Under the patent marking statute, 35 U.S.C. §287, and Federal Circuit authority, patentees cannot recover pre-suit damages unless and until they (or their licensees) mark their patent-practicing products or provide actual notice of infringement, where such pre-suit damages accrue from as early as six years before suit is filed.
Divided Over Damages: Courts Split On Whether Failure to Mark Precludes All, or Only Some, Pre-Suit Damages
Only a few district courts have addressed the failure to mark in recent years — but they’ve reached directly opposing conclusions. This article analyzes the conflicting authorities and their reasoning, and it provides guidance to litigants on best practices given the conflict between district courts.

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