May 15, 2006. Thus, although Pro Patch did not assert preemption in its answer, Pro Patch raised the issue in a pragmatically sufficient time and DP Wagner has had opportunity fully to brief and respond to the issue and is not unfairly prejudiced. Accordingly, the Court will permit the preemption defense to proceed. The Federal Circuit has not held whether § 292 of the Patent Act preempts state law unfair competition claims, and conflicts with Lanham Act claims, when there is a marking of products with inapplicable patents. At least one district court has concluded that such claims are preempted unless the plaintiff proves that the defendant acted in bad faith. See Moore N. Am., Inc. v. Poser Business Forms, Inc., No. Civ. A. 97-712, 2000 WL 1480992, at *2, 5-7 (D.Del. Sept. 29, 2000) (<HOLDING>) (relying on Hunter Douglas, Inc. v. Harmonic
holding that copyright infringement defendant failed to prove the affirmative defense of unclean hands which was based on the patent holders marking of its product with an expired patent because there was no evidence that the patent holder had acted with the requisite intent to deceive holding the state law claims were not preempted holding that  1338a jurisdiction inures when a complaint establishes that federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law in that patent law is a necessary element of one of the wellpleaded claims holding patent policy incorporated by reference into patent agreement holding that lanham act and state law unfair competition claims premised on false patent marking were not preempted by the patent act because the proponent alleged that the mismarking was done in bad faith