supporting and opposing affidavits shall.. .set forth such facts as would be admissible in evidence...”) Nonetheless, because this Court concludes that the document does not constitute evidence of Astro’s intent to mislead, it does not decide whether the document is admissible for the purposes of the instant motions.
. To its disadvantage, Astro challenges S & G’s state tort claims only on the issue of the bad faith requirement. Nonetheless, this Court will examine the elements of tortious interference and unfair competition as defined by New Jersey courts in evaluating As-tro's motion and S & G’s cross-motion for summary judgment as to S & G's state tort claims. (A federal court whose jurisdiction over a state claim is based on diversity,
Klaxon Co. v. Stentor Electric Manufacturing Co.,
. The Second Amended Complaint states causes of action against Astro for both tor-tious interference with contractual relations and tortious interference with prospective economic advantages. (Second Amended Compl. ¶¶ 29, 32.) The requirements for each claim, discussed
infra,
are identical except that the tortious interference with contractual ■ relation's claim requires proof of an existing contract.
Coast Cities Truck Sales, Inc. v. Navistar Int’l Transp. Co.,
. Astro admitted that it "sent notice of infringement letters to tool distributors and sellers to inform them that sales of S & G’s 'Autobody Eraser Wheel' product infringe the '914 patent..." (Answer to Second Amended Compl. ¶ 12.)
. Specifically, the parties seek summary judgment as to S & G’s unfair competition claims, raised separately in the Second Amended Complaint, pursuant to New Jersey common law and the New Jersey Fair Trade Act, N.J. Stat. Ann. § 56:4-1. (Second Amended Compl. ¶¶21, 27.) N.J. Stat. Ann. § 56:4-1 states: “No merchant, firm or corporation shall appropriate for his or their own use a name, brand, trade-mark, reputation or goodwill of any maker in whose prod,uct such merchant, firm or corporation deals.”
. The parties’ briefs only minimally distinguish the elements of New Jersey's common law unfair competition claim, and those required by N.J. Stat. Ann. § 56:4-1. (Pl.’s Mem. at 28-31.) This Court’s review of the relevant case law shows a disagreement as to whether the two causes of action are identical. See Duffy v. Charles Schwab & Co., Inc., 97 F.Supp.2d 592, 600 n. 7 (D.N.J.2000). Although this Court disposes of the two claims similarly, it makes no determination as to the whether and how they are distinguishable. Id.